On Wednesday 7th June 2017, a day before the election, Theresa May announced her intention to “rip up human rights laws”. It was largely announced in line with the fight against terrorism, although repealing the Human Rights Act 1998 has long been on the government’s agenda.
So does the general election result spell the end of the Human Rights Act 1998?
Steering clear of the election result itself and whether or not the government will have the power or mandate to repeal the act, what is the alternative?
The Conservative government, namely under Iain Duncan-Smith and later David Cameron, have long favoured a repeal of the act. The plan is to replace the act with a “British Bill of Rights”. The position has always been that the Human Rights Act 1998 in some way prohibits the government from protecting security and freedom.
No draft of the British Bill of Rights has made an appearance and it is clear that a lengthy consultation period will be embarked upon before its potential introduction. The Conservative pledge, in their 2015 manifesto, was to “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 implications of repealing the Human Rights Act 1998 has not yet been addressed and is likely to prove problematic.
As noted above, it is again back on the Conservative government’s agenda.
Breaking the link?
The new British Bill of Rights will no doubt, if it is drafted, seek to break the link between UK courts and Strasbourg. At present, in seeking to interpret Convention rights under the Human Rights Act, the domestic judiciary must merely “take into account” any relevant Strasbourg jurisprudence, under s.2; clearly with the intention that such jurisprudence would not be viewed as binding.
The problem for the government seems to stem from the decision in Ullah (2004) UKHL 26, in which the “mirror principle” was establish – effectively suggesting that domestic courts should “mirror” the Strasbourg Court’s jurisprudence in Human Rights judgements. This has been the dominant approach until fairly recently.
The Commission on a Bill of Rights (set up by the previous coalition) noted that there was a substantial body of opinion that wanted to enable it to be made clearer that Courts were free to depart from Strasbourg under s.2 Human Rights Act 1998. This body of opinion has again reared its head by Theresa May.
Withdrawal from the ECHR?
Any new British Bill of Rights would not, in itself, be able to address fully the key objective or the government’s leadership, without the prospect of withdrawal from the convention, which is to break the link between Strasbourg and the UK, by making the judgements “advisory only”. The UK is bound under Article 46 of the convention to respond to adverse judgements of the court against itself; it is hard to see that it could remain within the Convention system if it openly refused to respond.
Rights to be protected in the British Bill of Rights
Prior to the 2017 election, the general discussion has been not to diminish the impact of the Strasbourg Courts but to “put the text of the original Human Rights Convention into primary legislation”.
So it would seem, that the aims expressed by the previous government were to weaken ties with Strasbourg via the British Bill of Rights, but that the link would not be weakened via changes to the listed rights. It is not clear whether Theresa May and her government intend to adopt the same approached, although the suggestion that it would be “ripped up”, suggests that a more hard-line approach to repealing the act is inevitable.
That said, the result of the election is likely to weaken the original intention of the government and it may, fall more in line with the intention of the previous Conservative governments before her.
If the government continue with their intention to “repeal” rather than “rip up” the Human Rights Act 1998, then the likelihood is that the government will merely seek to “put the text of the original Human Rights Convention into primary legislation”. In other words, those rights that are protected by the Human Rights Act 1998 will simply become enshrined in UK legislation and as such, individuals will continue to enjoy the protection of those rights that are currently protected via the HRA 1998.
Irrespective of what approach the government take, much of our common law has been interwoven with a number of aspects of the convention over the last few years. Lord Toulson gave an interesting speech last year at the PLP Judicial Review conference in London referring to the fact that the Human Rights Act 1998 in its most basic forms protects things that common law has recognised e.g. right to privacy, unlawful detention.
Even if the Human Rights Act 1998 is abolished, the rights may continue in our domestic common law.
At this present time, it is not clear whether Theresa May intends to follow up on her comment to “rip up” the Human Rights Act, or whether, following the election that suggestion is watered down. What I do think, is that it is inevitable under this Government that the Human Rights Act 1998 will be repealed and replaced by a British Bill of Rights.
The Human Rights Act 1998 faces a problem in terms of its image. It is perceived as a European instrument, as something imposed from outside, and as associated with the EU and over-regulation. A British Bill of Rights, in the manner that has previously been suggested by David Cameron’s government, could fulfil the role played by the Human Rights Act 1998 and could be based on it and on the European Convention, but could be presented to the British public as an instrument based more firmly on core British values.
If the Human Rights Act 1998 is repealed, then, as I have mentioned, Human Rights may still be protected by a range of means. The fact is that the common law position recognises much of those rights that are protected by the Human Rights Act 1998. However, I would stress that ensuring the Human Rights Act 1998 is protected, or those rights as set out in the convention, is imperative to those individuals in the UK who are unfortunate to suffer at the hands of a public body. The rhetoric from this current government is concerning, although I am hopeful that, if the Human Rights Act 1998 is going to be repealed, that the election result will water down the approach.
The Human Rights Act 1998, in my opinion, has ensured accountability. For years, the Human Rights Act 1998 has been under threat from being repealed and replaced with a British Bill of Rights and in recent months, even our membership of the European Convention on Human Rights has been in question.
This would weaken the rights of everyone, meaning less protection against powerful interests. Can we really trust the government to decide when our freedoms should apply?
In my opinion, the British Bill of Rights, in the form suggested by David Cameron’s government, is unlikely to change much of the law and is simply a mechanism to appease voters who believe the Human Rights Act 1998 is an over-regulation from the EU. Having said that, the use of the word “unlikely” is concerning as it is absolutely crucial to the individuals of this country that the Human Rights Act 1998 remains in its current form. It has done remarkable things for individuals of this country and provided a platform to challenge the accountability of this country.