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Plans to scrap Human Rights Act are legally flawed and may create a two-speed system of rights in UK
Within days of being elected, the new government has sparked much controversy by confirming that it intends to carry out its manifesto pledge to repeal the Human Rights Act 1998 (HRA) and replace it with a British Bill of Rights. LAG argues that this cannot be achieved without overcoming considerable impediments and the Conservatives might be best advised to drop the idea, as the last Labour government did.
A major hurdle to any repeal will be the lack of consent from Scotland, Wales and Northern Ireland. When the constitutional chips are down, it’s probably unlikely that Scotland and Wales have any power to veto it, but Northern Ireland presents a different problem.
The HRA is directly transposed into the Good Friday Agreement, which consists of an accord between the political parties in Northern Ireland and an international treaty between the UK and Ireland. Any change would require the consent of all parties to the agreements – including the Irish government. LAG fears that the government plans to exclude Northern Ireland from any new Bill of Rights if no consensus can be reached on a change to the Good Friday Agreement. It might also do the same for Scotland as the proposed repeal would contribute to demands for a new referendum on independence. This would lead to a two-speed system of enforcing human rights in the UK.
As has already been pointed out by many commentators, the basic premise behind the proposed repeal – to give the final say on the interpretation of the European Convention on Human Rights in the UK to the Supreme Court – is legally flawed. It is also questionable whether the UK can remain a member of the EU if it decides it will no longer be bound by the convention. While the convention is separate from the EU, it is so intertwined with EU treaties and institutions that it would be difficult for a country to withdraw from the former while remaining a member of the latter.
Labour, when it was last in government, proposed a Bill of Rights and Duties in a green paper, The governance of Britain, published in July 2007. LAG believes it wanted to recast the HRA as a creature of British constitutional tradition, drawing on historic roots such as the 1689 English Bill of Rights, which followed the overthrow of James II in 1688. This was, perhaps, a laudable aim, but the idea was quietly dropped, probably because of the sorts of complexities that have been set out above (discussed in ‘Rights and duties’, February 2008 Legal Action 3).
‘LAG fears the government plans to exclude Northern Ireland from any new Bill of Rights if no consensus can be reached on the Good Friday Agreement.’
As the policy to repeal the HRA is a manifesto commitment, it is unlikely that the government will not try to pursue it. However, the best it can achieve will be some sort of shoddy compromise that will probably involve different laws in the constituent parts of the UK. This will please no one, least of all the HRA’s detractors, fixated as they are on convention rights in a few cases involving foreign nationals and on those concerning voting rights for prisoners.
The Conservatives might also discover that nothing galvanises people’s support for rights quite like the threat of losing them. These plans, and the backlash against them, could well have the effect of building popular support for the HRA – something that LAG would welcome.