European Court of Human Rights would lose power to change under new proposals

A majority Conservative government will scrap the Human Rights Act and end the ability of the European Court of Human Rights to order changes to British laws, it has been announced.

A new British Bill of Rights and Responsibilities will ‘restore common sense to the application of human rights in the UK’, according to a Conservative party press release.

According to the release, the legislation will remain faithful to the ‘basic principles of human rights’ but will reverse the ‘mission creep’ that has meant human rights law being used for purposes it was not designed for. Along with repealing the HRA, the Bill will break the formal link between British courts and the court in Strasbourg, meaning Britain’s courts will no longer be required to take into account rulings from the court in Strasbourg.

Future judgments made against the UK will be treated as advisory and will have to be approved by parliament if they are to lead to a change in our laws. Furthermore, British courts will no longer be able to decide how to apply human rights laws to new areas of public life.

Moreover, people who do not ‘fulfil their responsibilities in society’ will not be able to claim so-called ‘qualified rights’ in their defence in a court. Also, those that pose a national security risk or have entered the UK illegally will not be able to rely on human rights claims to prevent deportation.

Finally, the use of human rights laws will be limited to the most serious cases and will no longer be used in ‘trivial’ cases.

The strategy paper and draft Bill has been prepared by leading Conservative QCs following a series of discussions with lawyers, academics and parliamentarians. A draft of the Bill will be published for consultation before Christmas.

Balanced responsibilities

Justice secretary, Chris Grayling, said: “We cannot go on with a situation where crucial decisions about how this country is run and how we protect our citizens are taken by the European Court of Human Rights and not by our parliament and our own courts. We also have to be much clearer about when human rights laws should be used, and that rights have to be balanced with responsibilities.

“People in this country are fed up with human rights being used as an excuse for unacceptable behaviour. We will always stand against real human rights abuses, and political persecution. But these plans will make sure that we put Britain first and restore common sense to human rights in this country.”

Lord Howard of Lympne, QC commented: “The argument is not about human rights, to which we all subscribe. No, the argument today is whether arrangements such as the European Court of Human Rights and the Human Rights Act actually help to protect such rights or, by the way in which they have operated, bring the concept into disrepute.

“Certainly, the way in which the convention on human rights has been interpreted is far removed from its founders’ intentions. We are simply restoring parliamentary sovereignty, and some much needed common sense, to our human rights laws.”

The Conservatives expect that a change in human rights legislation will mean that ‘terrorists and criminals’ who pose a significant threat to the security of the UK will lose their right to remain in the country. Those individuals will lose their ability to claim the right to family life.

Furthermore, the Bill will limit the reach of human rights cases to the UK only, so overseas British Armed Forces will not subject to persistent human rights claims.

Parliamentary sovereignty

Earlier this week the former Lord Chief Justice, Lord Judge, warned that “it would be a negation of the democratic process for members of parliament to be obliged to vote for a measure with which they disagree” if ordered to do so by the Strasbourg court. Lord Judge also said that “ultimate sovereignty does not rest with the courts, but with parliament. What is more, in our arrangements, although parliament is expected to respect a treaty obligation, it is not bound to do so”.

“In my view in any country which embraces the principle of democracy, and certainly in the UK, ultimate authority over constitutional and societal questions is not vested in a body of judges, however wise and distinguished, and even if the system for their appointment is beyond criticism,” he said.

Meanwhile, former attorney general Dominic Grieve QC told the Guardian the paper produced contains a “number of howlers”, described it as a “failure of ambition” and “they are unworkable and will damage the UK’s international reputation”.

This article was first published in the Solicitors Journal on 3 October 2014 and is reproduced with kind permission.