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Expert Comment: Conservative Plan to Repeal the Human Rights Act

Liverpool Hope's Rectors Lawn Friday 3 October 2014

As the Conservative Party announces plans to repeal the 1998 Human Rights Act, John Sawyer, Co-ordinator of Undergraduate Studies on the University's new Law LLB course, looks at some of the implications of this proposal.

In his speech at the Conservative Party conference last week, the Prime Minister confirmed that the party’s 2015 election manifesto will include a commitment to repeal the Human Rights Act 1998 (HRA 1998) as a threat to the right of British Citizens to control their own laws and law standards and undertakes to replace it with a “British Bill of Rights”. Further we now have a scoping document which sets out their current thinking[1] and an undertaking to shortly publish a draft British Bill of Rights and Responsibilities for consultation.

The media have rightly picked up as newsworthy this pre-election pledge and the writer anticipates that a great deal of time energy, effort and space will be devoted to the debate, much of which, he fears, will be unreflective, incoherent and politicized.

Two matters arise: Is there a “law” case for changing the current regime? Has the Government considered the Scottish Question?

Why Change?

There has been in recent years a curious “volte face” in Conservative ranks in relation to the original favour they gave the act. It is worth bearing in mind that the Conservative Party voted to “Bring Rights Home” in the HRA 1998.  It should be recalled that prior to the date of its reception into UK Law on 1st October 2000, it was acknowledged and understood that the founding document - the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as it was then known - had been written in large part by British Judges[2] based upon English common law standards.

Did the earth move back in 2000? Well no not really! It is the writer’s recollection that the net product of a weekend conference he attended, held at the Adelphi Hotel here in Liverpool between the Bar and the Judiciary to discuss possible implications for the legal base of the new Act was that there would be “No Change . English courts were already applying these standards in their court processes and judgements. The only discernible change was that UK citizens would be able to seek the appropriate redress in domestic courts. So the writer asks what has changed in these last few years? Perhaps a justifiable answer is political expediency.

One of the fundamental points always overlooked in political debate is that the HRA 1998 does not (contrary to poor media reporting) override the principle of Parliamentary Sovereignty[3] as this principle is specifically preserved in the wording of the act. Under the principle of Parliamentary sovereignty, the legislature can continue to pass such laws as it sees fit, even to the extent of removing the rights of citizens. The HRA (1998) also makes it clear that European Court of Human Rights (ECtHR) judgments are not binding on British courts.  In fact there have been four cases since 2000 in which the British courts have declined to follow judgments of the ECtHR.

On one view the threat to civil and more importantly, minority interests in the UK remain as Parliament is legally able to pass the most draconian legislation in the name of the protection of the majority. Those with a sense of history will be only too aware of the gross breaches of ordinary rule of law standards enacted and implemented during the 1970s in Northern Ireland in the name of national security and again o one view there is nothing in the HRA 1998 to prevent such a future occurrence.

However there remains a more subtle worry and concern over the proposed repeal of the HRA 1998.

The Scotland Question.

There are genuine difficulties that devolution creates for the implementation of plans to reform human rights law. It might be thought that while the UK Parliament is free to repeal the HRA, this would not by itself end the domestic incorporation of the ECHR in the rest of the UK in general and in Scotland in particular.

At this moment the HRA 1998 appears to apply in Scotland in the same way as it does in England. Thus, public authorities in the devolved nations and  the devolved governments in general (and in Scotland in particular), are subject to the duty to comply with Convention rights in section 6 HRA, and devolved legislation is subject to the same interpretive duty as applies to UK Parliament legislation under section 3 HRA. However, the ECHR is incorporated directly into the devolution statutes[4]. Thus enactments which breach Convention rights in Scotland (unlike England) may be legally invalid.

It is also worth noting that upon repealing the Act, while people in Scotland would no longer bring Convention-based actions against UK government and other public authorities, nor argue for Convention-compatible interpretations of UK legislation, they would still be able to challenge primary or secondary legislation enacted by the devolved institutions or other acts of the devolved governments.

True, the UK Government could go further and withdraw from the ECHR entirely. This would require amendment of the devolution legislation as well and this in turn would trigger the requirement for the consent of the relevant legislature under the Sewel Convention[5]. There are good reasons to think that such consent would not be granted, at least by the Scottish Parliament and Northern Irish Assembly.  The writer notes that there has not been the same public hostility to human rights in general, or to the ECHR in particular, in the devolved nations as there has been in England. In fact during the referendum debate, the Scottish Government actually promised to extend constitutional protection of human rights in the event of independence.

As an alternative Westminster could, as a matter of law, enact a new UK-wide Bill of Rights to replace the HRA. In the writer’s view this does not solve the devolved powers and rights problem as a new Bill of Rights would also trigger the Sewel Convention.

Perhaps it would be wise for the Government to reflect more carefully on such matters. Not only upon the legal mud bath that it is pouring for itself but also for the intense provocation it may be to many (independent minded) Scottish jurists following the recent independence debate

[1] ,

[2] For example British MP and lawyer Sir David Maxwell-Fyfe the Chair of the Assembly's Committee on Legal and Administrative Questions, was one of its leading members and guided the drafting of the Convention.

[3] The sovereignty of parliament is the key principle of the British constitution. This means that parliament can alter any law and no judicial authority has the right to overrule its legislation.

The Human Rights Act adheres to the concept of parliamentary sovereignty as it is not possible for British courts to declare void any legislation where it breaches the Human Rights Act.  Instead, courts can make a declaration of incompatibility and Parliament can decide what action to take regarding this declaration.

This approach can be contrasted, for example, with the American constitution which allows judges to strike down laws found to breach the Bill of Rights.

[4] Under section 29(2)(d) Scotland Act 1998 (SA), Acts of the Scottish Parliament (ASPs) which are incompatible with Convention rights are “not law”

[5] Future changes to the legal base of the devolved Scottish Parliament  enacted by the Westminster Parliament require a “Legislative Consent Motion” – A Sewel Motion  named after Lord Sewel, then Parliamentary Under-Secretary of State for Scotland. Because Westminster Parliamentary Sovereignty is preserved within the Devolution Act he said that the UK Government "would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament".

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