The Conservative party has decided to repeal the Human Rights Act and to leave the European Convention on Human Rights (ECHR) – the international treaty whose rights the act was intended to ‘bring home’. The harder decision is what, if anything, should serve as a replacement. One fashionable proposal is that we should now have a British Bill of Rights that reproduces the Convention. That might reassure voters that any desirable protections survive, but it could also reproduce the very uncertainty that made withdrawal from the treaty attractive. Subtraction, without more, might not amount to improvement, and copying the same rights into a new statute may lead to problems.
Conservatives have promised to repeal the act for about a decade and a half
Mrs Badenoch herself has recognised the conundrum. In her speech at last year’s Conservative party conference, she made clear that her objection is not to the rights in the Convention as such, but to how they have been interpreted by the European Court of Human Rights in Strasbourg. ‘As we work through our detailed plan’, she explained, ‘leaving the ECHR and repealing the Human Rights Act will not mean that we lose any of the rights we cherish.’ The mechanism for preserving those rights is not yet clear.
Conservatives have promised to repeal the act for about a decade and a half. In 2022, the Johnson government introduced a Bill of Rights Bill into parliament, promoted by Dominic Raab. It retained Convention rights while seeking to constrain their interpretation in particular circumstances, including deportation of foreign criminals. The bill never reached second reading and was withdrawn. Lord Sumption, a former UK Supreme Court justice, is a proponent of a similar model. ‘The case’, he argued in these pages in 2023, ‘is that the Convention should be replaced with a domestic code of basic rights which would look very like it.’ He has elsewhere suggested that such a code should directly re-enact the text of the Convention in an ordinary statute.
The political attraction of such proposals is obvious: if a Bill of Rights re-enacts the Convention, it avoids the accusation that anyone is doing away with fundamental rights. That provides a ready defence to detractors who may otherwise point up the loss of particular protections with which few would quibble. But the rationale for withdrawing from the Convention does not dictate that this model must be followed. Much of the reason for leaving would be so that parliament could decide for itself what our fundamental rights should be, and, as importantly, when they can be limited by the state. Parliament might decide, for example, that human rights should have no bearing on decisions about who may enter or remain in the UK, overseas military operations, or certain benefits. Those are political choices that a domestic settlement should make openly, rather than leaving their scope to emerge from litigation over inherited words.
There would also be difficulty in requiring our judges to interpret rights copied directly from a treaty differently from how they have been interpreted by an international court. Like much international law, the Convention rights are expressed in a broad and question-begging way. Our judges will want to look for help in construing them, including from the existing body of Strasbourg case law. Changing who is ultimately responsible for interpreting rights does not necessarily mean they will be interpreted differently. Certainly, it would risk enhancing the rule of lawyers.
Consider the notorious Article 8. Its first part says that ‘Everyone has the right to respect for his private and family life, his home and his correspondence’. That does not explain in what situations the right arises. The scope for interpretation could hardly be broader. The complaint is that the wording of Article 8 does not begin to justify the way that the Strasbourg court has construed it: where, for instance, ‘family life’ is invoked against removal from the country. But how would a British court interpret the same words? What would it consider ‘family life’ to mean, and how would it balance it against the interests of the wider community? Any bill that preserves the text while intending to change its consequences will face a challenge.
Repealing the act without more would pose its own problems. Its central duties would go: public authorities would no longer be under the act’s general obligation to act compatibly with the Convention rights, and courts would no longer be required to interpret legislation consistently with them so far as possible. It would be necessary to consider what to do about case law decided under the act, but otherwise existing statutes and common law would remain. This sounds straightforward in principle; it would be less so in practice.
One question is where repeal would leave the common law’s protection of fundamental rights. The common law has for centuries recognised certain fundamental and constitutional rights, but while Convention rights have dominated the landscape, it has usually been unnecessary to work out the common law’s contours. Take freedom of expression. There is undoubtedly such a right at common law but its reach and remedies probably do not match Article 10 (the right to freedom of expression in the ECHR). Parliament may need to strengthen the common law protection for free speech if repeal is not to bring unintended consequences. It could set out a specific protection for speech, including the circumstances in which a public authority may restrict its expression, instead of reproducing the open-ended language of Article 10. That would focus the legislature to decide for itself what protection to give, through a transparent and democratic parliamentary process.
There are also areas of law in which Convention principles have become interwoven. Our law protecting religious belief at work has been influenced by Article 9’s protection of the manifestation of religion. A law on misuse of private information has been developed by reference to the safeguard for private life in Article 8. The scope of a coronial inquest will now depend on whether a wide inquiry is required by the state’s obligation to protect life under Article 2. An incoming government is unlikely to want a family to receive a less searching investigation into a death in state custody merely because the Human Rights Act is no more. Parliament could expressly provide for the relevant inquest duty and define its reach. No doubt it will require care, but a protection thought valuable to keep could thereby be preserved without re-enacting every word of the Convention.
It would be unfortunate for repeal to sweep away rights that we really want to keep. It would be more unfortunate still to leave Strasbourg only to recreate its difficulties at home. A government promising both liberty and democratic control must do the painstaking work of identifying the protections worth preserving, deciding their limits, and legislating for them in terms citizens and courts can understand. Leaving the Convention is fundamentally a decision about who should answer those questions. Parliament should not hand them straight back to the judges in a British wrapper.
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