The quick answers to the above two questions are Yes and Maybe. Despite the statutory framework that devolved power to legislative bodies in Scotland, Northern Ireland and Wales, the UK parliament has the power to repeal the 1998 Human Rights Act (“HRA”). Yet there are significant legal, constitutional and political aspects that will determine the future of the HRA. Before delving into these, it is worth asking why repeal is even on the agenda.
This proposal is not new. The Conservative party promised to repeal the HRA in 2010 and replace it with a British Bill of Rights, but ended up governing in coalition with the Liberal Democrats. A Commission on a Bill of Rights was set up instead, but failed to reach a consensus. In the 2015 manifesto the pledge re-emerged. Having won a majority on the May 7th Prime Minister David Cameron is now pressing ahead. (Also high on his legislative agenda is a referendum on EU membership). The government claims scrapping the HRA would:
- “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” and,
- “Stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.”
It also intends to go ahead with a “British Bill of Rights” to:
- “Remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights.”
- “Reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society”, and
- “Ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job.” This argument will be familiar to readers of recent posts on the second of the two “Fog of Law” reports (2013 & 2015, Policy Exchange).
Readers will see the many legal reasons why most of these aims cannot be achieved by abolishing the HRA, Read the rest of this entry…