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Brexit and a British Bill of Rights—are our human rights under threat?
19/09/2016
Public law analysis: Jonathan Cooper OBE, a barrister at Doughty Street Chambers, considers proposals to
repeal the Human Rights Act 1998 (HRA 1998) and how the impact of Brexit may mean that the EU Charter of
Fundamental Rights is no longer applicable in the UK.
Briefly, what is the background to the government’s pledge to repeal the Human Rights Act
1998 and replace it with a British Bill of Rights (BBoR)?
Back in 1998, the Conservative Opposition gave the Human Rights Bill an unopposed third reading. There was consensus
about the need for improved human rights protection in the UK and there was universal agreement that HRA 1998 was
superbly drafted. All credit for this goes to Sir Edward Caldwell, the Parliamentary draftsman who cleverly wove effective
human rights protection into the British system of government while at the same time retaining parliamentary sovereignty.
Yet, by the 2010 election, replacing HRA 1998 with a BBoR was a Conservative Party manifesto commitment. This pledge
was reinforced in the 2015 election manifesto. The reasons for this rejection of HRA 1998’s scheme are multiple. They
include:
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the lack of a champion for the HRA 1998
the press sensing the HRA 1998 to be a Labour weak spot
the HRA 1998 providing a mechanism to hold the press to account
the fact that the HRA 1998 gives effect to European human rights
the selective use of human rights cases to undermine the HRA 1998
allowing the HRA 1998 to be associated with radical and marginal causes
the impact of 9/11 (when the HRA 1998 had been in force for barely a year)
The list goes on. Civil society, despite collective support for HRA 1998, seems unable to convey why we need HRA 1998.
It also needs to be pointed out that within the Conservative Party there is support for effective human rights safeguards for
the UK. Yet there is half-hearted support for the European Convention of Human Rights (ECHR) forming the basis of
British human rights protection. Labour’s adoption of the ECHR as the basis for HRA 1998 was also pragmatic. Ironically,
new Labour thought that incorporating a pre-existing human rights treaty into British law would prove to be less
controversial—hence ‘bringing rights home’. Interestingly, back in the 1990s, Liberty’s commitment to incorporation of the
ECHR was part of a two-stage process which would culminate in a Bill of Rights for the UK.
What progress has been made so far in relation to this policy?
As part of a Liberal Democrat initiative spearheaded by Nick Clegg, the coalition government held a commission into a
BBoR. That commission—mainly made up of lawyers who also had affiliations to the main political parties—concluded
that HRA 1998 should be replaced with a BBoR. Two of the commissioners disagreed. They were Philippe Sands and
Helena Kennedy. Despite overwhelming evidence from civil society that HRA 1998 was working, the majority of the
commissioners considered (among other things) that the it was now too sullied to be effective, hence recommending its
repeal. Little is heard about that commission nowadays. Its report is rarely mentioned and it is unclear how much it added
to the debate.
Since winning the 2015 election, the Conservative government has undertaken a review of HRA 1998 and what a BBoR
might look like. This built on some work carried out by Chris Grayling when he was Lord Chancellor under the previous
coalition government, but the principal architect of the current review was former Justice Secretary Michael Gove. It
seems clear that prior to the UK referendum on membership of the EU, Mr Gove’s Ministry of Justice (MoJ) was poised to
introduce new proposals for a BBoR. In light of the EU referendum and Gove leaving the MoJ, there was an assumption
that repeal of HRA 1998 was now on the back burner. However, the new Secretary of State for Justice and Lord
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Chancellor, Liz Truss, has made it clear that a BBoR is a manifesto commitment and that it is her third priority as
Secretary of State for Justice.
What challenges have been identified with making such a change?
The biggest challenge facing those that want to replace HRA 1998 with a BBoR is that HRA 1998 is central to the UK’s
devolution settlements as well as the Northern Ireland peace process. Ireland had to pass the equivalent of HRA 1998 in
order to mirror the human rights protection available in the UK. The Scottish Government has made it clear that it is
committed to retaining HRA 1998, as has the Welsh administration.
