In this piece Omar and Matthew explore the coming battle over human rights. While the 2019 Conservative manifesto promised to remould the relationship between our three branches of government and there has been a longstanding commitment to revisit the Human Rights Act, constitutional issues came to the fore again due to the government’s attempted prorogation of Parliament. If that wasn’t sufficient, the constitutional debate has recently become all the more important because of the vast extensions in executive power we have witnessed during the Covid-19 pandemic. This piece is a timely charting of the lay of the land and clearly and succinctly sets out the key battlegrounds to come.
Once the pandemic is over, we must be ready for the Tory attack on our rights
Covid-19 reminds us of the things that are important in life, like family, friends and health. But it has also served as a reminder of the awesome power that governments can have over our daily lives. Suddenly the UK Government is making huge, life-or-death decisions that affect us all, such as whether people can leave their homes and who should be prioritised for tests or ventilators. Certainly, the government needs substantial powers to steer us through this crisis – to protect lives and jobs – but we must ensure that it is not used as a ‘power grab’ because, once this is all over, the Tory threat to our rights and liberties remains all too real.
The 2019 Conservative manifesto promised a ‘Constitution, Democracy and Rights Commission’. Its remit will include the relationship between the Government, Parliament and the courts, the royal prerogative, the House of Lords, “access to justice for ordinary people” and the Human Rights Act (HRA). What this really means is undermining democracy, attacking the independence of the judiciary, reducing the ability to challenge government decisions through judicial review, and undermining or even scrapping the HRA. And this comes at a time when legal aid has already been gutted, leaving thousands of people without vital legal support in areas such as housing, family and employment law.
That is why we need to be ready to fight back. First, we need to protect the Human Rights Act at all costs. Second, we need to defend our independent – world class - judiciary. Third, we need to stand up for the free media. But we cannot just be on the defensive. Fourth, we need to call for a restoration of the legal aid system and a brand-new Right to Justice. Fifth, we need to demand more rights, in particular call for economic, cultural and social rights to be enshrined into domestic law.
Protecting our human rights
There is little doubt that a Johnson and Cummings-led government will be coming for the Human Rights Act. In fact, it is likely that they will not just try to repeal the Act itself but also to withdraw from the European Convention on Human Rights (ECHR), the ground-breaking human rights treaty that was born from the ashes of the Second World War (and which, lest we forget, was proposed by Churchill and drafted mostly by British lawyers). The Government has already made it clear in negotiations with the EU that it will not commit to formally applying the ECHR, and Cummings has previously railed hysterically against the convention’s court’s “abysmal judgements”.
To repeal the HRA and leave the ECHR would be a tragedy. These provide us with our most important civil and political rights. Freedom of speech means that we all have the right to protest and speak our minds. Freedom from torture means that we cannot be abused in custody by police. Freedom of expression and religion mean that the state cannot tell us what we should or should not believe in. And the right to a private and family life means that the government cannot spy on our phone calls or read our post. These rights form the cornerstone of a free and democratic society.
But many Tories do not see human rights in this way because they do not themselves need to rely on them. Often it is the most vulnerable and disadvantaged people who need to assert their rights under the HRA. The Conservatives pretend it only protects terrorists and prisoners but that is simply not true. The HRA is there to protect all of us in our greatest hour of need, whenever that might be.
There are so many examples of this. Hospitals have been required to take active steps to protect patients at risk of suicide. The police have been required to take allegations of rape seriously. Local authorities have been held to account for child abuse. And anyone suspected of a crime has the right to speak to a solicitor at the police station.
Whilst the most controversial cases get covered by the press, the HRA is often most effective at protecting our rights in cases which never go to court because the threat of court action is enough to force public authorities to act in accordance with human rights law. The HRA is one of the most important pieces of legalisation ever passed in the UK, and we must be ready to defend it at all costs.
Keeping the judiciary independent
Boris Johnson has no respect for the rule of law. This became very clear last year when he attempted to unlawfully prorogue Parliament to prevent votes on Brexit and had to be stopped by the Supreme Court, which ruled that Parliament – not the executive – was supreme. And did he respond with humility to this unanimous decision by the 11 most senior judges in the country? Of course not. Instead he vowed to get his revenge.
Now that the Tories have an 80-seat majority, it is clear they will be coming for the judges. In the latest cabinet reshuffle, Johnson appointed Suella Braverman as Attorney General. This is deeply concerning, not just because of Ms Braveman’s inexperience and lack of respect for her constitutional role as an independent legal advisor (as illustrated by her highly political response to the recent Cummings scandal). But also because of her express commitment to limit the powers of the courts. Shortly before the reshuffle, she wrote an article for ConservativeHome(which was widely recognised as an application for the job) railing against ‘unelected, unaccountable’ judges and arguing that the government “must take back control, not just from the EU, but from the judiciary”.
This is as wrong as it is dangerous. The separation of powers – between Parliament, the executive and the courts – is what makes our constitutional monarchy so strong and flexible. Judges do not make policy, but hold the government to account according to established legal principles. By interfering with this balance, the Tories risk taking Britain down a dangerous path towards authoritarianism.
The 2019 Conservative Manifesto contained a misleading promise to ensure that the courts cannot be used to “conduct politics by another means”. This Tory attack plan will likely come in two stages.
