Rolling Back on Rights: The Refugee Ban Bill & Rights Removal Bill

The Human Rights Act (HRA) is a powerful tool that protects the basic rights and freedoms of individuals in the UK, providing a safety net for those who might otherwise fall through the gaps in legal protections. Read our guide to the Human Rights Act here. The HRA is based on the European Convention on Human Rights, which outlines fundamental rights and freedoms that every individual is entitled to. The Convention was established after the atrocities of World War II, to prevent such violations of human rights from ever happening again. You can read our guide to the ECHR here.

The HRA has been instrumental in securing basic dignity and respect for people from all walks of life in their interactions with public services. It places a duty on public officials to actively respect and protect human rights, ensuring investigations, accountability, and lessons are learned when rights are not upheld. For example, the duty to conduct a proper investigation into a loss of life concerning a public body, such as the inquest into the Hillsborough disaster. Read a lawyer’s blog about the Hillsborough case here.

However, the current UK government has been actively working to weaken accountability and limit their duties under human rights law. The Bill of Rights Bill, or as we call it the Rights Removal Bill, presented to Parliament in 2022, is a dangerous and discriminatory piece of legislation that seeks to restrict the application of existing obligations under the HRA. We have extensive information on the Rights Removal Bill here. The Bill is currently paused on the parliamentary timetable.

The Illegal Migration Bill, or as we call it the Refugee Ban Bill, presented to Parliament in March 2023, has doubled down on the attack that the Rights Removal Bill launched last year. Please read more in our hub on the Refugee Ban Bill here. The theme of both Bills is an attempt to weaken accountability and limit the UK's compliance duties under the European Convention and the Convention's ability to protect people in the UK.

This blog looks at some of the ways these Bills attempt to limit government accountability and roll back on our legally protected rights.

An attack on government accountability and compliance with the ECHR

Keeping people safe from harm

Positive obligations are a fundamental part of the Human Rights Act, placing a duty on public officials to step in and provide protection of human rights in an active way. Positive obligations ensure that investigations, accountability, and lessons are learned when people's Convention rights are not upheld.

The Right to Life (Article 2) and the Right to be Free from Torture, Inhuman, and Degrading Treatment (Article 3) in the HRA are particularly at risk from the Rights Removal Bill and the Refugee Ban Bill.

Clause 5 of the Rights Removal Bill prevents courts in the UK from interpreting a human right as imposing a positive obligation on a public body, unless one of the top UK courts or the European Court of Human Rights has previously interpreted that human right in that way.

This freezes our rights protections in time and prevents courts from interpreting human rights as developing 'new' positive obligations in new situations. This change is likely to have a disproportionate adverse impact on people already in vulnerable positions (for example because they have to rely on the state for care and support needs, or being detained, including people with mental health issues) and could leave them without a remedy in the UK courts.

Also, Clause 5 says that the courts should limit the application of current positive obligations if they impact on the resources of public authorities. This would be a very common occurrence and could have devastating effects on people's lives. Currently, public bodies are only expected to do what is reasonable in the circumstances, taking into account the resources available to the public body and the risks faced. These tests already set a high bar for there to be a breach of a positive obligation by the state against a person.

Ensuring access to justice

The Right to an Effective Remedy, outlined in Article 13 of the European Convention on Human Rights, is crucial for individuals to seek justice when their human rights are put at risk. However, both the Rights Removal Bill and the Refugee Ban Bill pose risks to our ability to access justice. The Rights Removal Bill adds a permission stage that makes it harder for ordinary people to access justice and hold the government and public bodies to account. As well as meeting the current criteria for bringing a claim, individuals would also have to apply for permission to bring a claim and persuade the court that their case has a reasonable prospect of success. This is likely to have a chilling effect on access to justice, as it will make it harder for individuals to bring cases even where there is a clear violation of their human rights.

Ensuring rights belong to us all

The Refugee Ban Bill also poses a significant risk to the rights of refugees and asylum seekers. The Bill seeks to criminalize the act of seeking asylum in the UK through unauthorized means, including crossing the Channel in small boats. This would be a clear violation of Article 31 of the 1951 Refugee Convention, which prohibits states from penalizing refugees for illegal entry or stay when they are coming directly from a territory where their life or freedom was threatened.

By criminalizing the act of seeking asylum in the UK, the Refugee Ban Bill would effectively remove the ability of refugees and asylum seekers to claim their rights under the HRA and the European Convention. It would also violate the principle of non-refoulement, which prohibits states from returning individuals to a country where they face a risk of persecution or other serious harm.

It doesn’t stop there

In addition to these Bills, the UK government has also sought to erode human rights protections through other means.

The Public Order Bill, currently making its way through Parliament, includes provisions that could limit the right to protest. This includes the power to impose conditions on protests that are deemed to cause a disruption. This could have a chilling effect on freedom of expression and the right to peaceful assembly, which are both protected under the HRA and the European Convention (in Article 11 of the HRA, The Right to Freedom of Assembly and Association is protected, read more about Article 11 here).

In conclusion, the Rights Removal Bill and the Refugee Ban Bill, alongside other measures such as the Police, Crime, Sentencing and Courts Bill, pose a significant risk to human rights protections in the UK. By seeking to limit accountability and weaken positive obligations, the government is eroding the very protections that are designed to safeguard the basic rights and freedoms of individuals. It is crucial that civil society and lawmakers continue to hold the government to account and ensure that human rights are not sacrificed in the pursuit of political expediency or populist rhetoric.

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