Last week four key pieces of legislation were passed by the UK Parliament.
- The Nationalities and Borders Act (AKA the Refugee Act)
- The Police, Crimes, Sentencing and Courts Act
- The Elections Act
- The Judicial Review and Courts Act
In addition, we are expecting announcements in relation to ‘reform’ of the Human Rights Act and Retained EU Law in the Queen’s Speech next week.
Taken together, we can see that this legislative agenda is not a series of random attacks, but part of a concerted effort by the current Executive to erode human rights and target some of the most marginalised in our society, while at the same time seeking to dismantle mechanisms used to hold the Executive to account for their actions.
In this piece, we have attempted to ‘join the dots’ – because it is only by seeing the full scale and extent of what we are threatened with that we can stand together in solidarity to protect the dignity of all and ensure compassion and proper accountability win through.
This blog breaks down current threats, risks on the horizon, and actions we can take to fight together for all our rights.
What is at stake
- Amongst other measures, the Nationalities and Borders Act will permit the offshore processing of people seeking asylum and the creation of warehouse-style reception centres on UK soil.
- The Police, Crime, Sentencing and Courts (PCSC) Act represents an attack on the right to protest and threatens to criminalise the traditional way of life of Gypsy, Roma and Traveller (GRT) communities.
- The Elections Act will make it much harder for millions of people to vote in elections, particularly those from already marginalised groups, by requiring all voters in Great Britain to show ID at polling stations.
- Reform of judicial review through the Judicial Review and Courts Act represents a worrying development – judicial review is key to holding those in power to account.
- In its proposed reform of the Human Rights Act, we do not believe the Executive is acting in good faith to strengthen our rights, but rather that they are seeking to undermine both our fundamental rights and the ways in which we can hold those in power to account when they violate our rights.
- The UK Government proposal that new powers be created to amend retained EU law would reduce Parliamentary supervision. Given the ways in which REUL protects our rights and equality, this reduction in accountability is very concerning.
In more detail
The Nationalities and Borders Act, dubbed the ‘anti-refugee’ bill, has now passed. The Bill was condemned widely by civil society in the UK and by the United Nations. It is a broadside attack on the rights of those who have fled wars, conflict, and persecution and seek refuge in the UK. In addition, the law fails to introduce new routes for people fleeing war and persecution to claim asylum in the UK and so leaves people vulnerable to exploitation and reliant upon criminal gangs to reach safety. It is an attack on those already experiencing huge violations of their rights. As noted by Together with Refugees,
“This bill will punish refugees who have been left with no other options [but] to find safety from war and persecution by taking dangerous journeys to get to the UK, and it will criminalise people for simply trying. It’s completely at odds with the UN Refugee Convention and will see the UK renege on our international obligations.”
The Police, Crime, Sentencing and Courts (PCSC) Act has now passed. The legislation, which Liberty has categorised as, “discriminatory and authoritarian” represents an attack on the right to protest, which is protected by Article 11 of the European Convention on Human Rights (Freedom of Assembly).
Protest, particularly protest against the government of the day, is a cornerstone of a healthy, modern democracy and a crucial way in which the public can legitimately hold those in power to account. Cracking down on legitimate, non-violent protest is a deeply concerning tactic most usually utilised by authoritarian regimes.
It is absolutely unacceptable that Part 4 of the Act threatens to criminalise the traditional way of life of Gypsy, Roma and Traveller (GRT) communities. It introduces a new criminal offence where trespassers reside or have the intent to reside. As noted by Friends, Families and Travellers, failure to comply can lead to the police exercising powers to seize a vehicle (someone’s home and possessions) as well as imprisonment and a fine. GRT communities already face disproportionate violations of their rights, with life expectancies between 10 and 25 years shorter than the general population and children from these communities experiencing the lowest academic attainment of all ethnic groups throughout their school years. To further marginalise the rights of communities already experiencing such clear and disproportionate violations is morally reprehensible and we will not accept it.
As highlighted by the Police Bill Alliance (an informal coalition of 350+ UK organisations that opposed the bill’s assault on freedom, rights and marginalised communities), the Act seeks to criminalise rather than realise rights:
“The Bill will  criminalise Gypsy, Traveller and nomadic families who have no place to stop and rest. The chronic lack of safe stopping places means the Government has ultimately chosen punishment over provision. It’s cruel to use the full strength of the law to tell people where they can’t go but offer nowhere they can go.”
 For further reading about the myriad of disproportionate human rights violations GRT communities already face in the UK, check out the Shadow Report to the Universal Periodic Review Working Group and UN Member States: Focus Report on Gypsy, Roma and Traveller Communities March 2022.
