The Seven Hurdles for Repeal of the Human Rights Act

The new Conservative government wants to repeal the Human Right Act 1998 (the “Act”) and replace with a “British Bill of Rights”.

The intention appears to be to do this in “one hundred days”.

This post sets out as seven distinct “hurdles” the various legal and political difficulties which the new Conservative government will have to address in doing this.  Each “hurdle” has the appropriate links to relevant materials and news reports.

In essence, the “hurdles” are: (1) addressing the issue of Scottish Devolution; (2) addressing the issue of repeal impacting on the Good Friday Agreement; (3) dealing with Conservative supporters of the Act and the European Convention of Human Rights (ECHR); (4) getting repeal and a replacement “British Bill of Rights” through the House of Lords; (5) working out which rights are to be protected; (6) working out how those rights will be enforced and the legal form of the “British Bill of Rights”; and (7) explaining why any of this exercise is necessary in the first place.

Background – the Human Rights Act 1998

The Human Rights Act – it is worth taking a few minutes to read it.  (Many of those who criticise it, and some who support it, seem to not know what it says.)

It is brief as statutes go, and is actually shorter than much of the commentary which is linked to below.

Schedule 1 to the Act contains the relevant Articles of the ECHR.  These rights are called the “convention rights”.  As the convention rights are in a schedule, they only have legal effect via the substantive sections of the Act: the convention rights are not free-standing.

The key substantive sections of the Act, which allow the convention rights to be enforced in UK courts, are Section 3 (statutory interpretation), Section 6 (duties of public authorities – including courts), and Section 2 (which provides court “must take into account” – though not necessarily follow – the case law of the European Court of Human Rights).

Background – the Conservative Manifesto

The commitment to repeal the Act and to replace it with a “British Bill of Rights” is in 2015 Conservative Manifesto.

The manifesto contains the following statements:

We will…scrap the Human Rights Act and curtail the role of the European Court of Human Rights, so that foreign criminals can be more easily deported from Britain. […]

The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. […]

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 desire to repeal the Act in “one hundred days” is not in the manifesto.  It appears to come from an article on 26 April 2015 by David Cameron for the Telegraph.  On 10 May 2015, after the election result, this ambition was repeated in a number of news outlets.  The Guardian said:

The scrapping of the human rights act, a pledge included in the Tory manifesto, is one of the measures to be included in the prime minister’s plans for the first 100 days, when the Queen’s speech is delivered on 27 May.

The plans, which would see the human rights act replaced by a British bill of rights, say that the European court of human rights would be “no longer binding over the UK’s supreme court”. The ECHR would also be “no longer able to order a change to UK law” although British citizens would still be entitled to appeal to the Strasbourg-based court.

It is not clear whether the “one hundred days” is from the general election or the Queen’s Speech (expected on 27 May 2015); and it is not clear whether the “one hundred days” is for complete repeal and enactment of a replacement, or for the draft legislation to be published and presented.

But it seems something dramatic is supposed to take place which will affect the Act.

Hurdle One: Scotland

The first “hurdle” is that provided by Scottish devolution.  Here there is both a constitutional and a political dimension.

The “constitutional” question is whether repeal (and the replacement “British Bill of Rights”) can be imposed “constitutionally” on a post-devolution Scotland.  By “constitutional” it is meant whether the process will be in accordance with the (non-legal) conventions which apply to the relationships between state entities – things can be “unconstitutional” without it being illegal.

The second question is whether, regardless of the strict constitutional position, as a matter of practical politics the Scottish Government (and the SNP in the house of commons) will seek to block repeal anyway, at least to the extent it may affect Scotland.

Constitutional materials

The Sewel Convention is the convention (ie, not binding law) limiting what the Westminster Parliament can impose on Scotland without the consent of the Scottish Parliament.

Also relevant is the Memorandum of Understanding between the UK and the devolved administrations, paragraph 14 of which provides:

The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.

[Add, 16 May 2015: I have been asked to emphasise that the paragraph above and indeed the Memorandum of Understanding applies also to the devolved assemblies in Wales and Northern Ireland – and in the latter, this is in addition to the points made in Hurdle Two below.]

