Articles Criminal Defence 1st Jul 2015

What Is The British Bill Of Rights And Will There Be One?

The 1998 Human Rights Act (the HRA) incorporates the European Convention on Human Rights (the Convention) into domestic law. This enables us to enforce the human rights in UK courts. The HRA also requires UK courts to ‘take into account’ judgments of the European Court of Human Rights (ECHR).

In their 2015 election manifesto, the Conservative Party announced plans to abolish the HRA, and introduce a British Bill of Rights. Specifically, the manifesto stated that “this [the Bill] would break the formal link between British courts and the European Court of Human Rights, and make the Supreme Court the ultimate arbiter of human rights matters in the UK”.

In a policy document published late last year, entitled Protecting Human Rights in the UK, the Conservatives set out their reasons for seeking to introduce a British Bill of Rights. The authors argue that the ECHR has developed ‘mission creep,’ where as a result of the living instrument doctrine, which permits changing interpretation of the Convention, the ECHR has expanded Convention rights in a way that was not anticipated at its creation. Further, it is suggested that the HRA undermines the sovereignty of Parliament, and the role of the UK courts in determining human rights issues in the UK.

Since their election victory, the Conservatives have adopted a more measured approach to implementing changes to human rights legislation, having received significant and widespread criticism. The present plan was announced in the Queen’s Speech last month. The Government now intends to produce a consultation document setting out a range of options for reform before the end of 2015. A draft bill will be published in the middle of 2016. Nonetheless, it remains unclear at present how exactly any draft bill would differ from the Human Rights Act and, more significantly, how it would be implemented and employed.

The election manifesto stated that the Bill would incorporate basic core rights such as the right to life, and the right to a fair trial. It is safe to assume that all other fundamental rights such as freedom from torture or freedom of expression would also be incorporated. In fact, it is widely accepted that most of the HRA would be reflected in the Bill. The only reference to a new approach seems to arise from the statement that “the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation”. This suggests that there would likely be changes to the right to a family life, presently enshrined under Article 8 of the HRA, which has been invoked as a means of avoiding deportation from the UK.

The difficulty is that the ability to appeal from the UK to the ECHR, whether it be on reasonable or “spurious grounds,” arises from our adherence to the European Convention. Article 46 of the Convention states that: “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” Unless the UK were to withdraw from the Convention, it is difficult to see how the Supreme Court could become the ultimate arbiter of human rights issues. The Council of Europe could certainly be petitioned to amend the Convention but that is highly unlikely. The very purpose of the Convention in respect of human rights is to unify the rights of its members, not to provide an exemption for those that seek to alter those rights.

The Government would also need the support of the House of Lords to pass a British Bill of Rights or withdraw from the Convention, and the Conservatives do not have a majority in the House of Lords. Under the Salisbury convention, the Lords do not try to vote down a proposed bill at the second or third reading of any government legislation promised in its election manifesto. This ensures that legislation can be passed even though the party in power does not have a majority in the House of Lords. It is questionable whether the bill was sufficiently set out in the Conservative Manifesto to trigger the Salisbury convention and withdrawal from the Convention is even less likely to meet the test. If the Lords were to block the government’s attempts, the only remaining option would be to use the Parliament Act of 1949 that can be enacted to prevent the Lords from delaying passage of a bill for longer than a year.

Finally, the human rights in the Convention are a crucial part of England’s devolution arrangements with Scotland through the Scotland Act 1998, Wales through the Government of Wales Act 2006, and Northern Ireland as result of the 1998 Belfast Good Friday Agreement. Withdrawal from the Convention would therefore require the consent of each member of the United Kingdom.

In light of the above, a British Bill of rights is certainly not out of the question, but it is unlikely that any major changes to human rights in the UK will occur any time soon.

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