Recently I have had the great pleasure of convening the SLS Annual Seminar – The Human Rights Act After 22 Years. Rather than formal papers, and yet another edited collection, it was agreed that following the event we would try to capture the contributions in a series of blog posts for the UKCLA Blog. Having learned so much during the seminar, I am now getting things started with this short post.
Describing the place of human rights in the Constitution of the United Kingdom is no easy task. Rather than a fixed place, first impressions are of a swirling morass of competing conceptions. Human rights might be revered or seen as something other than ‘real’ constitutional law – an optional ‘morality extra’ that can be dispensed with should the need arise. There is a long-standing confusion between rights and liberty (or freedom) and an ingrained assumption that all of our human rights are amply protected by the common law. There is also the belief that human rights have been foisted upon us by European institutions and, once we have extricated ourselves from their grasp, we can return to the protection of, the very different, ‘British rights’ and ‘British values’.
These impressions are, of course, not entirely accurate and when describing the place of human rights in the UK constitution, facts, and clarity, are key. First it is important to establish that whilst the claim ‘human rights are enshrined’ in the UK constitution may be a step too far, it is undeniable that some human rights are protected by the UK constitution. This is primarily through the Human Rights Act 1998, but also by common law, primary and secondary legislation, and international law. Our core institutions, including Parliament, the executive, and the judiciary, all play an important constitutional role in ensuring that this protection is effective.
Nevertheless, the place of human rights in the UK constitution is precarious. Since coming into force in 2000, the Human Rights Act has been subject to harsh criticism from a variety of sources. The concerns are wide-ranging but tend to converge around the feeling that the Act gives national judges, and judges of the European Court of Human Rights, too much power over Parliament and government. This is a common refrain in many democracies similar to the UK, but our answer is unusual. Rather than a contained response to a particular judgment, the solution most often proposed is to repeal or amend the HRA and/or leave the ECHR system of protection. In keeping with this tradition, the Bill of Rights Bill 2022 currently before Parliament proposes to repeal the HRA without only a manifesto commitment on the part of the Conservative Party to ’update’ it. Although Parliament decided in 1998 to drastically improve the protection of human rights, parliamentary sovereignty makes rights protection uniquely vulnerable to the prevailing political winds.
Despite this long-standing focus on the failings of the HRA, and the ECHR, for most of us the constitutional protection of human rights remains opaque. Limited access to justice is an insurmountable barrier to challenging in court the state’s decisions on human rights grounds. There is also a human rights knowledge deficit, made worse by the limited resources available to the Equality and Human Rights Commission. Throughout the pandemic the debates and protests about locking down and wearing masks to protect others did much to show that public understanding of human rights, such as the right to life, and corresponding duties on others, is far from perfect. Appeals to Magna Carta are of little use to those unable to take time off from front-line public facing jobs.
This lack of knowledge, and understanding, feeds into a disproportionate focus on human rights at the UK level even though, alongside the Human Rights Act, human rights initiatives in the devolved parts of the UK have also taken off. Taking into account developments in human rights protection in Scotland and Wales, and the lack of development for England it would seem that the place of human rights in the UK constitution is rapidly becoming asymmetrical. The Scottish Government has announced its ambitious plans for a Human Rights Bill incorporating into Scottish law major UN human rights treaties including the International Covenant on Economic, Social and Cultural Rights. In August 2021 the Welsh Government released a report it commissioned on strengthening advancing equality and human rights in Wales followed up by its robust commitments in May 2022.
Despite the movement in some nations, given the precariousness of the HRA and the UK’s membership of the ECHR system, lots of time and energy is expended by human rights defenders on retaining the status quo leading to the conclusion that the place of human rights in the UK Constitution is static. Regression is always a possibility, but it is also important to pay attention to moving forward. There is, understandably, little capacity to respond to the latest round of ‘repeal the HRA’ with a demand for something better. Most would also agree that it is wise to be pessimistic about any new human rights instrument offered up by the state for approval, such as the Bill of Rights Bill. But should that mean national rights protection through law in this country has reached its zenith? The UN General Assembly recently voted to recognise the right to a ‘clean, healthy and sustainable environment’. How long should we have to wait until this right is reflected in UK law? Is the HRA, or the Bill of Rights Bill, really the best that we can do?
My final word to describe the place of human rights in the UK constitution is ‘contested’. The assumption set out in the White Paper accompanying the Human Rights Bill that the rights guaranteed under the ECHR are ones with which the people of this country are ‘plainly comfortable’ has been put to the test, and we are not quite there yet. No major political party has ever been entirely comfortable with human rights law and this absence of leadership has trickled down. The promise to repeal the HRA and reduce human rights protection now sits at the heart of contemporary political discourse, a never-ending distraction from far more serious problems.
In this series of blog posts we hope to make some contribution towards reducing the uncertainty, conflict, and contestation surrounding human rights protection and towards moving the place of human rights in the UK Constitution away from precarious and much closer to fundamental and accepted.
Merris Amos, Professor of Human Rights Law, Queen Mary University of London
(Suggested citation: M. Amos, ‘The place of human rights in the Constitution of the United Kingdom’, U.K. Const. L. Blog (9th November 2022) (available at https://ukconstitutionallaw.org/))