A UK Bill of Rights? [13 March 2017]

The Human Rights Act to be replaced by a British Bill of Rights… at some point?

Current position: Plans for a British Bill of Rights have been put on hold until Brexit issues have been resolved; however, it seems inevitable that the matter will be returned to by current/ future Conservative administrations, when the opportunity arises.

Concerns: There may be nothing inherently wrong with replacing the Human Rights Act 1998 with a British Bill of Rights, provided the matter is approached in good faith and in a constructive way as regards the protection of human rights and the UK’s relationship with Strasbourg. There, however, lies the concern: all the ‘Background’ evidence suggests that the Conservative Party’s approach would be to use a British Bill of Rights to reduce human rights protection standards, and cause harm to the UK’s relations with Strasbourg, thereby increasing the likelihood of UK withdrawal from the ECHR.

There is a long backdrop to this concern (which I have set out elsewhere: see E Bates, ‘The UK and Strasbourg: A Strained Relationship – The Long View’ in K S Ziegler, E Wicks and L Hodson (eds), The UK and European Human Rights: A Strained Relationship?, (Hart, 2015) (draft version available at SSRN: http://ssrn.com/abstract=2568713). It was graphically evidenced by an October 2014 Conservative party document on human rights protection in the UK (and which was subject to wholesale criticism at the time). The constitutionally self-righteous narrative on display then essentially went as follows: the UK had played a leading role in drafting a good substantive Convention text, which Strasbourg had, over the years, interpreted incorrectly, abusing its power; as such, if things did not change, the UK would be justified in withdrawing from the ECHR.

For the authors of the 2014 document, this was the backdrop to proposed repeal of the Human Rights Act and its replacement by a British Bill of Rights. The aim was to use a new UK human rights landscape to reject those aspects of Strasbourg law that Conservatives regarded as unacceptable, at least for the purposes of domestic law.

In fact, the 2014 document was (as far as I am aware) never settled as Conservative Party policy. By comparison the UK Conservative party Manifesto of May 2015 (Manifesto May 2015), was considerably toned down. It stated (p 60):

‘The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK’.

The ‘Brexit’-like’ tone of the second sentence of this extract is notable, although, as noted above, it transpires that ‘Brexit’ itself has pushed reform of the domestic human rights landscape into the long grass (no Draft British Bill ever having been published).

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