Why we must save the Human Rights Act

By Laura Newlyn

Policy and Campaigns Officer at Humanists UK

In this specially-commissioned article for Humanistically Speaking, Laura Newlyn explains why the ability to argue that non-religious worldviews which are analogous to religious beliefs, such as humanism, must be 'read in' to existing legislation and policies about ‘religion’ has been vital to protect the interests of humanists.

In September 2022, the new Religion, Values and Ethics (RVE) syllabus was rolled out to secondary schools across Wales. It replaces traditional religious education (RE) with a syllabus that is inclusive of non-religious worldviews, such as humanism, on an equal footing with religions - a first for the UK. With 2021 census data showing that there are more non-religious people in Wales than any religious group, a syllabus that reflects the beliefs of children in Wales - or at the very least, the plethora of beliefs of the people they will encounter in the pluralistic society in which they live - this seems like an obvious and sensible choice.

But what’s this got to do with the Human Rights Act? It’s fair to say that an inclusive and meaningful syllabus probably wouldn’t even have been considered without the Human Rights Act (HRA). There are two sections in the HRA that are really important to humanists – section 3 and section 6. Section 6 says that all public bodies – be it the Government, the police, your local authority, a state-run care home or a state-funded school – must not violate your human rights as listed in the European Convention of Human Rights. Section 3 empowers courts and public bodies to ‘read in’ extra words to legislation and policy to make sure that your human rights are respected. This means that policies and legislation that mention ‘religion’ must be understood to include analogous non-religious worldviews, such as humanism.

And this is why the Welsh Government was not only inspired to develop an inclusive RVE syllabus. Arguably, they were compelled to do so. In fact, the landmark 2015 High Court case, Fox v Secretary of State for Education, found that RE had to be inclusive of humanism, and to be objective, critical, and pluralistic, in order to comply with the right to freedom of religion or belief. Despite this, RE in England lacks clear government guidance, and its provision is left up to local authorities instead.

"...because of the Human Rights Act, humanists can and should be represented on SACREs and humanism can and should be taught on an equal footing with religions."

This is why, at Humanists UK, we have been forced, repeatedly, to engage with local authorities across England that have refused to allow a humanist to sit on their Standing Advisory Council on Religious Education (SACRE), the local statutory body that is responsible for overseeing the RE curriculum of maintained schools in their area. This refusal is consistently on the basis that humanism is not a ‘religion’. However, these disputes have invariably been resolved through a ‘reading-in’ under sections 3 and 6 of the HRA. The local authority is not allowed to undermine human rights. They must respect the right to freedom of religion and belief, and you must be able to enjoy this right free from discrimination on the basis of ‘religion’. The local authority has the power, and duty, to interpret ‘religion’ as ‘religion or belief’. Therefore, because of the HRA, humanists can and should be represented on SACREs, and humanism can and should be taught on an equal footing with religions.

Humanists and the Human Rights Act

But this is just one of many examples of the HRA in action for humanists. In 2005, humanist marriages became legally recognised in Scotland after the Registrar General established that he had to interpret ‘religion’ as inclusive of non-religious beliefs, as a 'reading-in' of HRA section 3. Similarly, in 2017, humanist marriages were legally recognised in Northern Ireland after a judge found them to be included in existing marriage law through such a reading-in. These interpretations have allowed humanist couples to have uniquely tailored wedding ceremonies that reflect their deeply held worldviews, just as their religious counterparts can. And humanist marriages have become popular in both jurisdictions. This same ‘reading-in’ interpretation also allows prisons and NHS Trusts to ensure that their chaplaincy and pastoral support teams provide like-minded and appropriate care for non-religious prisoners and patients. Such support has a huge impact on the individuals who receive it, who were previously not served through an entirely religious service.

The ability to argue that non-religious worldviews which are analogous to religious beliefs, such as humanism, must be read into existing legislation and policies about ‘religion’ has been vital. This reading-in ensures that humanists and other non-religious people are not unlawfully discriminated against, and places a duty on public bodies to put human rights front and centre in their policy decisions. This argument is the foundation of twenty years of positive change, making sure that humanists and other non-religious people can enjoy the right to freedom of belief and equal treatment. And this crucial power of interpretation exists because of section 3 of the HRA.

