The Human Rights Act versus a British Bill of Rights

The Conservatives pledged in their 2015 general election manifesto that they would scrap the Human Rights Act and replace it with a British Bill of Rights. David Cameron has appointed Michael Gove as Justice secretary, and the replacement bill will fall within his remit. But what is the Human Rights Act, how would it differ from a British Bill of Rights and why do the Conservatives want to make this change?

The Human Rights Act 1998

The current Human RIghts Act was passed in 1998, a year after Tony Blair’s landslide victory. It sets out human rights within the UK and:

1. requires all public bodies to abide by these human rights (e.g. government, police, NHS)

2. incorporates the European Convention on Human Rights into British law

The human rights listed by the European Convention are:

  • right to life
  • right not to be tortured or subjected to inhumane treatment
  • right not to be held as a slave
  • right to liberty and security of the person
  • right to a fair trial
  • right not be retrospectively convicted for a crime
  • right to a private and family life
  • right to freedom of thought, conscience and religion
  • right to freedom of expression
  • right to freedom of assembly and association
  • right to marriage
  • right to an effective remedy
  • right not to be discriminated against
  • right to the peaceful enjoyment of one’s property
  • right to an education

The Convention also established the European Court of Human Rights. Under the 1998 Human Rights Act, British citizens who feel their human rights have been violated by a public authority can bring their case through the UK court system. Before 1998, such cases had to be heard in Strasbourg, and that would be the case again if the Human Rights Act is scrapped.

It’s worth noting that the ECHR is entirely separate from the European Union: even if we voted to leave the EU in the upcoming referendum, UK citizens could bring human rights cases to Strasbourg.

The proposed British Bill of Rights: what and why?

There are two possibilities. Either the British Bill of Rights will seek to amend or exclude some of the rights listed in the 1998 Act, or it will have to restate all of them.

In the case of amending or removing current human rights, this would be very difficult to achieve unless the UK leaves the Convention. This would be an extreme and dangerous move: things such as free and fair elections, as well as any of the rights the Bill chooses not to include, would no longer be legal obligations. UK citizens could no longer bring human rights cases to ECHR courts. The EU and United Nations would take a very dim view.

In the case of restating currently held human rights, the only two changes would be making it no longer possible to have human rights cases against public bodies heard in UK courts, and the name: it would break a link in people’s minds with Europe, and assert human rights as a patriotic British area of legislation.

The previous Justice secretary, Chris Grayling, was seeking a veto so that UK courts could overrule ECHR decisions in individual cases, including deportation of criminals (which is currently blocked if it is known they will face torture). It’s not yet known whether Michael Gove will seek the same veto, or if he would threaten to leave the Convention if he doesn’t get it.

Unknown implications

Scrapping the Human Rights Act would have knock-on effects in other areas, such as the Good Friday Agreement (the Northern Irish peace deal), which names it as a safeguard. The devolved assemblies in Scotland and Wales recognize the decisions of ECHR courts as the final arbitrar, so it is unclear how the British Bill of Rights would be compatible.

At this stage there are more questions than answers, and I sense a giant legal headache for Michael Gove’s team lies ahead. There will be strong opposition from the House of Lords, and from several Conservative backbenchers such as David Davis. The gains will have to be clearly demonstrated as being both desirable and worthwhile, and you can bet that this manifesto pledge will be subject to more scrutiny than any other.

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