First, they will attempt to reduce the independence of the judiciary. The Constitutional Reform Act 2005, which was piloted through Parliament by the then Lord Chancellor, Lord Falconer, created the independent Judicial Appointments Commission leaving the Lord Chancellor with only a veto power. However, Professor Richard Ekins writing for Policy Exchange, a right-wing thinktank, has argued that the Lord Chancellor should be more willing to exercise the veto and that the law should be amended so that the Lord Chancellor makes senior judicial appointments from a shortlist of three names provided by the Commission. Their aim will be to exert political control over judges, rather than accepting the judiciary as a critical and an independent check on the awesome power of government.
Second, they will try to limit the scope of judicial review so that fewer government decisions can be challenged in the courts. Professor Ekins has suggested that the Government should “restore the principled limits on judicial review understood by an earlier generation of judges […] and specifying inter alia that proportionality is not a general ground of review”. But the grounds for judicial review are already extremely limited. Government decisions can only be challenged on the basis of illegality, procedural unfairness and irrationality, and there is a strict three-month time limit. Reducing the grounds of judicial review is a cynical step to erode one of the most important mechanisms by which individuals can challenge the power of government and assert their rights and liberties.
Defending the free press
This Government poses a real threat to freedom of expression and the free press. The Tories have consistently undermined the media in recent years. While these attacks are not as blatant as those of the Trump administration, they come straight out of the same playbook. This is a grave threat to our rights and liberties and seriously undermines the ability of society to hold the government to account.
Previous governments – Labour and Conservative alike - have accepted that media outlets from all backgrounds should have access to Ministers and government spokespeople. But Johnson, despite his previous life as a journalist, has little respect for this custom. During the 2019 General Election, the Mirror was barred from the Conservative’s general election battle bus. Radio 4’s Today Programme is subject to a boycott by the Conservative Party. There have been attempts to exclude reporters from the Mirror, the i, HuffPost, PoliticsHome, and the Independent from official government briefings. And No 10 has expressed that it wants to “prune” the BBC’s reach into people’s homes.
But, like with the judiciary and human rights law, they miss the importance of a free and vibrant media. This a vital part of a thriving, democratic society and a critical - but fragile - safeguard to ensure that the government is properly scrutinised and held to account for its actions. We must be clear and steadfast in our support for a free press and oppose Tory attempts to undermine or bully the media.
Demanding a Right to Justice
In 2013 the Coalition government gutted the legal aid system. This had been in place since 1949 when it was seen as one of the great pillars of the new welfare state, alongside the NHS. However, the Legal Advice, Sentencing and Punishment of Offenders Act 2012 (LASPO) vastly reduced the scope of legal aid and removed many areas of law partially or entirely from its scope, including the majority of civil and social welfare cases. This has led to a two-tier system, where rights are only available to the few who can afford to pay for them.
This is a terrible position to be in at any time. But it is made worse by Covid-19. In the aftermath of the pandemic, in what is predicted to be the most significant recession in a century, the provision of legal aid will be more important than ever to guarantee workers’ rights, protect renters from exploitative landlords, help the most vulnerable overturn unjust welfare decisions, and much more.
Our rights are meaningless if cannot enforce them in the courts, and the slashing of legal aid has left millions without access to justice. Legal advice centres in England and Wales halved since 2013 and ‘legal deserts’ have appeared all over the country. Labour committed in its 2019 manifesto not only to restore funding for early legal advice, but also to hire hundreds of ‘community lawyers’ and build an expanded network of law centres so that people can get access to justice. By contrast, there was not even a single mention of legal aid in the Conservative manifesto.
Labour will continue to demand the restoration of funding for legal aid. But we should go further and call for the Government to introduce a new Right to Justice Act, which would establish a brand-new right to reasonable legal assistance, which would enforceable through the courts. This is what was recommended in the Bach Commission on Access to Justice, and we should be calling for nothing less. Because without access to justice, what is the point in having other rights?
Demanding Economic, Social and Cultural Rights
The Human Rights Act 1998 is one of the most important pieces of legalisation ever passed in the UK and enshrines our critical civil and political rights into law. But we believe this was just the start. A bold, ambitious and progressive government should go even further, and enshrine economic, social and cultural rights – such as the rights to food, housing, health, education and work - into law as well.
Like civil and political rights, the UK has recognised economic, social and cultural rights since the end of the Second World War. However, unlike civil and political rights, these have never been ‘brought home’ and enshrined into domestic law. But the sad reality is that many of these rights are needed more than ever before. In 21st century Britain there are hungry children, queues at foodbanks, houses not fit for habitation, and Victorian-style poverty described by the UN rapporteur on extreme poverty as a “social calamity and an economic disaster rolled into one”. If these rights had been domesticated, this would have provided a shield against the worst aspects of Tory austerity.
A Social Rights Act would introduce this new generation of human rights and improve the lives of millions of people across the country. It would require public bodies to progressively realise these rights to the maximum available resources, and provide a means of challenge where they are not upheld. As we face up to the challenges of this century – from pandemics to poverty and climate change – equipping people with rights will be one of the strongest tools we have. We need to make that case fearlessly.
Matthew Turner is Chair of the Labour Campaign for Human Rights
Omar Salem is Vice-Chair of the Society of Labour Lawyers