The UK Government is today introducing into Parliament its proposals to overhaul human rights through a new ‘Bill of Rights’, as outlined in the Queen’s Speech last month. According to a Ministry of Justice consultation, the Bill of Rights would “overhaul the Human Rights Act” and “restore common sense to the application of human rights in the UK”.
In Hope for Justice’s response to the consultation on reforming human rights in the UK, submitted along with a group of civil society organisations, we outlined our strong opposition to the plans and our belief that the Human Rights Act has been pivotal in guaranteeing fundamental rights and freedoms for survivors of modern slavery. Article 3 stipulates the “prohibition of torture”, Article 4 requires the “prohibition of slavery and forced labour”, and Article 8 grants “right to respect for private and family life”. The background to these changes and our concerns are explained in more detail below.
Human Rights Act
The origins of the Human Rights Act can be traced back to the aftermath of World War II. Following the war, many were united in their desire to ensure the atrocities of war could never happen again. As a result, there were demands for mechanisms to prevent the same devastation from occurring. It was hoped by establishing rights and freedoms in the form of “human rights”, a minimum standard of treatment could be guaranteed for every person. These rights, in theory, would be inherent to every individual, and States would have to respect them. In 1948, the Universal Declaration of Human Rights was published, which, for the first time, detailed fundamental human rights that were to be universally protected.
Two years later, in 1950, the European Convention on Human Rights (ECHR) was drafted, which later became effective in 1953. The UK played a key role in drafting ECHR; the British lawyer and Conservative politician David Maxwell Fyfe was one of the key writers. The convention outlined a series of human rights protections for people in countries that are part of the Council of Europe. For example, Article 2 stipulates the “right to life”, and Article 7 refers to “no punishment without law”. A complete list of the protections can be found here.
Under the ECHR, if the rights of citizens are breached by a public authority in a country that has signed the convention, legal action can be taken. Initially, since ECHR was not domestic law, if an individual’s rights had been breached, the case would have to go to court in Strasbourg (where the European Court of Human Rights is located). If the court found that a person’s rights had been breached, financial compensation could be issued, along with an order that the public authority must take certain action.
Taking a case to Strasbourg was expensive and cumbersome. As a result, the government began to consider enshrining ECHR in domestic law in the late 90s; in the white paper “Rights Brought Home: The Human Rights Bill”, which was published in 1997, the Human Rights Bill was praised as a “major step forward”. It was noted that the Bill would “give people in the United Kingdom opportunities to enforce their rights under the European Convention in British courts rather than having to incur the cost and delay of taking a case to the European Human Rights Commission and Court in Strasbourg”. By introducing the Human Rights Act in the United Kingdom in 1998, people no longer had to go to Strasbourg to enforce their rights. Instead, the domestic courts in the United Kingdom could deal with these cases of potential human rights violations.
In practice, the Human Rights Act has provided a baseline for the minimum standard of treatment that individuals can expect to receive; the law set out basic rights and freedoms which determine the guiding principles for how public authorities should treat people. All public authorities, which include entities such as government departments and the police, have to respect these rights by law.
Bill of Rights
The proposal for a Bill of Rights follows the Independent Human Rights Act Review, which was undertaken to “consider how the Human Rights Act is working in practice and whether any change is needed”. The report made a series of recommendations on improving the Human Rights Act, but crucially, stopped short of a complete “overhaul”. Nonetheless, the government plans to introduce a new Act to “restore a proper balance between the rights of individuals, personal responsibility and the wider public interest”.
As an alternative, the government proposes a Bill of Rights. The Bill, in its eyes, would mitigate the problem of protecting one person’s rights whilst simultaneously putting others in danger. The change follows “suggestions that [the Human Rights Act] had been abused by various litigants”; for example, in 2006, the then-Prime Minister, Tony Blair, claimed that a ruling, which allowed nine people who hijacked a plane to remain in the UK instead of being deported, was an “abuse of common sense”. As a consequence, judgements such as these have “resulted in friction in policy areas such as asylum, immigration and counter-terrorism”, and a tension whereby certain groups feel that “the courts are becoming more “activist” and involved in dealing with “small p” political questions that would previously have been settled by politicians and administrators”. By introducing a Bill of Rights, it is hoped that a “common sense” approach will be adopted when dealing with human rights matters, which can counteract the aforementioned issues.
How will survivors of modern slavery be harmed by the overhaul of human rights?
The Human Rights Act has been essential in establishing a minimum level of protection for every citizen of the UK. The Joint Committee on Human Rights has acknowledged how the Act has strengthened the ability of people in the UK to enforce their rights, concluding that “proposals to reform the Human Rights Act risk weakening existing human rights protections”. Through the Human Rights Act, public authorities are obliged to respect the individual rights of people. Replacing the Act would mean that the minimum level of support is no longer guaranteed. While an image might be conjured up of foreign criminals being prevented from abusing human rights mechanisms, we believe that the proposed change will be detrimental for the genuine victims of human rights abuses, who are already marginalised – such as victims of modern slavery. At Hope for Justice, we find the proposed changes a regressive step towards protecting human rights.
The narrative used to support the Bill of Rights conveys human rights concerns as a matter than can be solved with “common sense”. However, this framing oversimplifies the complexity of human rights concerns; the origins of the Human Rights Act can be traced back to at least the 1940s. The idea that a piece of legislation that has been in development for generations can be replaced by “common sense” is alarming; fundamental rights should not be left to the discretion of whoever is in a position of power. Instead, we believe that robust legal frameworks, such as the Human Rights Act, offer more value in determining human rights matters. We have seen, while supporting survivors of modern slavery, how significant the Human Rights Act has been in allowing survivors to rebuild their lives after exploitation. In addition, the Human Rights Act has been pivotal in ensuring witnesses for the largest modern slavery prosecution (Operation Fort) in UK history were not deported. The case generated global headlines:
Hope for Justice supported a survivor of modern slavery – a key witness in Operation Fort – who made a request for discretionary leave to remain. ‘Discretionary leave to remain’ is the term used when the UK Home Office makes a decision (outside of immigration rules) about whether a person is allowed to live in the UK. The decision to grant leave can be made on compassionate grounds. In the case of the survivor of modern slavery, due to previous minor offences, his leave to remain was refused. In addition, after making the request, the survivor was then arrested at the safe house where he was residing, taken to a detention centre, and a decision was made to deport him.
In response to the events, the survivor made an appeal. Under the Human Rights Act, a public authority cannot act in a way which is incompatible with a person’s rights; authorities have duties to prevent an individual’s rights from being breached. The detention and proposed deportation of the survivor was found to be unlawful. If the survivor had been deported, he would have been highly vulnerable to re-exploitation, as he would have been forced to return to where he was originally trafficked from. If he was trafficked again, this would have been breaching Article 4 of the Human Rights Act, which requires authorities to ensure the “prohibition of slavery and forced labour”. Not only did the Act protect the individual rights of the survivor, it prevented a vital witness from being lost in one of Europe’s most significant cases of modern slavery. The survivor played a key part in bringing an organised crime network to trial who were responsible for trafficking around 400 victims, so that they could be held accountable for their actions.
The Human Rights Act is significant and needs to be protected, not just for survivors of modern slavery, but for each and every one of us.
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By Robyn Heitzman, Policy and Research Officer, Hope for Justice