“The rights protected by the [European] Convention [on Human Rights] and the [Human Rights] Act deserve to be protected because they are, as I would suggest, the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being. Let me briefly remind you of the protected rights, some of which I have already mentioned. The right to life. The right not to be tortured or subjected to inhuman or degrading treatment or punishment. The right not to be enslaved. The right to liberty and security of the person. The right to a fair trial. The right not to be retrospectively penalised. The right to respect for private and family life. Freedom of thought, conscience and religion. Freedom of expression. Freedom of assembly and association. The right to marry. The right not to be discriminated against in the enjoyment of those rights. The right not to have our property taken away except in the public interest and with compensation. The right of fair access to the country’s educational system. The right to free elections.
Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any of them un-British?”
These questions were posed by the late Lord Bingham, one of the great judges of the modern era, in his 2009 lecture for Liberty, as he set out a 10 point criticism of the proposal to repeal the Human Rights Act 1998. They are likely to be troubling politicians, policy makers, journalists and activists over the coming months as the Conservatives push forward their plans for reform of Britain’s Human Rights laws.
The Human Rights Act 1998 was introduced as a way of incorporating the European Convention into UK law. Broadly, it requires public bodies to ensure their actions and policies are in accordance with the rights enshrined in the Convention and judges are to interpret legislation to ensure that it too is Convention compliant.
The Conservatives proposed scrapping the Human Rights Act 1998 as part of their 2010 manifesto. The pledge was watered down in the coalition agreement and a committee was set up to look into a British Bill of Rights as a potential alternative. The Commission failed to reach a unanimous decision and two of its prominent members, Philippe Sands QC and Helena Kennedy QC felt compelled to publish their dissent in the press outside of the report. Despite the failure of the commission to reach consensus the Conservative manifesto of 2015 retained the pledge to scrap the Human Rights Act 1998. After the party gained a majority on 7 May 2015 it is likely to make its way on to the legislative agenda early in the Parliament. Replacement of the HRA with the new British Bill of Rights will be included in the Queen’s Speech on 27 May.
Despite calls from within the Conservative party to publish their proposed alternative to the Human Rights Act it is still unclear exactly what the content would be. If it provides any less protection of Convention Rights than that afforded by the HRA (and overtures suggest it would) then it is likely to face fierce opposition from Labour, the Liberal Democrats, the SNP and factions within the Conservative party. It remains to be seen whether the House of Lords would approve it even if it passed through the commons. Such a move would also create potential legal difficulties both domestically and internationally. The devolved Scottish government has stated that they believe their consent would be required by convention and this would not be forthcoming. It has been argued that such a move would also breach the Good Friday agreement. It would also potentially cause future breaches of the European Convention and likely put the UK in breach of EU law.