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Dismantling the HRA: No method in the madness

Plans to scrap the Human Rights Act (HRA) and replace it with a British Bill of Rights and Responsibilities have sparked intense debate. When first mooted in October 2014, the plans were criticised by former attorney general Dominic Grieve for containing several legal ‘howlers’. There is still no draft Bill and little detail on what will replace the HRA.

Formal link

It is very unclear how the pledge to ‘break the formal link between the British courts and the European Court of Human Rights’ will be achieved. The proposals seek to clarify that UK courts are not obliged to follow Strasbourg jurisprudence. This is a nuanced change as section 2 HRA already provides that domestic courts only need to take it into account.

The policy paper goes further, proposing the UK should only be bound by Strasbourg rulings if parliament votes to accept them. This has consequences far beyond UK domestic law.

As a signatory to the European Convention on Human Rights (ECHR), the UK is bound by it in international law. The proposal for Strasbourg judgments to be binding only when voted through by parliament is a clear breach of the convention. Parliament instead of the UK Supreme Court would be the ultimate domestic arbiter of human rights matters, raising major concerns about increased state interference with the law.

From a practical perspective, the government’s plans will not have an easy path. The intention is to secure recognition from the Council of Europe that the proposal is a legitimate way of implementing the convention. In effect it requires the council to agree to an opt-out from the court’s jurisdiction.

The UK is a signatory to protocol 11 of the convention and after signing the protocol and agreeing to be bound by the court, there is limited scope to argue that a state can stay a contracting party to the ECHR without submitting to the court’s jurisdiction.

The government will struggle to formulate a law which marks a commitment to the ECHR while simultaneously freeing Britain from certain commitments. It is indicated that the Bill of Rights will include the text of the convention but will also ‘clarify the convention rights, to reflect a proper balance between rights and responsibilities’.

Human rights arguments will be limited to the ‘most serious cases’, and some people will be prevented from claiming ‘qualified rights’ if they are deemed not to have fulfilled ‘their responsibilities in society’. The scope of rights protection will therefore be narrower than those under the ECHR: such a Bill would not represent full commitment to the convention principles.

Negotiating an opt-out from the court while remaining a signatory to the ECHR may be unacceptable to the Council of Europe. It would make the entire regime toothless, setting a precedent that member states can pick and choose the judgments to abide by. Indications are that other countries such as Russia could press for similar concessions if the UK proposals are accepted.

Domestic complications

Withdrawal would bring considerable domestic complications. Devolution settlements require those administrations to abide by convention rights, while the Good Friday agreement requires the UK government to incorporate the ECHR into Northern Ireland law. Withdrawal could cause irreparable fractures at a time the future of the Union is uncertain.

Membership of the EU could also be affected as it is a pre-requisite of joining the EU to be a signatory to the ECHR. Even if Britain were permitted to remain, the EU’s accession to the ECHR and the application of the EU Charter (which largely reflects the convention rights) would mean that those rights would still apply in the UK in certain scenarios. Given the Bill of Rights will most likely offer less protection in domestic law, we would in effect have different tiers of rights in separate spheres of law.

As yet, there is little detail in the government’s plans, but the effects of the mooted proposals would be felt far and wide. The weakening of human rights protection across the continent and the fracturing of relationships with Europe and between the home nations are heavy prices to pay for reforms of such questionable benefit.

This article first appeared in Solicitors Journal.