Liza Dresner

Katherine Hill, 4in10’s Strategic Manager, takes us through the issues:

The story of Human Rights Act (HRA) reform has been a long and somewhat torturous one. Governments of various guises have been consulting on what changes might be needed since the mid-2000s, only a few years after the Act came into force. While the content of these proposals has changed over time the one constant has been that those who have made the effort to respond diligently to each round of consultation have almost unanimously concluded that there is no solid case for reform; the Act is doing the job it was intended to do, effectively defending ordinary citizens against the exercise of excess power or neglect by the state.

Most recently the Independent Human Rights Act Review (IHRAR) set up by the Government to take (yet) another look at the Human Rights Act reported that, “[t]he vast majority of submissions received by IHRAR spoke strongly in support of the HRA.” And the separate but concurrently running  inquiry carried out by the cross-party Joint Committee on Human Rights concluded: “[t]o amend the Human Rights Act would be a huge risk to our constitutional settlement and to the enforcement of our rights”. Why, then, has the Government now published proposals for wide-ranging and significant changes to the way the Act works? We all know that evidence-based policy is out of fashion, but this seems to have gone one step further. It is embracing policy in that is in direct contradiction with the evidence. This is policy driven by ideology pure and simple.

At this, the temptation may be to throw up our hands and leave the beleaguered Human Rights Act to the hands of fate. What is the point of repeatedly making the case for it, only to be ignored? There are two reasons. Firstly, we must recognise that the case for effective human rights is one that needs to be constantly remade, it will never be a case of job done. Human rights, if they are to mean anything, must be a statement of collective values, an expression of our shared commitment to freedom, respect, equality, dignity and autonomy for all humans. For these to be transmitted from generation to generation there needs to be ongoing dialogue about them and what they mean in our modern world. Shying away from that conversation leaves the legal mechanisms we have for defending our rights vulnerable to attack.

Secondly, and more pragmatically, if we do not argue and win the case for the Human Rights Act, and these current proposals for reform come into force, ordinary citizens may lose the means to enforce their rights effectively. For those 4in10 exists to advocate with and for, families and children experiencing living in poverty in London, the consequences are potentially very serious indeed.

The proposed reforms aim in multiple ways to make it harder for people to enforce their rights. These include a proposal to introduce of a new step in the legal process requiring individuals to demonstrate that they had experienced “a significant disadvantage” before their case can go to court. Legal action can already only be taken if the individual is the “victim” of a human rights breach, so it is hard to view this as anything other than an attempt to deter people from enforcing their rights by adding a further legal hurdle to the process. This will disproportionately affect those experiencing poverty who are more likely to have their rights breached in the first place. To give just one example, children in the lowest income quintile are 4.5 times more likely to experience severe mental health problems than those in the highest.[1] It follows that some of those are more likely to experience mental health detention too, where their human rights – including the right to respect for private and family life (article 8) and right to liberty and security (article 5) – will be engaged. If children in these circumstances, who already find it very difficult to access justice,  have to jump through additional hoops it will further diminish their ability to challenge their detention where they believe it is an unlawful breach of their human rights.

The Government’s proposals would introduce a two-tier system for enforcing human rights by restricting their use in the domestic courts by certain groups, including “foreign criminals” and those accused of illegal migration. This makes a mockery of the values underlying the whole notion of human rights. These are rights that everyone is entitled to enjoy regardless of economic or immigration status, gender, sexuality, disability  or anything else. It follows that all should have equal access to the law to enforce them. If they don’t, the impact will be felt most by those on the margins, and especially the poorest children in our society. If the Government is more easily able to deport people without them being able to challenge this on the grounds of right to respect for private and family life (article 8), families may face the sudden loss of their main breadwinner, and children living in already financially precarious situations will be plunged into deeper poverty.

A key issue the Government seeks to address through its plans is that it wants to stop what is termed ‘judicial overreach’, that is the courts getting involved in decisions that are more properly the role of Government and Parliament, accountable as they are to the people. High on the list of things the Government believes it is best placed to make decisions about is the allocation of social and economic resources and it is particularly aggrieved when it thinks the courts seek to interfere in these issues.

The reality is however, that there is little evidence that this is what the courts in the UK are routinely doing. Recent cases that have examined welfare policy have often been unsuccessful, for example a challenge to the two-child limit (which does not allow welfare payments to be made to third and subsequent children) on the grounds that it discriminates against lone parents. The courts found these to be matters on which Parliament has deliberated and struck an appropriate balance. This may be very disappointing for those of us who believe that there should be a wider role for human rights in these matters, and that the right to an adequate income, a safe and warm home and access to healthy food meet basic human needs that should be enforceable whatever the colour of government in town. But it certainly does not support the Government’s argument for the need to curtail the powers of the courts, and the rights of individuals, as is proposed.

Over the longer-term we need to build the case and argue robustly for more comprehensive protection of these important economic, social and cultural in our domestic legal framework, as an essential element of any strategy to eradicate poverty. But first, and most urgently, we need to protect what we already have in the form of the Human Rights Act, as failing to do so will have the greatest impact on those who most need to rely on it.

 To find out more about the Government’s plans to reform the Human Rights Act and to find out how you can respond to the consultation visit the British Institute of Human Rights dedicated web pages where you can find lots of easily digestible information and advice.

[1] Gutman, L., Joshi, H., Parsonage, M., & Schoon, I. (2015). Children of the new century: Mental health findings from the Millennium Cohort Study. London: Centre for Mental Health.