On 8 March 2022, ARTICLE 19, together with English PEN and Index on Censorship, responded to the United Kingdom Ministry of Justice’s consultation Human Rights Act Reform: A Modern Bill of Rights, warning about the implications of the UK Government’s plan to abolish the Human Rights Act 1998 (HRA). We challenge the UK Government’s misleading claims that replacing the HRA with a Bill of Rights would strengthen freedom of expression. The joint submission highlights key concerns with the proposal and recommends steps that the UK Government should take instead to better protect freedom of expression.
The HRA was passed in 1998 and has since been a cornerstone in the protection of human rights in the UK. It places an obligation on public authorities to respect the rights protected under the European Convention on Human Rights (the European Convention) and provides individuals with the ability to directly enforce these rights in court. Despite this, the UK Government plans to replace the HRA with a ‘British Bill of Rights,’ claiming this would ‘reinforce [individuals’] freedoms under the rule of law, but also provide a clearer demarcation of the separation of powers between the courts and Parliament’.
The proposals presented by the UK Government in its consultation document give reason for alarm. For example, under the proposals presented in the consultation, the meaning of the rights protected in the Bill of Rights might differ from those in the European Convention and UK courts might no longer be required to follow the case law of the European Court of Human Rights (ECtHR). Should those plans be adopted, individuals will be required to bring lengthy and costly proceedings before the ECtHR to seek the protection that they can currently get from UK courts.
We specifically challenge the UK Government’s allegation that replacing the HRA with a Bill of Rights would strengthen freedom of expression in the UK. We believe that the contrary is true. As our submission details, the HRA has positively influenced the development of more protective freedom of expression standards. For example, it has bolstered the protection of freedom of expression in defamation cases; enhanced the protection of journalistic sources and material; strengthened the protection of the right to protest; and restricted perception-based recording of non-crime incidents.
We urge the UK Government to abandon its plans to repeal the HRA or to rewrite the law in such a way that would prevent the direct application of the European Convention in the UK. Instead, the Government should:
- Review and revise other legislative proposals that have freedom of expression implications, such as the proposed reform of the Official Secrets Act, the draft Online Safety Bill, the proposed Police, Crime, Sentencing and Courts Bill and the draft Higher Education Bill;
- Reform anti-terrorism and surveillance legislation and policies including the Terrorism Act 2000 or the Investigatory Powers Act 2016 to make them compliant with international freedom of expression standards;
- Introduce a law against Strategic Lawsuits Against Public Participation (Anti-SLAPP Law) to provide procedural protections against abusive lawsuits targeting critical speech;
- Launch an enquiry into how the myriad of laws with freedom of expression and privacy implications can be consolidated, codified or otherwise clarified into a single independent privacy law.
ARTICLE 19 is also concerned that a departure of the UK from the HRA would not only erode the rights of individuals in the UK but would also inevitably weaken the UK’s role as an advocate for international human rights and media freedom around the world. Other States could point to the UK precedent to justify similar steps and distance themselves from international human rights mechanisms. At a minimum, UK courts would lose their influence on the jurisprudence of the ECtHR that continues to shape and develop human rights protections worldwide.