What is happening to Human Rights?
The Human Rights Act 1998 has long irritated the Home Secretary, Theresa May. At the 2013 Conservative Party Conference she said "The next Conservative manifesto will promise to scrap the Human Rights Act”. We now have a new Conservative government and a renewed commitment to scrapping the Act.
Michael Gove has been appointed as the Justice Secretary. Part of his remit is to abolish the Human Rights Act, within the next 100 days
What will we lose if we lose the Human Rights Act?
The Human Rights Act does not set out, create or impose human rights. Rather it makes it unlawful for a public authority, such as a government office or court to act in a way which is incompatible with the European Convention on Human Rights.
This Convention was drafted in 1950
and brought into force in 1953
, following the atrocities of the Second World War. The UK was instrumental in its drafting and was the first to ratify the Convention. The Convention was intended to vocalise and protect the basic human rights
that Europe had feared would be lost if the Second World War had not been won.
Lord Bingham describes these rights as follows:The rights protected by the Convention and the Act deserve to be protected because they are, as I would suggest, the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being. Let me briefly remind you of the protected rights, some of which I have already mentioned. The right to life. The right not to be tortured or subjected to inhuman or degrading treatment or punishment. The right not to be enslaved. The right to liberty and security of the person. The right to a fair trial. The right not to be retrospectively penalised. The right to respect for private and family life. Freedom of thought, conscience and religion. Freedom of expression. Freedom of assembly and association. The right to marry. The right not to be discriminated against in the enjoyment of those rights. The right not to have our property taken away except in the public interest and with compensation. The right of fair access to the country’s educational system. The right to free elections.
Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British? There may be those who would like to live in a country where these rights are not protected, but I am not of their number.
Human rights are not, however, protected for the likes of people like me – or most of you. They are protected for the benefit above all of society’s outcasts, those who need legal protection because they have no other voice – the prisoners, the mentally ill, the gipsies, the homosexuals, the immigrants, the asylum-seekers, those who are at any time the subject of public obloquy.
These rights were contained in the Convention long before the Human Rights Act 1998 was brought in. The difference the Human Rights Act made was that people could now enforce their rights in courts in England and Wales, and did not have to take the matter to the European Court of Human Rights in Strasbourg
What will happen if the Human Rights Act is scrapped?
The Conservative Government’s proposal is to replace the Human Rights Act with a British Bill of Rights. No indication has yet been given as to the content of a Bill of Rights which may make it difficult for Mr Gove to meet his commitment to abolish the Human Rights Act in next 100 days.
It seems likely that a British Bill of Rights will seek to water down the current human rights position. It is likely that some people, such as foreign criminals, those who are living in the UK 'precariously'
and those who do not speak English are to have less human rights than others.
However, for as long as the UK is a signatory to the Convention and for as long as we remain part of the Council of Europe, the rights contained within the Convention will still be enforceable. If there is incompatibility between the new Bill of Rights and the Convention then the Bill of Rights can be challenged.
If an individual finds that their human rights have been breached by a public authority in the UK and the Bill of Rights does not offer them protection, they will still have the protection of the Convention. However, the process for challenging the public authority will involve an expensive and lengthy appeal to the European Court of Human Rights in Strasbourg. With the loss of legal aid for much immigration and asylum work, a challenge of this sort may be difficult for people to bring.
What will this mean?
We need at least a draft of the Bill of Rights
before we can fully anticipate the impact this will have for our clients but we can expect that human rights challenges will become more difficult.
With this in mind, it will be more important than ever that applications to come to the UK or to stay in the UK are well prepared to ensure that they are successful first time.
How can we help?
At Simpson Millar, our specialist Immigration Departments
can take you through every step of the process to give an application the best chance of success.
Contact our Immigration Team directly on freephone: 0808 129 3320 to get the advice you need. If you prefer you can complete our no obligation online enquiry form.
Our specialist teams are based in our Leeds and Manchester Offices. We act for clients nationally and globally.