24 Oct 2016, 33 mins ago

In its manifesto, the Conservative Party pledged to “scrap the Human Rights Act [HRA], and introduce a British Bill of Rights”. It said that this would “break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK”.

However, since the election, some doubt has arisen over what exactly the Government had in mind. It was widely believed that the Queen’s Speech on 27 May would announce legislation to scrap the HRA. However, in the event, the speech simply said that the Government would bring forward proposals for a British Bill of Rights, and The Times reported that the Prime Minister had stepped back from an early confrontation with his own MPs over the move to scrap human rights laws[1]. The Government only has a majority of 12 and a number of prominent Conservative MPs, including Dominic Grieve, the former attorney-general, oppose the repeal of the HRA. This led to speculation that the scrapping of the Act had been put on the back burner and may in fact not take place. However, on 15 June, in his speech on the 800th anniversary of the signing of the Magna Carta, the Prime Minister signaled his intention to press ahead with the repeal of the Act, stating, “in Britain, ironically, the place where those ideas were first set out, the good name of ‘human rights’ has sometimes become distorted and devalued. It falls to us in this generation to restore the reputation of those rights – and their critical underpinning of our legal system”. In an article in The Sun a day earlier, Mr Cameron said he had tasked the new Justice Secretary, Michael Gove, with sorting out “the complete mess” of Britain’s human rights laws, and said, “I’m absolutely clear: we will scrap the Human Rights Act, and, with a new British Bill of Rights, we’ll restore common sense to our legal system”.

Until now, it has remained unclear exactly how this might be done. A Conservative Party policy document, “Protecting Human Rights in the UK” was presented by the then Justice Secretary, Chris Grayling, in October 2014. The paper said that a new British Bill of Rights would: replace the HRA and put the text of the European Convention on Human Rights into primary legislation; clarify the Convention rights, to reflect a proper balance between rights and responsibilities; break the formal link between British courts and the ECtHR; limit the use of human rights laws to the most serious cases; limit the reach of human rights cases to the UK; and amend the Ministerial Code to remove any ambiguity in the current Rules about the duty of ministers to follow the will of Parliament. The paper said that during the passage of the British Bill of Rights, the UK would engage with the Council of Europe, and seek recognition that its approach is a legitimate way of applying the Convention. If the UK could not reach agreement, it would withdraw from the ECHR. This paper attracted much criticism, particularly with regard to the precedent that withdrawal from the ECHR might provide for countries like Russia to withdraw from the Convention.

However, on 8 November, The Sunday Times published a leak of the Government’s proposals to replace the HRA. The leak appears to be a draft of Mr Gove’s consultation paper, which is due to be published in December 2015. The leak appears to show that many of the measures proposed in the October 2014 paper have been adopted but there has been a significant shift regarding withdrawal from the ECHR. The paper makes it clear that the UK will remain a signatory to the ECHR.

The Sunday Times says that the draft bill will reduce the amount of compensation that can be won by those claiming their human rights have been infringed by public bodies. It will also grant soldiers and journalists greater protection from damages claims using human rights laws, and there will be an explicit statement backing “freedom of expression” for the press. Human rights laws would only apply in the UK, meaning that they could not be used against the armed forces for actions taken overseas. The paper complains of the “persistent human rights claims against our armed forces and the MoD”.

The consultation paper also reportedly proposes to introduce a “seriousness” threshold before a human rights claim can be taken to court.

Under the new bill, people would retain the right of individual petition to the European Court, but it would limit remedies for those bringing cases against the public services.

Ministers are also said to be considering enshrining the notion of parliamentary sovereignty explicitly in law, making it clear that it would be for MPs to decide how to respond to adverse Strasbourg judgments.

According to The Sunday Times, the consultation document is expected to be published within the next four weeks, with a three month consultation period to follow. The draft Bill of Rights will then be published next spring. However, a Ministry of Justice spokesman dismissed this as speculation.

The proposals therefore seem to incorporate many of the worst elements of the Grayling paper, although the apparent retreat from the threat to leave the Convention altogether is welcome. Those opposed to the repeal of the HRA may be interested in a campaign that is being run by Amnesty International to save the Act. In addition, a group of barristers and journalists have set up a campaign to rally support for the HRA by way of crowdfunded billboards and short films, highlighting how the Act has helped ordinary people.

[1] The Times, “Cameron blinks first in human rights row”, 27 May 2015.