Human Rights Act 1998 (Repeal and Substitution) Bill: going nowhere, but a sign of things to come?

The Human Rights Act 1998 (Repeal and Substitution) Bill – a Private Member’s Bill promoted by Charlie Elphicke MP – has been published. Its purpose (as its name suggests) is to replace the HRA with a UK Bill of Rights – and Responsibilities. On a first read-through (and I’m not certain it deserves a second look) the main features of the Bill appear to include the following.

First, it would replace the HRA’s “Convention rights” with “UK rights”. These are similar, but not identical, to the Convention rights. For example, the right to respect for private life would be made subject to the following qualification (not found in the HRA or the ECHR):

This Article shall not apply to prejudice, hinder or avoid the trial and punishment of any person for any act or omission which is criminal under the laws of the United Kingdom or the laws of any other country or territory.

Similarly, and predictably, the “right to free elections” contains the following proviso:

This Article shall not entitle a person to vote in an election if that person is in detention under the sentence of a court handed down for a criminal offence.

Second, rights would be made subject to responsibilities. Thus, clause 2(2) of the Bill says:

A court or tribunal determining a question which has arisen in connection with a UK right shall take into account all the facts and circumstances of the case, including the conduct of the person seeking to assert the UK right (including his adherence to the responsibilities set out in Article 23 of Schedule 1) and whether it is fair, equitable and in the interests of justice for such UK right to be applied in relation to the question at hand.

Third, the courts’ strong interpretative duty under section 3 of the HRA would be weakened. Thus clause 3 (which is very poorly drafted) says:

(1)  When reading and giving effect to legislation in light of the UK rights, the words and sentences of legislation must be construed in accordance with their ordinary and natural meaning.

(2) Where the meaning of legislation arrived at in accordance with subsection (1) is ambiguous, it may be presumed that a possible meaning that is compatible with the UK rights was intended, unless the contrary intention appears.

Clearly, this Bill is not going to be enacted, so it is hardly worth subjecting it to close scrutiny. But it is nevertheless significant – if only as a (depressing) reflection of the direction in which thinking about human rights is developing within certain parts of the political spectrum. If a Bill of this nature were enacted, then it would clearly (at least in some instances) fail to protect rights to the extent required by the legally binding obligations that the UK entered into under the ECHR. It seems, however, that the constraining force of that point is becoming weaker as the possibility of withdrawal from the ECHR – which once seemed inconceivable – creeps from the very margins of political debate into the mainstream. As I argue in my critique of the Report of the Bill of Rights Commission (some of whose members were in favour of withdrawal), it is imperative that those who favour the domestication of Convention rights – and who recognise that the notion of a “British” Bill of Rights contradicts the idea of universal human rights – begin to make their case as clearly and persuasively as possible.