Repealing the Human Rights Act: pulling on a thread of the constitution

Britain’s new Conservative government has launched its term by aiming to repeal the Human Rights Act, which was brought in by Labour in 1998 to bring the European Convention on Human Rights into domestic UK law. The Act has largely been a success, enabling the courts to take more account of Convention rights in the cases before them and reducing the number of cases being taken to the Strasbourg court. However, controversial decisions such as Strasbourg’s judgment in support of prisoners’ voting rights and the long-standing line in the right-wing press that the Act is a “criminals’ charter” has made the ECHR, once backed by Churchill and imprinted with British influence, something of a bête noire of the Tories.

So the Tory attack on the HRA isn’t a surprise – it was in their manifesto for this election, and it has long been a proclaimed goal of the party. In its place is supposed to be a “British Bill of Rights”, but it’s not clear what the difference will be. Already under the HRA, judges can only interpret laws so that they are in line with human rights, but they cannot overturn laws passed by the UK Parliament. If Parliament passes a law that breaches human rights, then all the courts can do is issue a declaration of incompatibility, referring the issue back to Parliament. This might seem odd to those from countries with constitutions that restrain the legislature from breaching people’s rights – and indeed, the devolved administrations in Scotland and Northern Ireland are prohibited from doing so and can have their Acts struck down by the courts – but the HRA is designed to preserve Parliamentary sovereignty. In addition, the UK courts only have to “take account” of the jurisprudence of the Strasbourg court, so making the European Court’s decisions less binding is not really the issue that some of the Act’s opponents make it out to be. And in the end, of course, the Strasbourg court is the court of final appeal on human rights matters in Europe. That’s simply a function of being a member of a court – that’s what it’s for – so fiddling with domestic law isn’t going to change that.

However, former judge Lord Bingham’s question of what rights people want to remove is just one of the challenges the Tory plan faces. It turns out that the Human Rights Act is linked at a fundamental level to the devolved institutions. It’s built into the local constitutions of Scotland and Northern Ireland and there is no desire for repeal there. Scotland’s representation in Westminster is now dominated by the fiercely anti-Tory Scottish Nationalist Party, which opposes repeal, and the Human Rights Act is intimately bound up in the Good Friday Agreement that brought an end to the Troubles in Northern Ireland. The Good Friday Agreement is not just the basis of Northern Ireland's peace process government, but a treaty between the UK and Ireland that has been deposited with the UN. Now the Irish government is finding that not only does it have to worry about a potential Brexit, but also the potential unravelling of peace in Northern Ireland.

A possible solution to this, repealing the HRA for England but leaving it in place in Scotland, Northern Ireland and Wales, but that immediately makes the exercise ridiculous. How can you have two sets of fundamental human rights across the same state? Are people deserving of more or fewer rights depending on what side of the border they’re on?

It’s hard to imagine anything more fundamental than the rights of people, and you would think that any changes would be a matter that should be made with cross-party consensus and put to the people in a referendum. But here it looks like a party political wheeze aimed at throwing red meat to the Conservative’s Euroskpetic backbenchers. Ironically, here too the government could run into difficulties as some Tory backbenchers may rebel over the plan to repeal. Normally it’s the Euroskeptics who rebel frequently and drag their party further to the right, but with a majority of just 12, it wouldn’t take many MPs to blow the government off course, and MPs like David Davis (who resigned and stood again in his constituency to highlight his opposition to the then Labour government’s terrorism legislation) could be a real headache for Cameron. The opposition is likely to almost completely united against repeal, so every Conservative vote counts.

Euroskeptic Conservatives may imagine that repealing the Human Rights Act is a great act of freeing the UK from European courts, but it will soon become apparent that repeal threatens to tear at the UK’s constitutional fabric.