David Isaac, the former chairman of the Equality and Human Rights Commission, has called on the government to ensure its review of the Human Rights Act is “independent-minded on potentially political issues and “should not mean turning our back on European human rights.”
In December 2020, it was announced that former-judge Sir Peter Gross would head up a review of the Human Rights Act, which incorporates the rights of the European Convention of Human Rights into domestic law.
To this end, the review will assess what role the European Court of Human Rights (ECHtR) will play in the UK post-Brexit. As is, the act compels courts to “take account” of decisions made by the ECHtR, though it specifically states they are not required to follow its decisions.
Of more concern to Isaac is that the review also intends to examine whether the legislation bestows judges, rather than parliament, too much power over matters of policy. A number of judge-led decisions throughout the Brexit process has left many within the Conservative party with a sour taste in their mouth. However, as Isaac notes “decisions by judges have historically been significant in promoting human rights — and often ahead of legislative change.”
Scepticism of the Human Rights Act within the Conservative party did not start with the Brexit referendum – their 2010 and 2015 Conservative manifestos both pledged to repeal the act. In 2019 they ambiguously committed to “update” the legislation.
While the latter pledge pulls back from complete revocation, it is generally accepted that an “update” would lead to pre-existing rights protections being watered down.
Martha Spurrier, a barrister and the director of Liberty, wrote at the time:
“While we cannot be clear about what “update” means, the proposal appears not to be aimed at what rights people enjoy, but rather when and where those rights can be enjoyed and who can be held to account for their violation. Updating the legislation to make it applicable to some but not others would be an attack on the structure and accessibility of the Act.”
Going on to add that:
“It is rarely those in the halls of Westminster who rely on the Act to secure the justice they need. It is people such as the families of the Hillsborough victims, the same-sex couple who fought for equal rights, and the victims of John Worboys, among countless of others.”
Many, including the International Observatory of Human Rights (IOHR), have called on the government to safeguard the rights protected by the Human Rights Act. Any review should look into how it should be expanded to cover rights lost from Britain’s withdrawal from the European Union, rather than stymied.
Today, the UK celebrates 22 years of the Human Rights Act.
The Human Rights Act 1998 represented a major turning point for protecting human rights in Britain. #Rights4All #HRA pic.twitter.com/zmz9duWGv2
— International Observatory of Human Rights (@observatoryihr) November 9, 2020
Valerie Peay, IOHR Director commented that:
“UK citizens should not have left a single right behind when the UK exited the European Union. We look to the government to build on those rights as a minimum, not to erode them through ambiguity to suit a political agenda.”
The protection of rights and their longevity thereafter was a salient issue throughout the withdrawal negotiations, both at home and in Brussels. The UK government has consistently sought to reassure people that no rights would be lost as a result of Brexit, however this commitment is already being called into question; longstanding questions around citizens rights aside.
The UK business secretary has this week confirmed his department would be reviewing EU employment rights protections ahead of potential changes.
The government is believed to be examining EU rules such as the working time directive, which sets a maximum 48-hour working week.
When questioned by the business, energy and industrial strategy committee, Kwasi Kwarteng said a number of EU countries had already opted out of the working time directive:
“So, even by just following that we are way above the average European standard. And I want to maintain that, I think we can be a high wage, high employment economy and a very successful economy. And that’s what we should be aiming for.”
However, the minister ducked questions about his contributions to Britannia Unchained, a 2012 collection of essays by then Tory backbenchers which called for a reduction in workers protections, instead saying it was “a long time ago”.
The foreword to Britannia Unchained claimed British workers “work among the lowest hours, we retire early and our productivity is poor”, among the authors were current Foreign Secretary Dominic Raab, Home Secretary Priti Patel, Trade Secretary Liz Truss and the aforementioned Business Secretary Kwasi Kwarteng.
On announcement of the review, Labour’s shadow business secretary Ed Miliband said:
“After dismissing media reports and promising the government has no plans to rip up workers’ rights, Kwasi Kwarteng has now let the cat out of the bag and admitted that they are conducting a review of those rights – including opting out of the 48 hour week which protects workers in key sectors like the NHS, road haulage and airlines from working excessive hours.
A government committed to maintaining existing protections would not be reviewing whether they should be unpicked. This exposes that the government’s priorities for Britain are totally wrong.
Neither workers nor business want ministers to take a wrecking ball to the hard-won rights of working people and families.”