UK Government plan to replace the English Human Rights Act with a British Bill of Rights

After winning an outright majority at the general election, the new UK Government is pressing ahead with its manifesto promise to "scrap the Human Rights Act and introduce a British Bill of Rights". However, few details have emerged about precisely what a proposed British Bill of Rights would contain and how it would operate. Further, there are a number of significant obstacles to repealing the English Human Rights Act (HRA) and the impact of doing so might be limited, particularly if the UK remains a party to the European Convention on Human Rights (the ECHR) and a member of the EU.

1. What has been proposed?

The Conservative Party's proposals, as set out in their election manifesto, appeared to focus on two main issues:

(i) The role that decisions of the European Court of Human Rights should play in the British Courts

The Conservative Party proposed to "break the formal link between British Courts and the European Court of Human Rights". An October 2014 paper suggests that this is aimed at section 2 of the HRA, which requires domestic Courts and tribunals to "take into account" judgments of the European Court of Human Rights.

(ii) The scope of the substantive rights to be protected

The manifesto states that the Conservatives "[r]emain faithful to the basic principles of human rights" contained in the ECHR. However, it claims that the interpretation of these rights has suffered from "mission creep" and extended into unintended areas. A British Bill of Rights will protect "basic rights, like the right to a fair trial, and the right to life". The October 2014 paper suggested that it would limit the use of human rights "to the most serious cases" involving criminal law, individual liberty, the right to property "and similar serious matters", with a threshold to ensure that "UK courts strike out trivial cases".

The manifesto appears to take specific issue with:

• Restrictions on the ability to deport certain foreign criminals and (suspected) terrorists;
• Human rights claims involving the UK's armed forces when deployed abroad; and
• Prisoners' voting rights.

Presumably, a British Bill of Rights will contain express restrictions on the scope of rights in these areas and would therefore reduce the scope of rights currently protected under the HRA.

2. Obstacles to repealing the HRA

A British Bill of Rights which repeals the HRA, particularly one that reduces the scope of human rights protections, is likely to face a number of obstacles in Parliament. The Government majority is relatively slim and it is far from clear that such a bill would have the universal support of Conservative backbenchers. It might also face significant opposition in the House of Lords, although under the Parliament Acts the House of Commons is ultimately supreme.

There are also significant complications arising from devolution. The devolved assemblies and their executives are required to comply with the ECHR under their establishing Acts. Any change to this position or the protection of human rights within those regions may require the consent of those assemblies under the Sewel Convention. However, the Scottish and Welsh Governments have made clear that they strongly oppose repeal of the HRA. The Good Friday Agreement also required the UK to incorporate the ECHR into Northern Irish law, and the prospect of repeal of the HRA has raised concerns about the Northern Ireland peace process, including by the Republic of Ireland Government. In order to resolve these complex issues, there is a very real prospect of different human rights regimes applying in different parts of the UK. 

3. Repeal of the HRA could have limited effect

Even if the HRA were successfully repealed, the effect of doing so may be limited, particularly whilst the UK remains a signatory to the ECHR and/or a member of the EU.

The repeal of the HRA under domestic law would not alter the UK's obligations under the ECHR, or the role of the European Court of Human Rights as a matter of international law. The ECHR gives individuals the right to petition the European Court directly, and under the ECHR the UK undertakes to abide by the final judgments of the European Court. To the extent that a British Bill of Rights prevents claimants from raising human rights claims in the British Courts, they would remain able to take their claims directly to Strasbourg, as was the case before the HRA was introduced.

It is also not clear that the removal of the duty in the HRA to "have regard" to European Court of Human Rights decisions would have the intended effect in practice. Even absent such a duty, the British Courts are likely to continue to consider judgments of that Court as persuasive in interpreting rights under a British Bill of Rights or the common law.

The October 2014 Paper stated that if the UK could not persuade other EU member states to agree to its approach, "the UK would be left with no alternative but to withdraw from the [ECHR]". It is not clear whether this remains the Government's position, as it was not included in its election manifesto. However a denouncement by the UK of the ECHR would be a remarkable step for it to take.

Whilst the UK remains a member of the EU, rights similar to (and sometimes broader than) those under the ECHR will remain fully enforceable in areas governed by EU law. This is because the Charter of Fundamental Rights is directly applicable in the UK. Indeed, the principle of the supremacy of EU law means that (unlike under the HRA) the Charter of Fundamental Rights would even take precedence over incompatible primary legislation. This would not be affected by repeal of the HRA.

4. The rise of common law rights?

Possibly in anticipation of the repeal of the HRA, there has been a renewed focus in the English Courts on the common law as a source of fundamental rights. In Kennedy v Charity Commission [2014] UKSC 20 the Supreme Court emphasised that human rights arguments should start with the common law and only look to the ECHR and European Court of Human Rights' decisions if the common law proved inadequate. The introduction of a British Bill of Rights may give the British Courts greater impetus to develop a common law protection of rights.

For further information, please contact Andrew Lidbetter, Partner, Nusrat Zar, Partner, Jasveer Randhawa, Senior Associate or your usual Herbert Smith Freehills contact.