9780199665181_450This post is the last in a series of six updates for the 2015-16 academic year. The posts in this series are co-written by Mark Elliott and Robert Thomas, the authors of Public Law, published by Oxford University Press. Further information about Public Law can be found here. Our focus in these updates is on six key areas in which the constitution is undergoing, or is likely to undergo, change. We have taken as our reference point the outcome of the 2015 general election, and its likely implications for the future of the British constitution. In this final post in the series, we examine the Government’s proposals (such as they are at present) to repeal the Human Rights Act 1998 and replace it with a British Bill of Rights.  

The Conservative Party has never been particularly keen on the Human Rights Act 1998 (HRA). In its 2010 election manifesto it undertook to “replace the Human Rights Act with a UK Bill of Rights”. Similarly, the Party’s 2015 manifesto said that:

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 manifesto went on to spell out the Party’s proposals in more detail:

We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK. The Bill will remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights. It will protect basic rights, like the right to a fair trial, and the right to life, which are an essential part of a modern democratic society. But it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society. Among other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.

These commitments were made against the background of an ostensibly more radical set of proposals set out by the Conservative Party in a policy paper published in 2014. Those proposals went as far as to indicate that a future Conservative Government would contemplate withdrawal from the European Convention on Human Rights (ECHR) if the Council of Europe — the international body under whose auspices the Convention exists — were to judge that the Conservatives’ position was incompatible with continued membership of the Convention system. Although no mention of this possibility was made in the manifesto, Lord Faulks, a Minister of State in the Ministry of Justice, said in April 2015, during the election campaign, that withdrawal from the ECHR remained a possibility. More recently, the Justice Secretary, Michael Gove, told the House of Commons Justice Committee that while it was his “hope” that the UK would remain a party to the Convention, he “could not give a one-hundred per cent guarantee” that it would.

More recently still, Dominic Raab, the Minister for Human Rights, answering questions in the House of Commons, said that proposals for replacing the HRA with a Bill of Rights would be published in autumn 2015, and that the proposals would seek to address a range of perceived needs and problems, including:

  • giving “greater authority for the Supreme Court”, avoiding its being “subordinated” to Strasbourg;
  • preventing rights from being “distorted by judicial legislation”;
  • preventing rights from being “abused” by “serious and serial criminals”;
  • and ensuring “proper respect” for the democratic role of Parliament.

Raab’s responses to MPs’ questions reveal a familiar — and familiarly inchoate — analysis, albeit one that might signal some stepping back from the position adopted by the Conservatives in their 2014 paper. In particular, it appears that three interlocking sets of concerns continue to animate Conservative thinking in this area.

First, there is concern about the so-called “abuse” of rights by claimants who are perceived to be undeserving, the standard example being the foreign criminal who, upon release from prison, attempts to resist deportation on human-rights grounds. The notion of an undeserving human-rights claimant sits uncomfortably with the orthodox view of human rights which holds that such rights are entitlements that accrue as part of the human condition, rather than being contingent upon good behaviour or moral rectitude.

The undeserving-claimant argument feeds into a second set of concerns relating to judicial “mission creep”, the contention here being that courts have taken a perfectly sensible human-rights text and interpreted it beyond recognition so as to facilitate (among other things) the success undeserving claimants. That second set of concerns reflects underlying unease about the institutional relationship between courts  and politicians, the argument being that unelected judges should not invoke human-rights law in order to make decisions about matters — such as the balance between the public’s interest in being protected against the threat posed by deportation-resisting foreign criminals and foreign criminals’ interest in pursuing an established family life in the UK — that are (on this analysis) political value-judgements.

Third, Raab’s responses reveal a set of concerns that sit, to some extent, in tension with the second. He suggests — in line with former Justice Secretary Chris Grayling, who professedly wanted “our Supreme Court to be supreme again” — that the UK Supreme Court’s authority should be extended (implicitly) at the expense of the European Court of Human Rights in Strasbourg. This aspect of the Government’s position suggests that the objection is not so much to human-rights adjudication by judges per se, but to human-rights adjudication by European judges. It is not clear, however, how this aspect of the Government’s stance relates to the second set of concerns, which reflect a more general unease about the balance between political authority and the authority of courts per se (as distinct from the authority of a specifically “foreign” court).

Because the government’s public position is so inchoate at present, it is difficult to know how likely it is that these proposals (such as they are) will be implemented and, if they are, what consequences are likely to ensue. Indeed, given that human-rights reform did not feature at all in any of the major speeches at the 2015 Conservative Party conference, it is not clear whether — and, if so, to what extent — this issue has been placed on the backburner by Justice Secretary Michael Gove. In any event, it is worth noting that pre-election indications that HRA repeal would occur very soon after the election have given way to a more measured position on the part of the Government (not least because of indications of unease among some sections of the Conservative parliamentary party).

It now appears that when (or if) proposals are published this autumn, this will be the beginning of a consultation process; no firm timetable has been laid down for the repeal of the HRA or the enactment of replacement legislation. Meanwhile, it is worth noting that the political difficulties involved in implementing this strategy are not likely to be confined to the Conservative backbenches. The House of Lords may well prove an obstacle, while the resistance of the devolved administrations to HRA repeal could well be an insuperable stumbling block. Indeed, it would involve no exaggeration to say that the Government is likely to find out that, the doctrine of parliamentary sovereignty notwithstanding, the HRA may well turn out to be a more entrenched feature of our (political) constitutional landscape than has hitherto been supposed by those who have advocated getting rid of it.