Do we need the Human Rights Act 1998?

The government has recently outlined proposals to revise the Human Rights Act and replace it with a Bill of Rights. These proposals follow on from Justice Secretary Dominic Raab’s earlier pledge to overhaul the Human Rights Act before the next general election.  While threats to repeal or reform the Human Rights Act are not new, the risk of reform appears to be growing amidst a climate of hostility towards individual human rights. What is the Human Rights Act 1998 and why is it important?

What is the Human Rights Act 1998?

The Human Rights Act 1998 is a piece of UK legislation that incorporates the rights contained within the European Convention on Human Rights (‘ECHR’) into UK domestic law. The ECHR has its origins in the aftermath of the Second World War and provides essential protections for universal human rights such as the right to life, right to a fair trial, prohibition on slavery, prohibition on torture and freedom from discrimination. The Human Rights Act ensures that if the State or any other public body breaches those rights contained in the ECHR, a claim can be brought in the UK domestic courts.

The Human Rights Act grants individuals the ability to hold the state to account for a wide range of abuses including abuses of police powers, failures to adequately investigate crimes, failures to protect the life of individuals in the care of the state, excessive restrictions on freedom of expression and abuses against prisoners.

What are the Government’s proposals and what effect would they have?

The Government’s recent proposals to revise the Human Rights Act and replace it with a Bill of Rights are wide-ranging. They include proposals to:

  • Amend or removing the requirement, contained in section 2 of the Human Rights Act, that UK courts ‘take into account’ decisions of the European Court of Human Rights (also known as Strasbourg jurisprudence)
  • Introduce a condition that individuals must have suffered a ‘significant disadvantage’ to bring a claim under a new Bill of Rights for a breach of their human rights
  • Limit positive obligations on the State which arise as a result of the Human Rights Act (i.e. obligations to take positive steps to protect individuals under their jurisdiction from having their human rights breached)
  • Amend the definition of ‘public authority’ to limit the bodies or functions that are subject to the obligations under the Human Rights Act

The government has claimed that replacing the Human Rights Act 1998 will “restore common sense to the application of human rights in the UK”  and act as a supposed “check on the expansion and inflation of rights without democratic oversight and consent”.

However, there is scant evidence that the Human Rights Act has led to any so-called expansion of rights without democratic oversight and consent. Indeed, the Independent Human Rights Act Review published in December 2021 found that the Human Rights Act has largely been a success and that hostility to the Human Rights Act is “disproportionately fuelled and ventilated by negative media and political coverage”. The Law Society has similarly dismissed the proposals as unnecessary and indeed likely to damage the human rights framework currently in place.

The specific proposals put forward by the government are largely based on an inaccurate understanding of the way that the current Human Rights Act functions. As such, many of the proposed changes would not have the desired effect and in fact are likely to have a detrimental effect on access to justice and the ability of individuals to hold the government to account for breaches of their human rights.

Why is the Human Rights Act important and does it need to be replaced?

The Human Rights Act 1998 is a crucial piece of legislation that ensures that individuals, particularly from marginalised and vulnerable groups, are able to hold the government to account and obtain justice for breaches of their fundamental human rights.

Since coming into force, the Human Rights Act has struck an effective balance between the rights of individuals and obligations of the state to protect those rights. The proposed reforms would only serve to restrict individual rights and make it harder for individuals to obtain a remedy if those rights are breached by the State.

For advice about making a claim against the state, our expert team of police action, civil liberties and human rights solicitors are experienced in bringing claims based on breaches of the Human Rights Act 1998. Please contact them on 020 7632 4300 to discuss your concerns.


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