From these examples, you may have noticed that it is not always necessary to go to court to make sure you can enjoy your human rights. That’s because section 6 of the HRA empowers public bodies to create that rights-respecting culture for themselves, before it escalates to costly and time-consuming legal proceedings for all involved.

The Human Rights Act is for everyone

Section 3 isn’t only protecting the rights of humanists and other non-religious people. The charity JUSTICE identified 24 cases where section 3 has been used to effectively interpret legislation that otherwise would have violated the the human rights of people in a broad range of circumstances. Section 3 has been used to ensure adopted children can access inheritance on equal terms with biological children. It has been used to recognise the parents of children born as the result of surrogacy arrangements to enable those children to have the social and emotional benefits of that recognition. Section 3 has been used to ensure that a child with a recognised condition that gave rise to aggressive behaviour could not be excluded from school without the provision of support that might enable them to manage their behaviour. It has also been used to find that judicial officers cannot be subject to a lower standard of protection in whistleblowing cases.

The Risk of Repealing the Human Rights Act

The Government puts forward several misleading arguments for repealing the HRA. There are two key points of contention to consider when listening to or reading that rhetoric. First, dynamic interpretation – interpreting the text of an old legal document within a modern day context – is crucial for the continued legitimacy of human rights treaties like the European Convention on Human Rights (ECHR). The ECHR is often called a ‘living instrument’. This means it can and should be interpreted in line with constantly changing social norms which would not have been predicted by the original drafters. For example, references to homosexuality are entirely absent from the ECHR. Yet the European Court of Human Rights (ECtHR) in Strasbourg – through a dynamic interpretation of article 8 (the right to respect for private and family life) – found a breach in the continued criminalisation of 'acts of gross indecency’ in private between consenting men in Northern Ireland. It’s indisputable that the ECtHR’s dynamic interpretation was both correct and necessary. Yet most notably, the Government wants to do away with ‘interpretations [of human rights] that go way beyond anything that the architects of the Convention had in mind’. But the Convention was drafted in 1949!

Second, as it stands, if you have your human rights breached by a ‘state actor’ – i.e. the Government or another public body, you can take them to a UK court. Section 2 of the HRA states that UK courts ‘must take into account’ judgments of the ECtHR, but they are not necessarily bound by those judgments. This enables the UK courts to keep their independence when balancing human rights cases in a UK context with broader case law of the Strasbourg Court. The Government claims that reforming the HRA will ‘empower UK courts to apply human rights in a UK context, affirming the Supreme Court’s independence from the Strasbourg Court’, but the HRA already does that!

Save our Human Rights Act!

At the time of writing, the future of the Government’s dreadful Bill of Rights Bill – more appropriately dubbed the Rights Removal Bill – was uncertain. It was set to repeal the HRA and replace it with an instrument that would risk rolling back on section 3 readings-in, like the ones we’ve championed throughout this article. And Justice Secretary, Dominic Raab, confirmed that repealing section 3 was indeed a priority when he gave evidence before the Joint Committee on Human Rights in December. I think we should consider how human rights law is intended, primarily, to protect individuals like us against abuses of ‘state actors’. Through sections 3 and 6, the HRA has helped to foster a rights-respecting culture in public bodies throughout the UK. Just because someone has never had to make a claim in court, doesn’t mean they haven’t benefited from the HRA. It’s like saying you don’t need freedom of expression because you don’t have anything important to say. Perhaps you don’t realise how much you need it until it’s taken away.

How you can help

To write to your MP to save the HRA, visit: https://humanists.uk/what-you-can-do-to-help/protect-the-rights-of-the-non-religious/

Editor's note

As we finalised this month's issue for publication, we learnt that the UK Parliament’s Joint Committee on Human Rights has published its report into the so-called 'Bill of Rights Bill', which would replace the Human Rights Act. The Committee urges the UK Government to abandon the Bill entirely. For more on this see this news item from Humanists UK.