Editors’ note: The blog is inviting constitutional lawyers to comment on the UK Government’s proposal to repeal and replace the Human Rights Act. We continue with a post by Prof Helen Fenwick, Professor of Law at the University of Durham. You can read the other contributions in this series here. Posts on the topic are welcome.

In the first flush of victory after the 2015 General election, and untrammelled by Liberal-Democrats, David Cameron said that repeal of the Human Rights Act would be brought about rapidly – that plans to scrap the HRA would be published within the first 100 days (Independent). The Queen’s Speech 2015, however, did not refer to legislation, but merely to proposals to introduce a British Bill of Rights (BBoR) which would effect such repeal.

The Conservatives had pledged in their 2015 manifesto to abolish the Human Rights Act (HRA) and replace it with a British Bill of Rights, partly in order to “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.” It was notable however that the possibility of withdrawal from the ECHR was not mentioned in the manifesto, although it was in the Conservative policy document on a BBoR published in 2014. No draft BBoR was published prior to the 2015 election. It was apparent in the run-up to the election that senior Conservatives were down-playing expectations as to the nature of a BBoR, and as to distancing the UK from Strasbourg, that they might not be able to fulfil, given that a Conservative majority appeared unlikely.

But although the Conservatives won a majority, it was paper thin. A Queen’s Speech that had included a legislative measure intended to repeal the HRA would have been highly controversial. It would have been opposed by the MPs of all other parties (apart, presumably, from the single UKIP MP) and probably by Conservative supporters of the HRA. In the face of that opposition Cameron backed down – hence the replacement of a reference to legislation by reference to proposals, and the expression of an intention to embark on a lengthy consultation period, defended in commenting on the Queen’s Speech by Priti Patel (Employment Minister) as important in order to ensure that the eventual draft Bill is fully thought through (Guardian). A laudable notion, but probably not one that would have arisen had the Conservatives had a stronger majority. Predictably, various newspapers have fiercely attacked Cameron for pusillanimity on the issue (Sun). The Times’ reporting on the issue on the morning of the Speech (not in an opinion piece) was to the effect that plans to introduce a BBoR to “limit abuse of human rights laws” had faced a backlash (emphasis added).

What shape could a BBoR take now?

But now the question arises – what could be in a new BBoR that would allow Cameron to get it through the Commons? A number of senior Tories (so-called “Runnymede Tories”) have reportedly told David Cameron after the Queen’s Speech that he must abandon a “deeply offensive” threat to withdraw from the ECHR if he is to gain support for the plans to repeal the HRA (Guardian). Dominic Grieve also warned in the Times that withdrawal from the European Convention on Human Rights (ECHR) could mean that if individuals could not obtain a satisfactory level of redress for rights violations domestically or at Strasbourg, that would be likely to lead to mission creep at the ECJ, rather than at Strasbourg, under the ECHR. Clearly, some Conservative MPs would respond by saying “exit the EU too; problem solved”, but Grieve’s point is in part that prospective withdrawal from the ECHR could adversely affect EU negotiations. (Obviously the level of redress provided by the Supreme Court, either under a BBoR or possibly under common law protection for rights, might be as high as that to be obtained at Strasbourg, but differences might emerge, prompting recourse to the ECJ.)

So a new BBoR Bill could seek to break the link between the courts and Strasbourg – and of course creation of such a link is not required under the ECHR itself. (But the method of breaking the link is itself fraught with problems since at present the HRA s2 on a literal reading only requires judges to ‘take account’ of Strasbourg rulings, not to give effect to them.)

More significantly, the new Bill cannot in itself fully address the key objective of the Conservative leadership, without the prospect of withdrawal from the ECHR, which is to break the link between the Strasbourg Court and Parliament – to allow Parliament to disregard rulings of the Strasbourg Court against the UK, by making the judgments ‘advisory’ only. The UK is bound under the ECHR Article 46 to respond to adverse judgments of the Court against itself: it is hard to see that it could remain within the ECHR system if it openly refused so to respond. In any event, while the Bill could purport to render the judgments advisory only, it probably could not pass the Commons, over the life of this administration. So that aspect of the BBoR will probably have to be dropped, at least for the next five years.

That prospect will presumably disappoint Cameron and will be greeted with fury from a number of newspapers and from the more right-wing back-benchers. But, as I have argued on this blog (here), Cameron could take comfort from the drawing in of its horns that appears to be occurring at Strasbourg. In other words, it seems in more sensitive areas of rights’ interpretation to be abandoning an approach often referred to as a ‘living instrument’ one, one that can be viewed as exemplifying ‘mission creep’. That was most evident in the decision not to award compensation to prisoners deprived of voting rights (Firth and others v UK).

Conclusion

In principle supporters of the HRA would not be likely to object to the introduction instead of a Bill of Rights. Labour should have introduced one in place of the HRA originally, in part to avoid accusations that Europe is opposing alien, anti-common sense measures on the UK. But to use one as a method of escaping from the impact of the ECHR rather than as a domestic means of seeking to ensure that recourse to Strasbourg to vindicate rights is unnecessary, is a clearly retrograde step, opposing the notion on the international stage that the UK’s human rights record is one that is overall to be respected.

Helen Fenwick is Professor of Law at the University of Durham.

(Suggested citation: H. Fenwick, ‘HRA Watch: Reform, Repeal, Replace? Backing Down on HRA Repeal in the Queen’s Speech? De-railed Plans for Rapid Introduction of a British Bill of Rights’ UK Const. L. Blog (29th May 2015) (available at http://ukconstitutionallaw.org))