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Bringing Rights Home (Again)?

03 October 2014
Today the Conservatives published a highly controversial paper (the "Paper") setting out the rationale for their proposals to replace the Human Rights Act 1998 ("HRA") with a new "British Bill of Rights and Responsibilities".  A draft Bill is promised in December.

The Paper outlines what are said to be fundamental changes, with potentially huge significance for the UK's relationship with Europe and the wider international community.  The plans have been described by some commentators as unworkable. Former Conservative Attorney General Dominic Grieve QC MP described the Paper as "factually inaccurate" and containing "howlers" while Shami Chakrabarti, Director of Liberty, stated: "This so-called British Bill of Rights would diminish everyone's freedoms and make Government even less accountable in the future." However, Michael Howard, former leader of the Conservative party, defended the proposals in the Telegraph stating: "[O]ur planned reform will introduce a democratic override not only of the European Court of Human Rights but also, crucially, of our own courts. It comes in two forms, and will be enshrined in law in our planned British Bill of Rights and Responsibilities."

In brief, the Paper proposes that the Bill would:

  • repeal the HRA;
  • incorporate the text of the European Convention on Human Rights (the "Convention") directly into primary legislation;
  • "clarify" the Convention rights – notably by introducing an idea that rights are to be balanced against responsibilities;
  • no longer require British courts to take account of Strasbourg jurisprudence;
  • give judgments of the European Court of Human Rights ("ECtHR") advisory status only as regards the UK Courts;
  • remove the section 3 HRA requirement to interpret legislation in accordance with Convention Rights; and
  • limit the use of human rights to the most "serious" cases, such as those involving criminal law and the liberty of an individual, the right to property "and similar serious matters."

The Paper suggests that these changes will mean that the ECtHR is "no longer binding over the UK Supreme Court" or "able to order a change in UK law". The Paper also envisages a narrower interpretation of fundamental rights and suggests that some rights may be restricted based on the extent to which a person has discharged their civic responsibilities.

There are obvious unanswered questions in relation to a number of the proposals. For example, there is no reference to the Good Friday Agreement which enshrined the rights of Northern Irish nationals to refer decisions to the ECtHR or any comment on the relevance of the Devolution Settlements with Scotland, Northern Ireland and Wales. The implications for membership of the EU and Council of Europe are also not resolved.  Fundamentally, it remains to be seen whether there will be genuine sea-change in the UK's human rights position or a modest re-presentation.

As is often said, the devil is in the detail, and the proposals are still relatively embryonic in nature. However, what is clear is that a Conservative Government wants to bring human rights home and keep them here to stay.

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