Human Rights Act: Boris Johnson's government must not be allowed to undermine our fundamental rights – Barbara Bolton, Scottish Human Rights Commission

What do you imagine is on the desk of the ‘head of legal and policy’ at the Scottish Human Rights Commission? Maybe heaps of lengthy documents? You’d be right – sometimes.

Boris Johnson and Dominic Raab want to replace the Human Rights Act with a watered-down version called the Bill of Rights (Picture: Jeff Gilbert - WPA Pool/Getty Images)

But you might also be surprised by what crosses my desk and how strongly it’s linked to the day-to-day lives of people in Scotland. For example, issues I’ve dealt with recently include how we get people’s voices heard at the Covid inquiry, and what human rights can tell us about visiting relatives in care homes.

The reality is the rights enshrined in the Human Rights Act (HRA) touch all areas of our lives. Our family life, freedoms, privacy and right to be protected by the state from violence and harm.

But in March, UK Justice Secretary Dominic Raab closed his consultation on proposals to scrap this long-established protector of fundamental rights and freedoms across Scotland and the rest of the UK.

He wants to replace it with a new “Bill of Rights”, a plan that will substantially weaken protection for everyone in Scotland, and make it more difficult to seek justice when rights are ignored.

If passed, this could also put the UK in breach of its international obligations, undermining the rule of law and rights protection in Europe. It also creates complex questions related to devolution.

We believe Mr Raab’s plan is based on a false premise and flawed process. Here are five key reasons why.

First, in a rights-respecting society, those in power recognise the universal and inalienable status of human rights – and welcome accountability when they’re breached. The UK Government’s plan would take us in the opposite direction, diluting rights and avoiding accountability.

At the Commission, we’re clear the HRA works well to protect our rights. In March, we detailed our concerns to the UK Government, stressing it’s a valued law that makes Scotland a fairer, more equal place to live. It also reflects the principle that human rights are universal – we don’t need to earn or justify why we deserve them.

In contrast, Mr Raab’s plan could create tiers of people within society, some deemed not deserving of full protection and others excluded altogether. It would also mean some rights violations wouldn’t be considered severe enough to warrant action.

This is completely at odds with a rights-respecting society.

Our second concern is access to justice. The new Bill of Rights would make it harder to hold those in power to account and to access justice when rights are breached.

Significant hurdles would be introduced, making it more difficult, expensive and time consuming to take a claim to court. And if, as proposed, UK courts are required to interpret human rights separately from the European Court of Human Rights, the likely result will be confusion, uncertainty and less rights protection.

Securing justice is already challenging and the aim should be to make it easier, not harder.

Thirdly, the HRA is embedded into devolution through the Scotland Act. Together, these laws have woven European Convention rights into the fabric of Scotland’s laws, the legislative competence of the Scottish Parliament and the powers of government.

This is widely considered to be a positive of devolution and the Parliament, public authorities and civil society have built on it, developing a more rights-based culture. Precisely how the HRA could be replaced without unsettling current devolution arrangements is unclear.

Our fourth concern is the false premise of this plan. It paints a negative picture of human rights as a hindrance, rather than essential protections against abuse of power that must be respected, even when a government considers it inconvenient.

Like others, we take a more positive view. Recently, 46 Scottish civil society organisations signed a joint response to Mr Raab’s proposals, stressing the vital importance of rights, particularly to marginalised communities.

At the Commission, we know that for more than 20 years the HRA has defended people in Scotland. For example, important court decisions have led to improvements in protection of children, administration of justice and freedom from inhuman or degrading treatment.

Rights are also embedded in the design of essential public services. During the pandemic, we’ve seen how vital it is that rights are respected, protected and fulfilled, including by the police, NHS, in care homes and schools. It is now critical that rights are at the heart of the Covid public inquiries, soon to be conducted. But the UK Government’s proposals would dilute these very requirements.

There is broad civil society and cross-party support for strengthening rights protection in Scotland. For example, a project is underway to enshrine additional human rights into Scots law, including the right to adequate housing, food, education, health, a healthy environment, and specific protections for women, ethnic minorities, and older, disabled and LGBT+ people.

The UK Government should similarly be seeking to strengthen rights protections, rather than dismantling what already exists.

Finally, a Bill of Rights has profound importance and, to have legitimacy, must be underpinned by thorough processes. It should be informed by the strongest expert evidence, and the direct, active participation of ordinary people. It is concerning the UK Government has not adopted a process to enable that.

In fact, it has ignored its own independent review, which spent nine months taking evidence, concluding there was no case for the widespread change proposed.

It will take concerted efforts to defend the HRA, involving civil society, grassroots and legal communities explaining why its protections are so vital. We’re calling on the UK Government to retain the Human Rights Act. To join us, contact your MPs and MSPs, asking them to take all possible action to protect your rights.

Barbara Bolton is head of legal and policy at the Scottish Human Rights Commission

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