Could The Great Repeal Bill Allow British Government To Scrap the Human Rights Act 1998?

By Oshin Shahiean, of OTS Solicitors

The European Union (Withdrawal) Bill, sometimes referred to as the Great Repeal Bill, was published earlier this week. This is an extraordinary document which affects almost every area of law in the UK and touches most aspects of our everyday lives.

This article will concentrate on what the European Union (Withdrawal) Bill means for Immigration and Human Rights. Given that British Prime Minister, Theresa May, has never hidden her desire to scrap the Human Rights Act 1998 could this Bill be the first step towards her being able to achieve her ambition? What is the Charter of Fundamental Rights of the European Union? Could removing this from UK law, as the European Union (Withdrawal) Bill proposes to do, affect the ability of migrants to bring judicial review claims on Human Rights grounds?

The scale of change and uncertainty the European Union (Withdrawal) Bill is likely to generate will result in the best lawyers, not only those who practice Immigration, but all other areas as well, being called on regularly to help interpret new regulations. Both commercial and private clients are likely to require expert legal advice on how their interests and position will change after the UK exits the EU. But for immigrants, any changes to the law, particularly Human Rights law, can have enormous consequences. For example, from 2015 the British government ended full rights of appeal under the Points-Based System. Migrants whose applications for a visa were refused can now only appeal on Human Rights or refugee grounds. Otherwise, they must challenge the decision by judicial review.

Limitations to Human Rights, especially involving the principles of Article 8 of the European Convention on Human Rights, which protects the right to family and private life, could have catastrophic consequences to vulnerable immigrants living in the UK.

To be clear, there has been no mention of any changes being made to the Human Rights Act 1998, which brings the principles of the European Convention of Human Rights into UK law. But could Brexit make it easier for the Human Rights Act 1998 to be amended or scrapped altogether, something the Conservative government seemed keen to do prior to the EU referendum?

The Charter of Fundamental Rights of the European Union

The Conservative government has stated that there is no reason to include the Charter of Fundamental Rights of the European Union in UK legislation after Brexit.

The Charter of Fundamental Rights of the European Union brings together the fundamental rights of everyone living in the EU. The Charter sets out the full range of civil, political, economic and social rights based on:

• the fundamental rights and freedoms recognised by the European Convention on Human Rights
• the constitutional traditions of the EU Member States, for example, longstanding protections of rights which exist in the common law and constitutional law of the UK and other EU Member States
• the Council of Europe's Social Charter
• the Community Charter of Fundamental Social Rights of Workers, and
• other international conventions to which the EU or its Member States are parties.

The Charter became legally binding on EU Member States when the Treaty of Lisbon entered into force in December 2009.

The Charter of Fundamental Rights of the European Union is completely separate from the European Convention on Human Rights.

The European Convention on Human Rights was drafted by the Council of Europe in Strasbourg and is interpreted by the European Court of Human Rights, unlike the Charter of Fundamental Rights of the European Union which was drafted by the EU and is interpreted by the European Court of Justice.

Opposition parties, including Labour and the Liberal Democrats have stated they will refuse to vote for the European Union (Withdrawal) Bill if it does transfer the Charter of Fundamental Rights of the European Union into UK law.

Why does Theresa May want to scrap the Bill of Rights 1998?

It was actually Theresa May’s predecessor, David Cameron who wanted to replace the Bill of Rights 1998 with a British Bill of Rights. However, Theresa May backed him 100%. In a speech prior to the EU referendum in 2016, Mrs May stated that regardless of the referendum result, Britain should abandon the European Convention on Human Rights, a statement which alarmed the best Immigration solicitors fighting for their clients’ rights to be upheld in the courts through Human Rights appeals and/or judicial review.

Theresa May’s loathing of the European Convention on Human Rights seems to stem from her days as Home Secretary, when she was often prevented from deporting foreign nationals thanks to the protection the Convention offered them.

However, at the beginning of the year The Daily Telegraph reported that Theresa May had shelved plans to replace the Human Rights Act “because Brexit will significantly strengthen the sovereignty of British courts”.

In conclusion

It seems for now that there will be no changes in relation to the European Convention of Human Rights and British law. But there is no denying that leaving the European Union may provide an opportunity for the government to scrap the Human Rights Act 1998 and create a new British Bill of Rights which gets rid of parts of the Convention such as Article 8 that are often relied on in Immigration appeals.

Is this a possibility? Perhaps, although it is likely that the enormous amount of work involved in implementing Brexit and solidifying the rights of EEA nationals currently living in the UK means that any moves to modify Human Rights will take a back seat in the near future.

It is imperative that those who are making visa applications seek the advice of an experienced Immigration lawyer who can set out their application to give it the best chance of being able to provide an option to appeal on Human Rights grounds. Failure to prepare an Immigration application with this in mind could result in there being no grounds for an appeal and the only avenue open to have the decision reviewed is by judicial review, which can be very expensive and time-consuming option.

We will continue to update you on any changes to the law affecting Immigration, Human Rights and judicial review as the European Union (Withdrawal) Bill continues to progress through Parliament over the coming months.

OTS Solicitors is one of the most respected immigration law firms in London.

By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.