Law, Rights and Constitutional Politics: reflections on the Human Rights Act’s past and future

I have just finished work on a chapter for a collection of essays – Democracy in Britain: Essays in Honour of James Cornford – which will shortly be published by the Institute for Public Policy Research. In my chapter, “Law, Rights and Constitutional Politics”, I reflect on the ongoing debate concerning the protection of human rights in the UK. I attempt to situate that debate within its legal and political context by examining the underlying reasons that might explain why the Act has been the source of so much controversy. Against that background, I assess how the debate is likely to play out over the coming years. I outline the main options for reform, and explain that the possibilities open to lawmakers will vary significantly depending upon whether the UK remains a party to the European Convention on Human Rights or (as some senior Conservatives now openly contemplate) withdraws from it. However, I go on to suggest that those who suppose that ECHR withdrawal would constitute (from the perspective of human-rights sceptics) some sort of panacea may be mistaken, and argue that the common-law doctrine of constitutional rights means that ECHR withdrawal would not necessarily yield a legal blank canvas.

The chapter is written in a relatively non-technical way; although it will, I hope, be of interest to lawyers, it is also intended to be accessible to a non-specialist readership. I have uploaded a draft of the chapter to SSRN: it can be downloaded via this link. A PDF of the draft chapter can also be viewed below.

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