Books on shelf in a law mooting room

As Justice Secretary Dominic Raab revealed a sweeping overhaul of human rights law this week, an expert at Edge Hill University explains the significance of the reforms. 

The government has called the proposal, named the Bill of Rights, as “common sense” reforms that will “restore confidence” in the legal system. 

Dr Simon Hale-Ross, a Senior Lecturer in Law at Edge Hill University, has given his analysis on the move. 

Dr Simon Hale Ross
Dr Simon Hale Ross

What is the Human Rights Act 1998? 

“The Human Rights Act 1998 was introduced to ensure all new laws proposed by Parliament are conductive with the European Convention on Human Rights and Fundamental Freedoms 1950. 

“It also allowed people to bring human rights cases to an UK court, rather than having to fly directly to Strasbourg, which would usually cost an astronomical amount of money.” 

What is the Bill of Rights proposing? 

“There are several changes to human rights law, some of them more significant than others. 

“The proposals commit to staying within the European Convention on Human Rights, while stating the government wants to change how it is interpreted by the courts. This is a little confusing due to the jurisdictional issues surrounding the European Court of Human Rights. 

“It also recognises the right to trial by jury in the UK and to reinforce the weight given to freedom of speech. 

“The government is proposing to change the law to introduce circumstances in which a foreign national offender cannot claim the right to a family life in the UK to challenge their deportation. This is one of the most controversial moves in the Bill with many critics saying that foreign offenders might face persecution or torture in their own country and, in the worst cases, even death. 

“They also want to shift powers to ensure that the UK Supreme Court would have the final say on UK rights, by making clear in legislation that they should take their cue from British laws and experience, rather than rulings in Strasbourg. But this is already the case. The ruling and decisions made by the European Court of Human Rights are recommendary only, meaning we are not bound to follow those decisions.”

Who decides our human rights? 

“This reform falls on two conflicting principles of the United Kingdom’s constitution, and that is political constitutionalism vs legal constitutionalism.  

“In its simplest terms, the idea behind the former, is that one votes for the local Member of Parliament and by way of representative democracy they then introduce and vote on new laws. If you do not like the viewpoints or the way the local MP has voted on certain Bills, then you can vote in a new MP who will represent you and your views better.  

“The latter principle revolves around the Common Law system within England and Wales. Judges in England and Wales interpret the laws made by UK Parliament. They do this using one of four interpretation rules, which they usually document within the decision and judgement.  

“This is where the Latin term ‘stare decisis’ becomes rather important, in that decisions made by a higher court, such as the Supreme Court or the Court of Appeal, are binding on all future decisions made by lower courts. Whilst some rules on interpretation are more conducing to the ideal of Parliamentary Sovereignty, such as the Literal Rule, some do not, such as the Mischief Rule.  

“What aggravates the situation more is international jurisdiction. Rules made by the Court of Justice of the European Union for example, when dealing with EU Law, are binding on all the courts in the UK. This is one of the reasons behind the UK leaving the EU. 

“However, with regards to the European Convention on Human Rights and Fundamental Freedoms 1950, the situation is rather different. 

“This Convention came about following WWII and the associated atrocities committed by the Nazis under Adolf Hitlers management. It is designed to stop another head of state from persecuting his or her own citizens, and from creating laws that allow such persecution to happen.  

“Interestingly, the overwhelming majority of the Convention was written by lawyers from the UK.  

“Against this backdrop, we have the court in Strasbourg, namely the European Court of Human Rights. Now here is the difference, ruling given by the European Court of Human Rights are recommendatory only, they are not binding in any way of the courts in the UK, including England and Wales.” 

All of Edge Hill’s Law courses are qualifying law degrees, meaning students will be ready to enter legal practice as soon as they graduate.