The Scottish Government has issued a statement (October 2014) that it would oppose repeal.  This statement includes the following text:

The Scottish Government is strongly opposed to any attempt by a future UK Government to repeal the Human Rights Act or to withdraw from the European Convention on Human Rights. To do so would require the consent of the Scottish Parliament and, given our longstanding opposition, we would invite the Scottish Parliament to refuse this.

Constitutional commentary

These articles, by constitutional and legal experts, set out the relevant issues.

(Pre-election)

Will devolution scupper Conservative plans for a “British” Bill of Rights? by Professor Aileen McHarg

Devolution: Grayling’s human rights petard by “Lallands Peat Worrier” (a highly regarded Scots law blogger

Human Rights, Devolution and the Constrained Authority of the Westminster Parliament by Colm O’Cinneide

(Post-election)

Echo Chamber: the 2015 General Election at Holyrood – a word on Sewel by Chris McCorkindale

Scotland and Human Rights Act abolition… by “Lallands Peat Worrier”

Could the devolved nations block repeal of the Human Rights Act and the enactment of a new Bill of Rights? by Dr Mark Elliott

[Add, 16 May 2015: Human Rights Act Repeal and Devolution: Quick Points and Further Resources on Scotland and Northern Ireland, by Professor Christine Bell]

Political developments

The following seem to be the key political developments so far in respect of Hurdle One.

The Scottish justice minister on Twitter:

The Scottish Government will robustly oppose any attempt by the UK Government to repeal the Human Rights Act or to withdraw from the ECHR.

— Michael Matheson MSP (@MathesonMichael) May 12, 2015

YouTube video (12 May 2015) of the Scottish First Minister saying she will oppose repeal.

The Leader of the Scottish Conservatives on the need for the Scottish Parliament to consent to repeal:

I wonder if any of this eve’s avid tweeters bothered to read @ScotTories manifesto. P.65 states Holyrood has final say on any rights change.

— Ruth Davidson (@RuthDavidsonMSP) May 12, 2015

Guardian (12 May 2015): Scotland ‘will not consent’ to Tory plans to scrap Human Rights Act

SNP statement (14 May 2015) that it will oppose repeal.

Hurdle Two: Northern Ireland

The primary issue in respect of Northern Ireland is whether repeal of the Act would need re-visiting the Good Friday Agreement (GFA), which explicitly requires that the ECHR be given legal effect in the jurisdiction.

The GFA states:

The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.

The Act was the means by which the UK government performed this obligation under the GFA.  If the Act is repealed then something just as effective in respect of breaches of the ECHR will need to be immediately put in its place.

And whist the DUP are no great fans of the ECHR, the nationalists certainly are. (The UK government knows this: for example, search for “human rights” in this 2000 pamphlet by Michael Gove, who as the new Justice Secretary is responsible for the proposed repeal.)  It is also hard to see how nationalists will accept any replacement called a “British Bill of Rights”.

[Add, 16 May 2015: Human Rights Act Repeal and Devolution: Quick Points and Further Resources on Scotland and Northern Ireland, by Professor Christine Bell]

Political developments

The following seem to be the key political developments so far in respect of Hurdle Two.

Committee for the Administration of Justice (11 May 2015): Tory plan to repeal Human Rights Act in NI would constitute flagrant breach of GFA

Guardian (12 May 2015): Scrapping Human Rights Act ‘would breach Good Friday agreement’

Irish Times (14 May 2015): Government concern about UK plan to scrap Human Rights Act

Hurdle Three: the Conservative supporters of the Act and the ECHR

There are Conservatives, including many MPs and peers, in favour of the ECHR and the Act.

After all, the ECHR was co-written by Conservative lawyers following the Second World War (and it is a pity that Conservatives are not as proud of this as, say, the Labour Party is of creating the NHS).

As Winston Churchill himself said in his Hague Speech of 1948:

In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law.

To repeal the Act and replace it with a “British Bill of Rights” the government will need to either win-over or defeat its own back-benchers who are in favour of the Act.

Two of the best things to read by Tories in favour of the Act are:

The Conservative Case for the Human Rights Act by Jesse Norman MP and Peter Oborne

Human Rights Act: Why the Conservatives are wrong by former Attorney-General Dominic Grieve QC MP

And it does not look as if the government has yet won-over its backbenchers.

Independent (14 May 2015): Cameron faces Tory backbench rebellion over plans to scrap the Human Rights Act

[Add, 16 May 2015: David Davis shaping up to oppose government.]

