Human Rights Act

The obstacles to a British Bill of Rights

In Thursday’s Queen’s Speech, it was announced that “Proposals will be brought forward for a British Bill of Rights.” Commentators were quick to notice that this was almost exactly the same wording used in the previous year’s Queen's Speech, when it was announced that “My Government will bring forward proposals for a British Bill of Rights.”

Despite the Government’s initial commitment to produce a draft bill within 100 days of the General Election and subsequent commitment to introduce the new bill by summer 2016, no consultation documents or further details have been revealed. There are a number of likely causes of this delay, including the EU referendum, devolution and Parliament.

The EU referendum

The most immediate obstacle slowing the British Bill of Rights is the EU referendum, which was first announced in the PM’s Bloomberg Speech in 2013. It is understood that the Prime Minister believes that allowing the Secretary of State for Justice, Michael Gove MP, to present the argument that Britain should continue, but reform, the United Kingdom’s relationship with the European Court of Human Rights in Strasbourg while Gove simultaneously argues that the UK should withdraw from the European Union is too politically complicated. It is therefore probable that the Government will not publish any further details on the British Bill of Rights before June 23rd, 2016.


The second major obstacle is caused by devolution. In October 2014, the Scottish Community Safety and Legal Affairs Minister Roseanna Cunningham stated that:

“The Scottish Government is strongly opposed to any attempt by a future UK Government to repeal the Human Rights Act or to withdraw from the European Convention on Human Rights. To do so would require the consent of the Scottish Parliament and, given our longstanding opposition, we would invite the Scottish Parliament to refuse this.”

On Thursday, this statement was reaffirmed by the Scottish Nationalist Party leader Nicola Sturgeon. Moreover, Ruth Davidson, the leader of the Scottish Conservative Party, has also indicated her belief that the Scottish Parliament would have the final say on any change to human rights.

With almost all major parties opposed to human rights change in Scotland, it is almost inconceivable that Holyrood would give consent to any repeal of the Human Rights Act. The situation is similar in Wales where Carwyn Jones, the recently re-elected First Minister, has pledged that the Welsh Government will do “everything it can to block repeal of the Human Rights Act”.

The questions of whether the devolved parliaments of the United Kingdom can block the repeal of the Human Rights Act and the creation of a British Bill of Rights is complex. Professor Mark Elliott, a Professor of Public Law at the University of Cambridge, explains that the UK Parliament is legally free to create and repeal whichever laws it desires, both for the UK as a whole and for any of the devolved nations.

While at first glance this may appear to allow Westminster to impose human rights change on Scotland and Wales, in practise the situation is much less clear. The UK Government’s relationship with the devolved nations is governed by the Sewel Convention. The Sewel Convention states, in essence, that the UK Government must obtain the consent of devolved parliaments if it wants the UK Parliament to legislate with respect to devolved matters. The Convention is not legally binding. However, disobeying the Convention would be politically difficult particularly in light of the recent Scottish independence referendum.

Whether the UK Government can repeal the Human Rights Act therefore amounts to a question of whether human rights is a devolved matter. Professor Christine Bell argues that because some aspects of human rights are partially devolved then “any unilateral repeal of the Human Rights Act by Westminster would violate the Sewel Convention”. Professor Mark Elliott takes a slightly different view. He argues that the Sewel Convention does allow the UK Government to repeal the Human Rights Act but that the Convention prevents the UK Government from introducing a British Bill of Rights in the devolved nations. This is because the UK Government has recognised that it will activate the Sewel Convention when it enacts legislation that “a devolved legislature could have enacted”. Whichever of these interpretations is correct, the Government’s plans for human rights reform are likely to be substantially curtailed by devolution. This is why Baroness Kennedy, Chair of the Lords’ Justice Committee, has warned that the proposals could “very well end up as an English Bill of Rights”.

Northern Ireland

Within the hurdle of devolution, Northern Ireland presents a distinct obstacle. First, it suffers from the same problems outlined above. Second, it faces numerous other obstacles due to the Good Friday Agreement. The Good Friday Agreement requires the European Convention on Human Rights to be incorporated into UK law. Professor Christine Bell has argued that any change to the Human Rights Act “could be considered a breach of the Good Friday Agreement”. Other observers believe that the UK could repeal the Human Rights Act but that the UK Government would need to simultaneously introduce new legislation that incorporates the European Convention into British law. At the very least, Northern Ireland is likely to significantly restrict the content of any future British Bill of Rights.


