Conservatives confirm plans to scrap Human Rights Act and replace it with a ‘Bill of Rights’

Following a cabinet reshuffle and weeks of rumours, the worst kept secret in British politics was finally revealed during the Conservative Party conference when David Cameron pledged that a majority Tory government would scrap the Human Rights Act (HRA) and replace it with a ‘British Bill of Rights’.

Addressing the party conference, the prime minister said: “Of course it’s not just the European Union that needs sorting out, it’s the European Court of Human Rights. When that charter was written, in the aftermath of the Second World War, it set out the basic rights we should respect. But since then, interpretations of that charter have led to a whole lot of things that are frankly wrong.

“Rulings to stop us deporting suspected terrorists. The suggestion that you’ve got to apply the convention on the battlefields of Helmand. And now they want to give prisoners the vote. I’m sorry I just don’t agree. Our parliament decided they shouldn’t have that right. This is the country that wrote Magna Carta…we do not require instructions from judges in Strasbourg. This country will have a new British Bill of Rights to be passed in our parliament, rooted in our values. And as for Labour’s Human Rights Act? We will scrap it.”

National decisions

The prime minister’s speech followed the Lord Chancellor’s promise that the Conservatives were ready to change the law to ensure that Britain was no longer “powerless” before the Strasbourg court. Grayling told the Daily Telegraph: “Decisions like ‘do prisoners get the vote?’ or ‘can you send brutal murderers to prison for their whole lives?’ seem to be outside our control,” he said. “I want our Supreme Court to be supreme. Decisions that affect this country should be taken in this country.”

This was followed by the home secretary, Theresa May, who detailed plans to curb the appeal rights of 70,000 people facing deportation from the UK every year. “The next Conservative manifesto will promise to scrap the Human Rights Act,” she said. “It’s why Chris Grayling is leading a review of our relationship with the European court [of human rights], and it’s why the Conservative position is clear. If leaving the European convention is what it takes to fix our human rights laws, that is what we should do.”

May continued that a new immigration bill would enforce guidance already sent to judges to ensure that illegal migrants and others cannot abuse article 8 of the European Convention on Human Rights so as to prevent deportation. “Some judges chose to ignore parliament so I am sending a very clear message to those judges,” commented May. “Parliament wants the law on people’s side, the public wants the law on the people’s side and the Conservatives in government will put the law on the people’s side once and for all.”

She added: “Since 2010, I have prevented more foreign hate preachers coming to Britain than any home secretary before me. And – despite the European Court of Human Rights – I’ve kicked a few of them out of the country too.”

Lawyers respond

Lawyers have been waiting for the Tory’s announcement with baited breath, fearful that a majority Conservative government would leave the European Convention on Human Rights (ECHR). However, the contents of Cameron’s speech suggest that those concerns, at least for now, have been allayed.

Human rights barrister and blogger, Adam Wagner, tweeted: “Cameron complained about Strasbourg judges, but UK will remain in the ECHR. Parliament has international law duty to enforce its judgments. So now we know that Grayling, [Theresa] May, [Dominic] Raab et al, who wanted to kill off the ECHR, have probably lost the debate. Rightly so. The problem of the ECHR criticism bubble is that it pops under analysis. Well done to whoever in the Tory party did that analysis.”

Many others tweeted disapprovingly of the keynote speeches. Solicitor and journalist David Allen Green, tweeting from @JackofKent, said: “European Court of Human Rights will be prevented from overruling decisions, says Grayling unaware that court actually has no such power”, and, “Theresa May (rightly) against stop-and-search. That is the stop-and-search which was upheld by national courts, but not upheld by [European Court of Human Rights]. Stop-and-search is an excellent example of the merits of the ECHR. Grayling’s ‘real human rights’ would have done nothing to end practice.”

Responding to Cameron’s speech, Law Society president, Andrew Caplen, said: “The Human Rights Act ensures that the rights included in the ECHR are enshrined in UK law. The convention was established following the Second World War to protect the rights of the people, over the powers of governments. The Law Society is proud of the protection that the HRA provides, of Britain’s role in the creation of an EU-wide court of human rights, and of the decisions that have been made there. We should promote the existing act, not replace it.”

Stephen Grosz QC, a senior consultant with Bindmans and chair of the Law Society’s human rights committee, told SJ: “The Law Society’s policy is clear: human rights are not just for export, but start at home; and the Human Rights Act is a vital tool in the domestic protection of fundamental rights. It has been a victim of a sustained campaign of misinformation, such that its repeal is now seen as a vote winner. Our liberties are too important to be traded as a political crowd pleaser.”

Yogi Amin, partner and the national head of public law at Irwin Mitchell, told SJ: “In his speech, Cameron described the UK as the country that has stood up for human rights time and again. This country wrote the Magna Carta and was a founding member of the ECHR. Scrapping the HRA is a destruction of that legacy.

“With a new Bill of Rights, it appears that a Conservative government would ‘cherry pick’ which human rights people in this country should have. However, constitutional protections cannot and should not be gifted to or removed from the British people based on the whims of politicians.”

Amin argues that getting rid of the HRA will have little e ffect on the UK’s duties under international law to enforce the judgments of the European Court of Human Rights. “Citizens of this country would still be able to seek to assert their rights and claim the protection set out in the ECHR; however, ultimately they would have to turn to the Strasbourg court to do so.

“Therefore, in stark contrast to the wishes of the Conservative party, judges in Strasbourg would still be making decisions about human rights in the UK; it would simply be a much more expensive and slower process for British people to assert these rights. We would be back to the old days before the HRA where rights were not readily realised,” he said.

Tory divide

Shadow justice secretary, Sadiq Khan MP, commented via Twitter: “Grayling’s ignorance of human rights frightening – peddling myths not beffitting of a Lord Chancellor who swears oath to uphold rule of law,” and, “Cameron needs beginner’s guide to our constitution – Human Rights Act is a British Bill of Rights! Maybe Dominic Grieve can give a tutorial?”

The recently deposed attorney general, Dominic Grieve QC MP, appeared at the Liberty Conservative Fringe event on the first evening of the conference. There he spoke of the benefits that membership of the ECHR brings: “Week in week out, the ECHR delivers protection for individuals all across Europe”.

He warned that cherry-picking the judgments of the Strasbourg court would cause a “legal earthquake”, and could undermine the UK’s participation in international treaties. Grieve also argued that the case for altering the relationship with Strasbourg was misconceived, as the HRA only requires domestic courts to “take into account” the case law Strasbourg. He said that “now is not the time to stop [the] conversation” between the UK courts and the European Court of Human Rights.

The former Lord Chancellor, Ken Clarke QC MP, commented: “Modern government is big, powerful and bureaucratic. It interferes with every aspect of our lives. We need the ECHR more now than we did when it was created”. Clarke was scathing about the quality of debate on the issue in the UK as “much of it is devoid of fact.”

David Davis MP praised the way in which the ECHR “holds states to account in a great number of ways”. Speaking on the possibility of a British Bill of Rights, Davis insisted that such a Bill must provide sufficient protection for rights that currently exist in the UK without diminishing the protections of the HRA.

Amin observed: “Cameron stated that it is the interpretation of the ECHR that has led to situations that are ‘frankly wrong’. Will he then try to dictate the way British judges interpret a British Bill of Rights? These and many other questions remain unanswered. It would be sensible to remove an assessment of this important question away from politicians.”

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