HUMAN RIGHTS INFO Blog Leaving the EU and the Human Rights Act: "enhancing" human rights protections & the idea of sovereignty By Josephine Whitehouse, Research and Communications Assistant at BIHR On Wednesday 27th May, Michael Gove, Government Minister for the Cabinet Office, gave some concerning indications of the future of human rights protection in the UK as we leave the European Union (EU). While answering questions before a parliamentary Select Committee on ‘the progress of the negotiations on the UK’s Future Relationship with the EU’, Gove was pushed on the UK government’s reluctance in negotiations with the EU to commit to safeguarding domestic protection of human rights going forward. Gove suggested that the future of the UK’s Human Rights Act (HRA) and its role in bringing home the rights of the European Convention of Human Rights (ECHR) is a question of sovereignty. He went on to say that the UK government is seeking to “enhance” the HRA as it leaves the EU. But what does “enhancing” the HRA mean? At BIHR, we believe that the significance of human rights transcends political notions of sovereignty. Human rights by their nature are universal standards, agreed at the international level to set limits on government power. The HRA is a valuable and important law that makes human rights accessible to everyone here in the UK. It does not need “enhancing” in any way that would reduce rights or duties on our government and officials; and it certainly does not need replacing. What is the European Convention of Human Rights and how does it work here in the UK? The UK was fundamental in the agreement of the ECHR between members of the Council of Europe – an institution separate to the European Union. The ECHR recognises and protects the rights and freedoms of over 320 million people in 47 countries across Europe, including the UK. The Convention provides these people with recourse to the European Court of Human Rights (ECtHR) where their rights are not respected by public bodies in their country. Leaving the European Union does not legally impact the UK’s commitment to the ECHR as this is a treaty of the Council of Europe. However, the EU does have respect for the ECHR, for example all Members of the EU are required to also agree to the ECHR. This is important for helping to ensure consistent protections for people across the continent, no matter which institution their country is a member of. Therefore, reaffirming the UK’s commitment to the ECHR is an important part of agreeing the EU’s future relationship with the EU. However, Gove’s comments hint at changing (read: diminishing) the rights of the ECHR as protected in the HRA suggests that domestic human rights protections will hang in the balance as we leave the EU. In 1998, the HRA was made UK law with cross-party support. It brought home the rights of the ECHR into domestic law, enabling people in the UK to access local courts and tribunals to assert their Convention rights without the ECtHR having to be the first port of call for justice. The HRA also ensures that we are all treated with dignity, respect and without discrimination, and works quietly in the background of our daily interactions with public bodies. Section 6 of the HRA contains a duty on public authorities to respect ECHR rights in everything they do. The HRA is not simply the preserve of lawyers: it ensures that human rights happen, lifting them from the statute books and taking them outside the courts and into everyday life. At BIHR, we have long spoken loudly about the importance of the HRA for the protection of our rights and fundamental freedoms here in the UK. Not only does the HRA work, but it also has incredible value for people in their interactions with public bodies. Rather than “enhancing”, we need better awareness and education on how the HRA works for everyday people to ensure that it is used to its greatest strength. Our work supporting people to know their rights during Covid-19 has made this clearer than ever, and we must be steadfast in vocalising the importance of the HRA in helping everyday people to live lives of dignity and respect. Gove’s comments to the Select Committee During the Committee session, Joanna Cherry of the Scottish National Party (SNP) asked Gove why the UK government is refusing to sign up to human rights safeguards in negotiations with the EU. She also asked whether the UK government would safeguard rights protection under the ECHR, and not repeal the domestic legislation that brings these rights into UK law and makes them accessible to people here in the UK. In response to Cherry’s probing questions, Gove said that agreeing to the EU’s demand for human rights safeguards in negotiations is a matter of sovereignty. He continued that the UK government does not want “the EU determining whether or not our own legislation is sufficient to give effect to the rights of citizens to ensure that their position under the ECHR is safeguarded”. This suggestion that human rights protection is a question of sovereignty disregards the fundamental value of human rights in making sure power in our country (as with others) is exercised fairly and respectfully. The rights of the ECHR have value and meaning to people wherever they live, and the need to protect these rights should transcend political notions of sovereignty and the entailing glints of nationalism. Next, Cherry asked Gove directly what the UK government’s plans are for the HRA. She asked, “So you do want to reopen the possibility of interfering with the HRA?”