The Conservative Party's Bill of Rights
14th Apr 2015
"The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights"—Conservative Party Manifesto, 14 April 2015
If you feel strongly about the UK's human rights laws, the general election offers you a clear choice. On the one hand, the Conservative Party and UKIP want to repeal the Human Rights Act 1998. On the other, Labour and the Liberal Democrats support keeping it.
The Human Rights Act makes the European Convention on Human Rights (ECHR) part of domestic law. Scrapping the Act doesn't affect the ECHR, which is an international treaty. The UK ratified it in 1951—meaning that it has promised to respect judgments of the European Court of Human Rights.
UKIP says that it wants to "withdraw from the jurisdiction" of that Court. This would mean, in practice, dropping out of the ECHR altogether.
The Conservative ideas don't go so far. According to the most detailed explanation of its policy, published in October, the party wants to stay signed up to the ECHR, so that individuals could still ask the Strasbourg Court to make a ruling on whether or not their rights have been breached.
But it would repeal the Human Rights Act and bring in a British Bill of Rights so as to change the relationship in other ways.
So what would be different about a Conservative Bill of Rights?
Strasbourg and British judges
The Conservatives say their Bill of Rights 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".
What the Human Rights Act says is that British courts must "take into account" judgments of the Strasbourg Court.
This has been interpreted by the Supreme Court as meaning that they should follow its decisions closely, so that the meaning of Convention rights given in Strasbourg is what applies in our law. As one judge famously put it: "Strasbourg has spoken, the case is closed".
But more recently, the Supreme Court has emphasised that "take into account" doesn't mean that it's bound by a Strasbourg judgment. There are lots of ways for the Supreme Court to justify making its own decision.
The Conservatives would remove any requirement for judges to "take into account" Strasbourg rulings. That doesn't mean the judges couldn't or wouldn't do so. Nor does it mean that British judges would necessarily reach very different decisions about what ECHR rights mean—human rights cases from abroad often influence the Supreme Court.
Strasbourg and UK law
Another objective for the Conservatives is ensuring that the Strasbourg Court is "no longer able to order a change in UK law".
When the Court makes a ruling in a case involving the UK, it will usually state whether or not a person's rights have been breached and leave it to the government to take steps to remedy this. That might involve changing one of the UK's laws, and occasionally the Court will spell this out.
The UK has promised, in signing the ECHR, to abide by decisions of the Court. Failure to keep that promise would be a breach of international law. But if the UK doesn't want to keep that promise, nobody can force it to do so. Changing the law is still a matter for Parliament.
Stating in a new Bill of Rights that Strasbourg Court rulings are "advisory" wouldn't change the position in international law.
But the idea of introducing a "Parliamentary procedure to formally consider the judgment" is new, as currently Parliament doesn't have to respond at all. It's only the government that needs to act, lest it be criticised by other countries for not complying with international law.
This element of the Conservatives' original plans doesn't seem to be included in their manifesto, though.
The Human Rights Act is partly a law about law. It says that when deciding what other legislation means, judges should as far as possible interpret and enforce other laws in a way that's in line with the ECHR. The courts have stated that this sometimes requires stretching the ordinary meaning of language. But judges can't totally contradict what Parliament intended when it enacted the law in question.
For example: someone who still rents their house under the old system of rent controls can pass on that protected tenancy after they die to a long-term partner living there "as his or her wife or husband". In 2001, when his landlord tried to evict him, a man called Juan Godin-Mendoza tried to claim the right to inherit his recently deceased partner's tenancy. But they were a gay couple, and the courts had previously ruled that the rent control legislation did not protect same-sex partners.
Mr Godin-Mendoza argued that the Human Rights Act now required the court to interpret that law in line with the ECHR—which would mean it couldn't exclude gay couples in this way, unless Parliament definitely intended to. He won, and got to inherit the tenancy.
The Conservatives want to remove this requirement to interpret legislation in line with the ECHR. But if judges still have the power to declare laws incompatible with a new Bill of Rights, this could lead to them doing so more often, as they don't have the alternative option of stretching the meaning.
And if people can still challenge laws at the Strasbourg Court, this might lead to more decisions against the UK there—Mr Godin-Mendoza would almost certainly have won in Strasbourg.
Less rights, but not fewer rights
The Conservatives want to limit the use of a British Bill of Rights to "the most serious cases", so it won't cover "trivial" issues. At present, human rights arguments can be used in any case where they're relevant.
They also want human rights laws to be restricted in terms of who can use them. The Conservatives cite the examples of "a foreign national who takes the life of another person", and "terrorists", who would be prevented from invoking human rights law to resist being deported.
But the Conservatives don't propose radical change in the core content of their Bill of Rights compared to the Human Rights Act. They say the wording of the rights people have would be largely the same as in the ECHR.
Some of the text would be altered so that the meaning the Strasbourg Court has given the right over the years would be different. The Conservatives object to how the court has interpreted some articles, and have given some examples of the specific changes they would make.
The British constitution
As we've said, the Human Rights Act is in some ways a law about law. Put another way, it's regarded as an important part of the British constitution. This is not, as sometimes claimed, "unwritten". All of the laws and customs involved are written down somewhere. It's more accurate to say that the constitution is "uncodified"—meaning not collected together in one document.
In the codified constitutions of many other countries, personal rights feature prominently. So there would be a strong argument for including human rights, in some form or other, in a codified UK constitution. Academics such as Vernon Bogdanor and Conor Gearty think we should draw one up, as do the Liberal Democrats and the Green Party.
There are no signs that any government would push for a codified constitution in the immediate future, though. So what's in the Human Rights Act or a British Bill of Rights is likely to be a central constitutional issue for some time.