the ultimate arbiter of human rights matters in the
The manifesto on which the Conservative Party fought the General Election on 7 May 2015 made the following commitment:
“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill
of Rights. This will 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
These measures were mooted last October in a Conservative strategy paper, entitled Protecting human rights in the UK.
European Court of Human Rights is the ultimate arbiter now
The manifesto omits to mention that, at present,
Article 46(1) of the Convention states:
"The High Contracting Parties undertake to abide by the final judgment of the [European] Court [of Human Rights] in any case to which they are parties."
as long as the
Will the Government withdraw from the Convention?
Of course, the
But the Conservative manifesto does not make a specific proposal to that effect and subsequent to the election, the Government has refused to rule in or to rule out withdrawal from the Convention. In the House of Commons on 28 May, in answer to questions from Yvette Cooper for Labour, Michael Gove, who as Minister of Justice is responsible for implementing these proposals, refused three times to do so. The Prime Minister has been equally evasive. Asked by Conservative MP Andrew Mitchell at PMQs on 3 June “to make it clear that he has no plans” to withdraw from the Convention, he delivered the following piece of rhetoric designed to keep his anti-European backbenchers happy:
“We are very clear about what we want: British judges making decisions in British courts, and the British Parliament being accountable to the British people. The plans that were set out in our manifesto do not involve us leaving the European convention on human rights, but let us be absolutely clear about our position if we cannot achieve what we need – I am very clear about that. When we have these foreign criminals committing offence after offence, and we cannot send them home because of their ‘right to a family life’, that needs to change. I rule out absolutely nothing in getting that done.”
If he is to live up to this rhetoric about deporting “foreign criminals”, he would be well advised to deprive them of access to all courts, not just foreign ones.
(Incidentally, does the Prime Minister not realise that British judges already make decisions in British courts and that the British Parliament is already accountable to the British people? There has just been an election after all.)
So, what will the Government do about the Convention? Answer: probably, nothing. So, how will it achieve its manifesto
commitment to “make our own Supreme
Court the ultimate arbiter of human rights matters in the
course, this will mean that in each case the
failing to do so will undermine the
A British Bill of Rights
addition to making the UK Supreme Court “the ultimate arbiter of human rights
matters in the
The Human Rights Act, which was passed by the Labour Government in 1998, put the European Convention on Human Rights into
upholding an individual's Convention rights, Section 2 of the Human Rights Act
The British Bill of Rights the Conservatives propose as a replacement for the Human Rights Act will also write the European Convention into domestic law. But, assuming the principles outlined in last October’s strategy paper are reflected in the Bill, some of the rights enshrined in the Convention will be qualified significantly. For example, the strategy paper says:
"Our new Bill will clarify ... limitations on individual rights in certain circumstances. So for example a foreign national who takes the life of another person will not be able to use a defence based on Article 8 [right to family life] to prevent the state deporting them after they have served their sentence.”
unlike the Human Rights Act, the British Bill of Rights will not oblige
they diverge, which judgment is the Government going to apply? Presumably, a Government committed to the UK
Supreme Court being “the ultimate arbiter of human rights matters in the
Bill dead in the water?
Of course, notwithstanding the Prime Minister’s bluster, the Government’s proposals may already be dead in the water. True, in the Queen’s Speech on 27 May, the Government undertook to “bring forward proposals for a British Bill of Rights”. Here, it is worth noting that in last October’s strategy paper the Conservative Party promised to “shortly publish a draft British Bill of Rights and Responsibilities for consultation” but it didn’t. Now the Government isn’t even promising to publish a draft bill, merely to bring forward proposals for one (without “responsibilities”).
a Bill eventually emerges, it is by no means certain that the Government will
be able to get it through the House of Commons, and it is likely to be rejected
by the House of Lords. The Government’s
overall majority in the Commons is slim and several of its senior backbenchers
are opposed, for example, Dominic Grieve (former Attorney General), Kenneth
Clark (former Minister of Justice), David Davis (former shadow Home Secretary),
Damian Green (former justice minister) and Andrew Mitchell (former Chief Whip). And, with the possible exception of the
Unionist parties from
Grieve served as Attorney General for four years until he was removed from his
post in July last year. He described
the proposals set out in the Conservative strategy paper last October as
"almost puerile", adding: "I also think they are unworkable and
will damage the
Repealing the Human Rights Act, as the Government
is proposing, would have serious implications for the political settlement in
It would be a clear breach of the Belfast Agreement
to repeal this Act, unless the Convention was put into
This is not just a domestic matter for the
Implications for human rights under devolution
The existence of devolution in
The complications involved in this are explained by Colm O’Cinneide, a reader in law at University College London, in a March 2013 paper Human Rights, Devolution and the Constrained Authority of the Westminster Parliament.
The key fact here is that there are provisions
written into the devolution statutes requiring the devolved legislatures and
The Human Rights Act is
introduces serious complications for a UK Government determined to replace
European Convention rights across the
“For example, any change to the current requirement that the Northern Irish, Scottish and Welsh legislatures must comply with Convention rights would affect the scope of their devolved powers: as a result, under existing constitutional arrangements, it would appear to trigger the Sewel Convention, meaning that Westminster would ‘normally’ have to seek the consent of the devolved legislatures before it could legislate in respect of human rights law as it applies in respect of devolved matters.
“Furthermore, because the devolved legislatures are
able to take steps to extend human rights protection, they have the power to
minimise the impact of any reduction of rights protection brought about by
“Furthermore, even if such consent was forthcoming, or the Westminster Parliament chose simply to disregard the Sewel Convention, the devolved legislatures might subsequently be able to restore much of the status quo within the sphere of devolved functions. For example, if Westminster were to repeal the HRA [Human Rights Act], the Scottish Parliament would appear to have the power to introduce a ‘Scottish HRA’ or an equivalent measure in respect of devolved matters, which could provide an equivalent or even greater level of rights protection within its sphere of application than currently available under the HRA.”
Perhaps, it would be wiser to leave things as they are.
13 June 2015