UK Human Rights Reform: A Reminder of Relevant International Human Rights Obligations

By Douglas Jack - Posted on 23 February 2023

Domestic protection of human rights in the United Kingdom appears to be at a crossroads.

At Westminster, the Bill of Rights Bill, which proposes to repeal the Human Rights Act 1998 and replace it with a substantially weaker human rights framework, is awaiting second reading in the House of Commons.

Meanwhile, at Holyrood, a consultation on a new Human Rights Bill is expected to take place in the summer. The consultation follows the report of the National Taskforce for Human Rights Leadership, which recommended that the Scottish Parliament domestically incorporate a range of international human rights commitments, including economic, social and cultural rights and the right to a healthy environment in addition to specific rights belonging to children, women, disabled people, and ethnic minority people and rights for older persons and for LGBTI communities.

Human rights reform proposals are also being worked on in Wales and Northern Ireland.

It would be fair to say however, that each of these proposals is surrounded by significant uncertainty.

The State of the Nations

The Westminster Parliament’s Joint Committee on Human Rights has recently pointed out (at page 10 of its recent legislative scrutiny report) that:

“The Bill of Rights Bill not only lacks support, but has caused overwhelming and widespread concern.”

Amongst those whose support seems to be ambivalent is Prime Minister Rishi Sunak who has “deprioritised” the Bill in favour of more targeted legislation, for example, a Bill designed to deter small boats from carrying asylum seekers across the Channel. Speculation also remains around the future position of Justice Secretary and architect of the Bill, Dominic Raab, who is currently being investigated for allegations around his conduct towards civil servants.

In Scotland, the progress of the anticipated Human Rights Bill has been complicated by the UK Supreme Court’s finding that the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill is outwith the competence of the Scottish Parliament because it contains provisions that would modify the power of the UK Parliament to make laws for Scotland, prohibited by section 28(7) of the Scotland Act 1998. Proposals to cure the legislative defect are still being worked out – and it is likely that this has had knock-on effects for the Human Rights Bill, which will need to address the same questions around ensuring that the Bill only has effect on devolved areas.  

The decision of the UK Government to exercise its power under section 35 of the Scotland Act 1998 to veto the Gender Recognition Reform (Scotland) Bill because of its perceived impact on the operation of UK equality laws creates additional complications for the drafters of the Human Rights Bill. The National Taskforce’s report acknowledges that the planned incorporation of UN treaties relating to rights for women, disabled people and ethnic minority people and the recognition of rights of older people and LGBTI communities will be subject to the provisions of the Human Rights Act 1998, the Equality Act 2010 and other aspects of devolved competence. However, the UK Government’s veto of the GRR Bill, and its recent interventionist approach to other Scottish Bills, suggests that the Scottish Government will need to tread very carefully in order to ward off further interventions from Whitehall.

Notwithstanding - or perhaps because of - this uncertainty, it is important that the domestic bills of rights processes currently underway reflect and are measured against key international human rights duties to which the UK is bound.

With this aim in mind, the Bonavero Institute of Human Rights at the University of Oxford, the Bingham Centre for the Rule of Law and Strathclyde’s Centre for the Study of Human Rights Law recently undertook a joint research project that sought to identify and examine key international human rights obligations that must be respected by states undertaking human rights reform.

The project was led by Murray Hunt (Bingham Centre), Professor Alan Miller (Centre for the Study of Human Rights Law), and Professor Kate O’Regan (Bonavero Institute). The principal researcher was Emma Rowland at the Bonavero Institute.  Alongside LLM Human Rights Law student Robyn Conlan, I provided research support on matters relating to the Scottish process.

Five Relevant Obligations

The Making of Bills of Rights: Relevant International Human Rights Obligations was published in the Bonavero Reports Series in January 2023.

The report identifies five obligations arising from international human rights law that are relevant to making and amending domestic bills of rights:

1. The Obligation to Respect, Protect and Fulfil Human Rights

States have various human rights obligations depending on the context. State Parties to human rights treaties must respect human rights by refraining from interfering with the enjoyment of rights; must protect individuals from actions of non-state actors where those actions may violate the individuals’ human rights and; must fulfil human rights by taking legislative, administrative and other measures towards the full realisation of rights. To comply with these duties, it is necessary for a state to have a framework in place that allows for assessment of the compliance of domestic law with international human rights law.

2. The Obligation to Provide an Effective Framework of Remedies

There is an obligation on states to provide a domestic framework of remedies for violations of human rights. International human rights protections are necessarily drafted in a “high-level” or programmatic manner. It is a function of domestic bills of rights to translate these protections into justiciable rights by use of more concrete and operational language and by creating specific remedies for alleged violations of human rights. The remedy does not always need to be judicial, but institutions tasked with overseeing remedies must be independent and impartial.

3. The Obligation to Monitor and Report on Human Rights

States Parties have explicit obligations under the international human rights treaties to submit reports to the treaty monitoring bodies on the steps that they have taken to implement the relevant human rights in the Covenants. Reports should indicate any factors or difficulties which are impacting the implementation of the relevant human rights. Central government, administrative bodies, national human rights monitoring institutions, legislatures and civil society actors, including NGOs should all have the opportunity to be involved in the monitoring process. Domestic human rights bills can facilitate this process by equipping these bodies with necessary powers to undertake review.

4. The Obligation to Ensure Public Participation in Shaping Bills of Rights

The right to public participation in public affairs is protected by Article 25 International Covenant on Civil and Political Rights. This obligation goes beyond the right to vote in periodic elections. States must also ensure that “citizens have an opportunity to exercise their rights to political participation”: a quote taken from the case Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11, 91. This can be ensured through “direct” participation or “indirect” participation via elected representatives. Reform to domestic bills of rights must therefore allow for some form of public participation and parliament, as a medium for public participation, should play a central role in drafting and scrutinising the reform.

5. The Obligation of Non-Regression in Rights Protection

There is a very strong presumption against the permissibility of regressive measures taken in relation to international human rights standards. It falls on the state to demonstrate that any deliberate retrogressive measures are truly necessary and fully justified with reference to the protection of all human rights. In pursuing changes to a human rights framework, care must be taken to ensure that the level of protection given to international human rights does not regress.

Conclusion

The report serves as a reminder that, whilst it is of course important that domestic bills of rights reflect national sensibilities, national human rights protection fits within and must be compliant with a broader international human rights system of protection.

Plans are underway at the Centre for Study of Human Rights Law to follow up on the report by drawing on the international obligations identified to undertake a review of the Scottish human rights reform process. The project will consider the steps taken in the Scottish process to date, for example, the work of the First Minister’s Advisory Group on Human Rights Leadership and the National Taskforce for Human Rights Leadership as well as contending with some of the legal and political developments that have occurred since the National Taskforce report.

This analysis will serve as a useful resource for parliamentarians, civil society and others involved in scrutinising the bill during the consultation process and beyond.