Hurdle Four: the House of Lords

Even if the government addresses the issues presented by Scottish devolution and the GFA, and survives any backbench rebellion in the house of commons, it has to get repeal and its replacement through the house of lords.  (And since the end of the coalition, the Conservatives do not have a majority in the house of lords.)

In forcing through repeal, the government will seek to rely on the Salisbury Convention that manifesto commitments are not blocked or unduly delayed by the house of lords.

This post by a leading public law experts sets out the relevant issues and queries whether the Salisbury Convention will apply: Replacing the Human Rights Act: the House of Lords, the Parliament Acts and the Salisbury Convention by Dr Mark Elliott.

Even if the Salisbury Convention does apply, there is certainly no way the house of lords (which has many former judges and legal experts) can be rushed into passing a repeal and its replacement in “one hundred days”: that ambitious timetable was not a manifesto commitment.

Hurdle Five: Which substantive rights?

And if all the procedural hurdles are somehow negotiated safely, there remains the question of what rights will be protected.

On the background to the convention rights, the best thing to read is the late Lord Bingham’s classic 2009 lecture on the ECHR – as he pointedly asks, which of these rights would you want to discard?

The UK government is (currently) not proposing for the UK to withdraw from the ECHR (a move which would place the UK alongside Belarus).  So it would appear the government is going to all this trouble to just place convention rights on a different footing.

Hurdle Six: what would a replacement “British Bill of Rights” actually say?

This is a genuinely knotty problem for the government, especially if the substantive (convention) rights remain unchanged.  It is difficult to see in practice how the current provisions of the Act can be significantly improved upon.

In 2012, a “Bill of Rights Commission” was appointed by the then coalition government to try to solve the problem of what a replacement would look like. Eventually it was disbanded having achieved no consensus.  As one member of the commission, Phillipe Sands QC, said of the government’s current “one hundred days” target, “eight of us couldn’t find a way in 700 days”.

Equally a failure was the Tory announcement last October that a replacement Bill would be provided “shortly”.  This failure to produce a draft Bill has been deftly analysed by Joshua Rozenberg.

It is one thing to announce there will be a replacement “British Bill of Rights” and it is another to provide an actual draft of it.  It is difficult to see how one can be produced and placed into law in just “one hundred days”.

[Add, 16 May 2015: according to the Guardian there has been seven drafts to date of the Bill, and it still is not in final form.]

Hurdle Seven: the test of necessity

And then there is the ultimate question: what is the point of the repeal and replacement?  What will the exercise actually achieve, which cannot be achieved by other means?

Here it is important to note that the human rights rulings which have upset many Conservatives and tabloids have been addressed by other means – in particular on “life meaning life” and the rights of prisoners to vote.  On this see Carl Gardner’s detailed account of how the former Attorney-General Dominic Grieve’s policy of constructive engagement ensured that these problems were resolved.  This is how nuts are smashed without sledgehammers.

More generally, many of the “but what about?” examples of supposed human rights abuses turn out to be myths or to be caused by the application of domestic or EU law.

It is difficult, if not impossible, to posit a case where the only legislative response is repeal of the Act and its replacement by a (unspecified) “British Bill of Rights”.

This is not to say that the Act cannot be amended and improved; but that is not repeal.

So the current situation is: if the UK government can address the immense problems presented by Scottish devolution and the Good Friday Agreement, win-over or defeat Conservative supporters of the Act, shove the legislation through the house of lords, work out which rights are to be protected, somehow come up with a draft Bill of British Rights, and also explain why any of this is really necessary, and can do all this (or to do something dramatic) in “one hundred days” then…the Conservatives can meet their manifesto commitment in accordance with their ambitious timetable.

But it seems unlikely.

Further reading

On problems of repeal generally:

Matthew Scott in the Telegraph: Michael Gove’s attempt to repeal the Human Rights Act faces almost insurmountable odds

Economist: There may be trouble ahead: Getting rid of the Human Rights Act will be tough—and almost pointless

Phillipe Sands QC in the Guardian: This British bill of rights could end the UK

Comments moderation

Comments are pre-moderated.  Please use a name if you can when posting a comment.  Suggestions for additional links welcome.

Leave a Comment