In terms of substantive rights contained in any future BBoR, which rights currently within HRA 1998 should not be there?
As Lord Bingham famously asked in 2009, ‘which of the rights, I ask, would we wish to discard?’ There are barely a dozen
of them and they offer only the most basic protection.
And what of HRA 1998’s ingenious scheme? Is the plan to dilute that? Under HRA 1998, rights must be given effect
unless an Act of Parliament clearly demands the contrary. The duty on courts to ensure human rights protection is set
highit is ‘so far as it is possible to do so’. And there is an express obligation on public authorities to give effect to human
rights. Might a BBoR merely suggest that human rights are just one set of considerations to be taken into account? That
would take us back to the days when human rights enforcement relied mainly on the European Court of Human Rights
(ECtHR) in Strasbourg.
What impact is the vote to leave the EU likely to have on this issue? Does it make it easier or
more complicated?
HRA 1998 is not linked to EU membership and therefore Brexit, in theory at least, makes little impact. However, if or when
the UK does leave the EU, this will mean that the EU Charter of Fundamental Rights of the European Union is no longer
available to people within the UK. This will be a significant loss in terms of human rights protection and more importantly
enforcement of human rights in the UK. Any changes to HRA 1998 will need to seek to mitigate the loss of the Charter.
Are there other possible routes of human rights reform that might be explored instead?
How do we draw a line under the politicisation of human rights protection? How do we find consensus and trust on this
issue? Recognising the well-thought-through scheme that is HRA 1998 is key. Also accepting that HRA 1998 may not be
the final word on how to protect human rights in the UK is also important. There is much to be indebted for to the ECHR,
but it provides a basic minimum of human rights protection. It is a floor not a ceiling. Should it form the basis of the UK’s
human rights protection or would we be better served by a more comprehensive catalogue of human rights?
At its core, HRA 1998 genius derives from the relationship between HRA 1998, s 3 (the duty to interpret all law compatibly
with HRA’s 1998 rights), and HRA 1998, s 6 (the obligations on public authorities to act compatibly with those rights). That
is the balance that must not be unsettled or diluted in any way.
The Conservative government can satisfy its manifesto commitments by amending HRA 1998. It does not need to be
repealed. An amendment to HRA 1998, s 1 would give effect to the BBoR and not the ECHR. That BBoR will inevitably be
based upon the ECHR. The rights to be contained within it would be reached by agreement. HRA 1998 s 2 would replace
the reference to ECtHR case law and require instead that the UK’s international obligations are taken into account when
interpreting the rights contained in HRA 1998, s 1. This is just a reaffirmation of the position under the common law—the
rest of HRA 1998 would remain intact.
This amended HRA 1998 would create a BBoR and the new HRA 1998, s 2 would commit the UK to the international
legal order. As importantly, it could keep the devolution framework intact and peace in Northern Ireland in place.
As is currently the position, it will always be open to Parliament to pass an Act of Parliament that is not consistent with
HRA 1998 and the new BBoR that it would contain. For example, if security concerns require new laws, the appropriate
response is to legislate for those security needs. The answer is not to dilute the human rights protection contained in HRA
1998.
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Is there any possibility the UK could abandon the ECHR? If so, what would the likely impact
be?
There is no realistic prospect that the UK will withdraw from the Council of Europe and therefore the UK’s current
obligations under the ECHR will remain intact.
How do you see the situation developing in the next six months?
Whilst Brexit is in motion, it is unlikely that there will be any meaningful attempt to tinker with HRA 1998.
Jonathan Cooper is a human rights specialist with experience before English and International courts and tribunals, as
well as conducting training programmes and advising on human rights issues in jurisdictions all over the world. Jonathan
has particular expertise in the EU Charter of Fundamental Rights and human rights and equality rights in the EU. He has
been instrumental in training public authorities and lawyers in the UK on the implementation of HRA 1998 and was
responsible for devising and carrying out human rights training for various UK government departments, including the
Foreign & Commonwealth Office and the MoJ. In 2007 Jonathan was awarded an OBE for services to human rights.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor
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