. Gove responded, “Well we can enhance it in all sorts of ways.”. This notion of “enhancing” the HRA is troubling in many ways and harks to the debate on replacing the HRA with a British Bill of Rights. What does “enhancing” the Human Rights Act mean and what does the future hold for human rights in the UK? For years, the question of the future of rights protection in the UK has been lobbied around across the political spectrum. Should the HRA be repealed? Should the HRA be replaced by a British Bill of Rights? This discourse has been consistently riddled with misrepresentations of human rights and marked by a widespread lack of robust political leadership on human rights. The rhetoric of sovereignty in relation to human rights protection has been a strong feature of this discourse too, misleadingly tied up with debates on the UK’s membership to the European Union. Gove says the UK government are looking to “enhance” the HRA. This might seem like a promise to improve human rights standards and to extend legal protection to a broader range of rights beyond those in the HRA. However, Gove’s comments beg the question, would any “enhancement” improve rights protections for the people the HRA is there to protect? There has yet to be clarity on what exactly would be strengthened or enhanced by what Gove has in mind (or even the mythical British Bill of Rights). Discussion of such a change also raises concern that the process may in fact weaken the law as set out in the HRA. The reluctance of the UK government to commit to maintaining human rights standards in the UK in the negotiations with the EU certainly raises alarm bells. If the intension is to maintain or even increase human rights protection, why not commit to this in the negotiations? The Human Rights Act and Us Here at BIHR, we work to make human rights accessible to all and to support people to understand what human rights are and how they can be used every day. We encourage public bodies to make decisions (frontline and strategic) in a way that fosters a culture of human rights and ensure that any restriction of rights is lawful, rational, fair and proportionate. From our work, we know there is much still to be done to ensure that our human rights are respected and promoted here in the UK, but we firmly believe that the HRA is the vital foundation to seeing this happen. The Covid-19 pandemic has made this clearer than ever and reinforced to us the absolute importance of the HRA, especially in difficult times. In response to Covid-19, the UK government have made sweeping changes to legislation across the UK, particularly in the health and care sector. These changes reduce the duties on staff and local authorities and raise serious questions about the protection of rights during Covid-19. Throughout the pandemic, the HRA remains in force in its entirety – any decisions made by a public body that interacts with people, including in health and social care settings, must respect and protect human rights. Further, the HRA continues to be a foundation law, and all other laws, including the Coronavirus Act, must continue to be applied in ways which are compatible with our rights. For clear and informative resources on human rights and what has and hasn’t changed in law and policy during Covid-19, please see our dedicated Coronavirus Hub. At BIHR, we have been working flat-out to empower people to continue to know and access their rights during Covid-19. We run online sessions to help staff understand the changes and make rights-respecting decisions in these difficult circumstances. We run free open sessions for the public, empowering people to use the human rights framework to self-advocate in decisions about their care during Covid-19 and beyond. We use the HRA every day in our work and have seen how essential it is for people at this time to know how to challenge decisions made by public bodies in difficult circumstances which may not fulfil their duties to protect and promote rights. "This opportunity has given me another tool in my ‘professional tool bag’. The training promotes an understanding of the law in the current situation." (Feedback from a recent BIHR online session for a Local Authority on human rights during Covid-19) Now is not the time to “enhance” or change the human rights framework in the UK. The HRA provides vital protection of our rights, especially during Covid-19. What we need is increased commitment to human rights standards and the HRA, especially as we leave the EU and the EU Charter of Fundamental Rights. For more from the BIHR on the Human Rights Act, please see: Our work on the Human Rights Act and a Bill of Rights Our blogs: The Human Rights Act is Under Renewed Attack and Rescuing Human Rights: from international debate to domestic reality To watch the recent Select Committee session, please click here. The questions on human rights protections start at 14:15:37. The House of Commons Library briefing on human rights after Brexit.