As the government’s consultation closes, we reflect on a set of proposals that show callous disregard for human rights in the UK.
While some of these proposals will simply be unworkable or make our judicial system more complex and costly to the public purse, others will diminish access to fundamental rights and put the government further beyond the reach of challenge and scrutiny.
Contained within the consultation document itself are a number of alarming proposals. The government wants to introduce a threshold test of ‘significant disadvantage’ for human rights claims – something that we believe would be unnecessary, counter-productive and deny redress to people whose rights have been breached. Like many other proposals in the government’s consultation, far from streamlining the system, this would introduce costly additional stages to cases which would require additional pleadings, witness evidence, hearings, appeals and satellite litigation.
The government will limit people’s ability to pursue a rights-based claim alongside another type of claim. It is also seeking to limit access to damages for people whose rights have been breached, under the apparently innocuous intention of ‘strengthening the courts’ discretion’ in granting remedies. Like many proposals, this is put forward to resolve a problem that there is no evidence for and would have the opposite effect of the government’s stated aim.
The government is also seeking to ‘restrain the ability of the UK courts to use human rights ref to impose ‘positive obligations’ onto our public authorities’. This misconstrues the nature of fundamental rights. Rights create corresponding obligations, and few if any rights could be meaningfully secured if corresponding positive obligations were simply ignored. Our understanding of rights and what is required to guarantee a right evolves over time and can never be fully foreseen at the time a right is first recognised.
While the consultation paper often raises concerns (often with scant supporting evidence) about the cost to public authorities of unmeritorious claims, in many instances the proposed remedy is to curtail the availability of meritorious ones. This approach harms access to justice without solving the alleged problem.
Of particular concern are the government’s proposals to curtail access to human rights for people facing deportation, either through limiting the rights that people can appeal to, or preventing the courts from overturning deportation decisions made by the secretary of state. Their proposals would ensure repeated and serious breaches of fundamental rights, inconsistently with the stated aims of the consultation. Moreover, they ignore the fact that the government’s decisions in human rights cases are often flawed – from June – September 2021 52% of human rights refusals were overturned on appeal (here).The proposals would force children forced to grow up without a parent and therefore punish the children for the actions of their parents.
Alongside 20 organisations we have written to the government highlighting appalling flaws in the way that the government put forward its case in the consultation doc. In making the case for tougher deport laws and arguing that people are abusing the system, the government has used a “case study” about a man that they believe should have been deported, without mentioning the fact that he was born in the UK, had indefinite leave to remain and since the age 9 has never left the UK. Another case cited failed to mention particularly striking facts about a man who had been in the UK for over 30 years and was deeply socially and culturally integrated here. Hiding crucial facts that don’t support the government’s claims seems to reflect the Government’s general approach towards the Human Rights Act.
Justice Secretary Dominic Raab made use of an equally misleading case study at the Conservative Party Conference – arguing that the man he spoke about was a typical example of abuse of deportation laws, without clarifying that the case was determined before changes to the law in 2014 made it much more difficult to succeed in deportation appeals, and involved a man who had arrived in the UK aged four and was to all intents and purposes British. The affair brings to mind ‘catgate’ – where then Home Secretary Theresa May justified tougher deportation laws, incorrectly claiming that a man avoided deportation because he “had a pet cat”. It is alarming to see evidence deployed in such a brazenly misleading way to justify trampling on fundamental rights.
Equally, the government uses data going back to 2008 to allegedly demonstrate that many deportation appeals succeed, obscuring more recent trends flowing from changes to the law in 2014. BID’s own FOI requests show that there are in fact now far fewer appeals lodged on human rights grounds (and still far fewer allowed) in the deportation context than the figures cited in the consultation document might appear to suggest. We are concerned that, faced with a lack of evidence to support its position, the government has disingenuously elected to present information in a misleading way to generate support.
Many of the proposals are moreover incoherent, are premised on apparent misunderstandings of the current legal position, and/or go far beyond the recommendations of the expert panel that the government recently commissioned to review aspects of the Human Rights Act. A number are framed in a biased manner, seemingly aimed at eliciting desired responses than drawing from a range of well-informed sources. This calls into question the entire consultation exercise. We call on the government to reconsider this baseless attack on fundamental human rights in the UK .
