Wednesday, 13 May 2015

Human Rights ~ Battle lines are forming

The new Conservative government is committed to repeal of the Human Rights Act 1998 and also to the introduction of a British Bill of Rights.  I looked at this last Sunday (here) and noted:

 "Scrapping" the HRA is a Conservative manifesto commitment - see previous post.  A further commitment is a British Bill of Rights (BBR).  At the time of writing we have not seen the Bill that will repeal the HRA and we have not seen even a draft of the proposed Bill of Rights (BBR).  All of these ought to be the subject of extensive examination and consultation.  They must not be rushed through in the first 100 days as the new government hits the ground running!  If the BBR is to apply across the whole of the UK then clearly it will have to be acceptable to the people of all parts of the UK (England, Wales, Scotland, Northern Ireland).  Whether it will be so acceptable remains to be seen ... "

It will probably be after the Queen's Speech
(27th May) that the government's full plans are revealed.  What will the BBR actually contain?  How enforceable in law will the BBR actually be?  Will the UK / Strasbourg relationship change in any way bearing in mind that the Conservative Party manifesto talked about breaking the formal link between British courts and the European court of human rights.  These, and many other questions, will then be answered - (hopefully)!  Early publication may allay some of the present concerns.  Martin Howe QC (a member of the Commission on a Bill of Rights) has pressed for early publication - The Guardian 11th May .  

Repeal of HRA unacceptable to devolved governments?:

The indications so far are that repeal of the Human Rights Act will NOT be acceptable to Scotland or to Northern Ireland.  Battle lines are forming! 


Here is a selection of the media coverage relating to Scotland:

BBC News - Governments in Human Rights Act row

BBC News - Can MSPs block human rights reform?

The Independent -The Scottish Government will try to stop the Tories repealing the Human Rights Act in Scotland

The Guardian - Scotland 'will not consent' to Tory plans to scrap Human Rights Act

Northern Ireland

Here is some of the coverage relating to Northern Ireland:

The Guardian - Scrapping Human Rights Act would breach the Good Friday Agreement

Belfast Telegraph - Rights law row 'hits peace deal'

None of this augers well for the UK government's plans to impose a repeal of the Human Rights Act and a British Bill of Rights across the entire UK.  Certainly in Northern Ireland, incorporation of human rights was a key element in the Good Friday Agreement which has led to the somewhat fragile peace of today.The Agreement stated:  'The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.' Further, the creation of a strong Human Rights Commission for Northern Ireland was an important element in the Northern Ireland Act 1998.

Rights Northern Ireland - Post by Professor Christine Bell - Human Rights Act repeal and devolution: Quick points and further resources on Scotland and Northern Ireland


For some views expressed by the First Minister of Wales see - Election 2015: Human Rights Act 'banana republic' warning

At the Ministry of Justice:

The Ministerial team at the Ministry of Justice now includes Mr Dominic Raab MP - see his wikipedia entry and his blog.  He wrote a book entitled - "The Assault on Liberty - What went wrong with rights."  Raab has certainly not been an uncritical admirer of either the Convention or the European Court of Human Rights - see, for example, The Strasbourg Court is still a crank's paradise and also Civitas - Strasbourg in the Dock: Prisoner Voting, Human Rights and the case for democracy  (pdf 62 pages).

For an excellent article supportive of the Human Rights Act please see Jonathan Cooper in Huffington Post - The Human Rights Act: Repeal at our peril   Cooper's article is particularly good on the point that the protection of human rights given by the HRA has undoubtedly improved the lot of minorities:

'Children have been the biggest winners, their lives having been transformed on every level by the HRA. Victims of crime and sex offences in particular have also been significant beneficiaries of the HRA. And the other identifiable group whose lives have been altered beyond recognition has been the gay and lesbian community. Before we had no privacy and protest rights. We do now. Had the HRA been in force at the time of Hillsborough we would have been spared that agony. The right to life and the obligation to investigate loss of life would have forced the authorities to address all the issues at the time. Peace in Northern Ireland relies upon the HRA applying to everyone involved. Devolution is under-pinned by the HRA. The HRA is critical in keeping the UK together.'

Where might it go from here?

I suppose that, as a matter of strict law (Parliamentary Sovereignty), the government could push through repeal of the HRA across the entire UK and impose a British Bill of Rights.  There are some tricky questions of constitutional practice involved here such as whether or not "consent" is required from Scotland ('the Sewell Convention').  Those issues are not examined further in this post - but see, for instance here.  The wisdom of pushing through legislation against such serious opposition has to be questionable because a major constitutional crisis could be triggered.  Perhaps, as some have suggested on Twitter, the Conservative government does not care anymore about loss of Scotland from where they only have one MP.  However, the Prime Minister's rhetoric has been to the contrary and he has promised further devolution of power to Scotland.

Could the Conservatives simply take the easy road and impose it on England or maybe England and Wales.  The legal answer has to be that they could but that could result in the unsatisfactory situation of British citizens having varying degrees of rights protection dependent on where they live within the UK.  That could lead to considerable legal difficulty and feed further political discontent.

Further reading:

Keir Starmer - 13th May - The arguments against the Human Rights Act are coming.  They will all be false.

Jack of Kent 11th May - Round up: 5 posts on the constitutional problems with Human Rights Act repeal.

The 2015 General Election at Holyrood - a word on Sewel 

Public Law for Everyone - Could the devolved nations block repeal of the Human Rights Act and the enactment of a new Bill of Rights?- 'At a time when no exaggeration is involved in saying that the Union hangs by a thread, it would be a foolish Prime Minister who cast aside a convention that institutionalises respect for devolved autonomy in order to implement the proposed human-rights changes. All of which suggests that, for all that the Human Rights Act is not legally entrenched, it may be far more deeply politically entrenched within our multi-layered constitutional order than the UK Government has so far appreciated.'

Of Interest to Lawyers - Things to worry about - 10th May


  1. And what will happen if/when people the government wish to deport flee to Scotland? I can see it trying to extradite people from Scotland while they resist using the HRA.

    1. Indeed - there will be many such problems thrown up if there are varying degrees of rights protection across the UK.