25th May 2015
The new Conservative government’s plan to repeal the Human Rights Act 1998 and enact a replacement, apparently within one hundred days of the general election, was never going to be easy.
Nonetheless the government still intends to make some announcement in this Wednesday’s Queen’s Speech.
This brief update post sets out some of the more recent developments.
To recap, there are seven hurdles to speedy repeal:
(1) the Good Friday Agreement expressly requires that the European Convention on Human Rights is enforceable in the jurisdiction of Northern Ireland, and so if the Human Rights Act is repealed it will need to be replaced immediately by another statute which has the same effect (the alternatives to this of (i) the UK breaching the GFA or (ii) the Republic of Ireland and the nationalists in Northern Ireland agreeing to remove this requirement are not feasible);
(2) it is arguable that repeal of the Human Rights Act requires the consent of all three of the devolved assemblies and is almost certain any replacement legislation will also need consent, and in Scotland at least it appears the Scottish Government will recommend consent not be given;
(3) the Conservatives in the house of commons only have a majority of twelve, and there are Conservative MPs opposed to repeal;
(4) the Conservatives in the house of lords do not have a majority at all and even if the “Salisbury Convention” is invoked against lords’ delay, the “one hundred day” ambition was not a manifesto commitment – and it may well be that the lords do not accept the Salisbury Convention applies at all;
(5) the Conservatives need to set out which substantive rights will be protected in the new legislation and how these will differ, if at all, from the convention rights under the ECHR;
(6) the Conservatives need to come up with a draft of the replacement legislation, which they still have not done (this has been promised for a long time); and
(7) the Conservatives need to explain why any of this entire exercise is necessary in the first place, especially as there appears to be no problem with the Human Rights Act which can only be cured by its repeal.
Some of these hurdles have got higher in the last week or so.
In respect of Good Friday Agreement hurdle, the Irish Times has reported that the Republic of Ireland government is concerned about the UK plan to scrap Human Rights Act.
In respect of the devolution hurdle, the Scottish first minister has now stated the Scottish government’s firm opposition to repeal.
[ADD, the Welsh Government oppose repeal too – thanks to Aled’s comment below for this.]
In respect of the house of lords’ hurdle, the Labour front bench have stated that they do not accept that the Salisbury Convention applies.
In addition to these, the government is reported as still being no nearer finalisng a replacement Bill, as according to the Guardian there has been seven drafts to date of the Bill, and it still is not in final form.
One Conservative politician, Dan Hannan MEP has put forward a critique of the Human Rights Act, to which Matthew Scott has provided a (in my view) brilliant and deft response. Both should be read so to gain a flavour of the debate.
One may think that risking a crisis over the Good Friday Agreement, creating tension with the devolved administrations, providing a new rallying cause for the SNP, prompting an immediate backbench revolt when you have a wafer-thin commons majority, and setting up a clash with the house of lords – and to do all this in “one hundred days” – is a rather odd thing to do in the name of a “common sense” reform – especially when the government has no clear idea about what will replace the Human Rights Act.
But then again, many stupid things are done by those convinced they have “common sense” on their side.
None of the above means that repeal of the Human Rights Act, and its replacement with “a British Bill of Rights”, in one hundred days, is (literally) impossible. The ministers responsible, Gove and Raab, are clever and ambitious, and it appears the prime minister is determined. And who knows what clever wheeze will be presented in Wednesday’s Queen’s Speech.
However, repeal of the Human Rights Act, and its replacement with “a British Bill of Rights”, in one hundred days, is looking more unlikely than before.
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