“If the UK really wants to be its own boss it would have to formally withdraw from the ECHR” Marietta Cauchi, Senior Consultant

The Bill of Rights proposed by the new Conservative government is intended to replace the Human Rights Act introduced by the then Labour government in 1998. It is due to incorporate into UK legislation the rights contained in the original European Convention of Human Rights (ECHR) but without the body of law created by cases brought under the European Court of Human Rights (ECtHR) in Strasbourg over the years, some of which have caused particular political unease in the UK.

The idea is that judgments from Strasbourg will be advisory only and the UK’s Supreme Court will be the final arbiter. The architects of the Bill of Rights believe that, in this way, the UK Parliament will have control and won’t be answerable to “Europe”. But will it really achieve this through a Bill that can be interpreted by UK judges just as the ECHR has been interpreted by European judges?

It is impossible to be certain of how any new legislation might work until the government publishes detailed proposals and in particular reveals the extent of rights covered and how prescriptive the legislation will be. Indeed it is hard to imagine which of the convention rights the government could exclude if it is to be faithful to the basic principles of human rights.   Constitutional lawyers are already arguing the point.

The government has said that it has no intention of diluting the basic rights set out in the convention but argues with what it has referred to as the ‘warped, arbitrary, extension of those rights’ by Strasbourg. It says the UK Parliament ought to have the final say over British legislation.

Some critics of a proposed Bill of Rights argue that Parliament already has this power because even though the UK has promised, in signing the ECHR, to abide by decisions of the Court in accordance with international law, if it doesn’t want to keep that promise, nobody can force it to do so and to change UK law. –

In these circumstances, any new legislation may only serve to highlight tension between the UK Parliament and its own judiciary if the Supreme Court delivers judgments in human rights cases that the government considers undesirable.

If the UK really wants to be its own boss it would have to formally withdraw from the ECHR, something the Conservatives have, so far, ruled out. Withdrawal would prevent UK nationals from taking human rights’ complaints to Europe.  It would also have consequences, too convoluted to resolve, on the devolution settlements in Scotland, Wales and Northern Ireland which presuppose Britain’s membership of the Convention.

The Bill of Rights seems an unnecessary complication because it won’t prevent the subjugation of Britain to arbitrary ECtHR judgments – the alternative, withdrawal from the ECHR, is surely a step too far?

One thing is certain, the new Justice Minister, Michael Gove, and his euro-sceptic junior minister, Dominic Raab, have a challenging task ahead of them.

13 May 2015