The Elections Act has now passed. This will require all voters in Great Britain to show ID at polling stations, a move which Liberty has noted will make it much harder for millions of people to vote in elections, particularly those from already marginalised groups. In the context of the above reforms, this represents another attack on those who are already marginalised by our society and another way for the UK Government to avoid being held to account – this time by the electorate at election time.
The right to vote is guaranteed by Article 3, Protocol 1 of the European Convention on Human Rights and the UK Government should be doing everything it can to help people exercise this right, rather than making it more difficult.
The Act will also impact the Electoral Commission, an independent agency which oversees elections in the UK, by giving the Executive rather than Parliament a greater say in the work of the Commission. Again, in the overall context of other reforms, this shift of power represents a potentially worrying direction for effective and independent scrutiny.
The Judicial Review and Courts Bill has now passed. Judicial Review is a key mechanism whereby people can hold public authorities and the UK Government to account when they act unlawfully. While the UK Government made some important concessions in order to pass Bill, the Public Law Project has highlighted concerns:
“Clause 2 of the Bill  ‘ousts’ Cart judicial reviews which are used mostly in immigration and social security cases to overturn serious errors of law made by tribunals. Cart judicial reviews have prevented deportations to authoritarian regimes where people risked torture and death, and brought justice to very vulnerable people who were unlawfully denied their benefits.”
Again, we see the UK Government avoiding scrutiny and targeting those most marginalised by our society.
The Queen’s Speech included the UK Government’s intention to replace the Human Rights Act with a ‘bill of rights’. We have already written at length about our opposition to the proposed reform of the Human Rights Act and our misgivings about the intentions behind this scheme. We do not believe the Executive is acting in good faith to strengthen our rights, but rather that they are seeking to undermine both our fundamental rights, and the ways in which we can hold those in power to account when they violate our rights.
In addition, the Executive is seeking to conduct this ‘overhaul’ through consultation documents which are so limited in scope and legally technical that they act as an effective barrier to participation to all but the most particularly legally trained. Conversations about our fundamental rights should not take place without all people in the UK having a chance to consider the issues and have their voices heard.
The reform also seeks to run roughshod over the clearly expressed views and the very different trajectories of the devolved jurisdictions across the UK. Again, it is difficult to see this proposed reform as anything other than an attack on the rights of the people, and a further attempt to evade scrutiny by the UK Government.
Risks on the horizon
In September 2021 then Minister of State at the Cabinet Office (with responsibility for Brexit), Baron David Frost announced a review of retained EU law (REUL). In January 2022 the ‘Benefits of Brexit’ paper proposed that new powers be created to amend REUL by way of domestic secondary legislation. Such a move would put the power to amend REUL in the hands of UK Government ministers, without the oversight of Parliament.
Given the ways in which REUL protects our rights and equality, the proposal to cut Parliamentary supervision is seriously concerning. This proposal again represents and attack on our rights and another way in which the UK Government is seeking to evade proper scrutiny of its work.
 As noted by Professor Banard, “To ensure continuity of the legal system before and after Brexit, a ‘snapshot’ was taken of all EU law on Brexit day and converted into UK law under the European Union (Withdrawal) Act 2018 (EUWA). All EU law (except the Charter of Fundamental Rights), together with principles of interpretation (known as ‘general principles of law’) and the pre-Brexit case law of the ECJ, was ‘onshored’ into UK law as ‘retained EU Law’ (REUL) on 31 December 2020.”
Up for the challenge
The challenges for those of us seeking to stand against these attacks are formidable, and the stakes are unbearably high, but we believe that human dignity and human rights will win out because:
- We have seen the compassion that people across the UK have shown in response to those fleeing war in Ukraine, opening their own homes.
- We know that the Covid-19 pandemic has forever changed our society – as we all better understand how we function not as separate individuals, but as members of wider communities, reliant on each other. As the saying goes, ‘Ar scáth a chéile a mhaireann na daoine’ (in the shadow of each other, we live).
- We know that across the UK communities already working hard and claiming their rights.
- We also know that civil society is strong and it is united. We will not be divided, and we will ensure that the future we are building is inclusive and intersectional, with space for everyone to realise their potential and live lives of dignity. Human rights are universal and indivisible, and we will win.
- Campaigning already has made a difference – we have already seen some of the most harmful potential provisions removed from these laws before they were passed – and we will keep fighting to resist the attacks on human rights.
We will stand in solidarity with everyone who is experiencing particular and disproportionate violations of their rights – this is a collective fight.
For our part Just Fair will continue to work to hold the UK Government and public authorities to account for the violation of rights.
We will work with all our partners and allies towards a future where everyone’s economic, social, and cultural rights are respected, protected, and fulfilled.