The third major obstacle for the British Bill of Rights is Parliament. The Scottish Nationalist Party has indicated that it will oppose any repeal of the Human Rights Act - even if it did not apply to Scotland. Labour, the Liberal Democrats, the Green Party, Plaid Cymru and the Northern Irish Nationalist Parties will all, almost certainly, also oppose repeal. Outside of the Conservative Party, the Government is only likely to find allies within the Democratic Unionist Party and UKIP. This means that the Government will need to avoid a rebellion on its backbenches to pass the Commons. However, there are significant reasons to believe this is unlikely. The Human Rights Act has some significant defenders from across the Conservative Party. Even before the bill reaches Parliament there are likely to be significant divisions within the Cabinet. The Home Secretary has said that Britain should withdraw from the European convention and press reports suggest that other Cabinet members are sympathetic to her position. A relatively small rebellion would probably be sufficient to defeat the Government.

If the British Bill of Rights does make it through the Commons then it will face further obstacles in the House of Lords. The Lord’s abilities to delay legislation is usually restricted by the Salisbury Convention - which states that the Lords will not oppose the second or third reading of any Government legislation promised in its election manifesto. However, Professor Mark Elliott has argued that because of the significant constitutional changes involved in the repeal of the Human Rights Act and the creation of a British Bill of Rights, the Salisbury Convention may not apply. Even if the convention does apply, the Lords are likely to attempt to significantly delay the passage of the British Bill of Rights. The Conservatives do not hold a majority in the Lords and many of its members are former judges, solicitors or barristers who are likely to be sympathetic to the Human Rights Act.


In addition to these obstacles, there is also the question of what the British Bill of Rights should contain. This is contingent on whether the UK remains a signatory of the ECHR which, as aforementioned, is hotly debated in Cabinet. Bright Blue’s Associate Fellow, Rupert Myers, has proposed some recommendations in a blog this week. Bright Blue will be publishing a paper with further options soon.

Considering the many obstacles facing the creation of a British Bill of Rights it is perhaps unsurprising that the Government have failed to meet their deadlines. The Ministry of Justice is still committed to repealing and replacing the Human Rights Act. However, negotiating the significant constitutional and political obstacles is likely to be an ongoing and time consuming process.

What should be in the British Bill of Rights?

The inclusion of a British Bill of Rights’ in the Queen’s speech has become something of a running joke among many lawyers who are hostile towards the Government. Each year it’s mentioned, and each year little seems to happen to bring a bill into fruition. How, then, can we be optimistic that this year is different?

For one thing, by the end of the summer the European question will have been settled. It’s fashionable to say that there’s no link between the European Union and the European Convention on Human Rights (ECHR), but of course being a signatory to the convention is a prerequisite for membership of the Council of Europe, so like most things it isn’t as simple as it seems. If we remain in the European Union, there is little to no prospect that the Government will have any appetite for upsetting the consensus that ECHR membership is a requirement.

Bright Blue hopes that the British Bill of Rights better enshrines and enforces the Convention than the Human Rights Act, while bringing human rights into the 21st century. A British Bill of Rights should be an opportunity to toughen up human rights, and reset public attitudes towards them. If there has ever been an over-conflation of the European Union and the ECHR then the British Bill of Rights will resolve that.

Constitutional tinkering does not seem like David Cameron’s style, despite what feel like the constant referenda on constitutional issues, so hopefully the British Bill of Rights can do more than reinforce the status of Strasbourg jurisprudence as non-binding. The British Bill of Rights offers the opportunity to reaffirm Britain’s commitment to human rights, a renewal of vows after a rocky time in the public’s marriage to the principles behind them.

Right now there is a hot dispute about privacy and press freedom in the UK, and the invention by the courts of something like a right to privacy is ripe for assessment by our legislators. The boundaries of personal religious freedom and the provision of services are another hot-button issue. Enshrining a right to individual privacy would be a smart response to the technological changes of the 21st century.

Ideally, the British Bill of Rights will achieve cross-party support and agreement from the devolved assemblies. Only with full cooperation and consent can it become a truly British Bill, and one which avoids the constitutional perils of the devolved administrations. For this to happen, lawyers need to set aside their personal political gripes with the Government and contribute to the proposals. A British Bill Of Rights which reaffirms and renationalises rights should not be a controversial topic, but a source of enthusiasm. The question shouldn’t be “why scrap the Human Rights Act?” but “how do we improve upon the Human Rights Act?”.

Rupert Myers is an Associate Fellow at Bright Blue and political correspondent for British GQ



The Rt Hon Dominic Grieve QC MP: Conservatism and human rights

Speech to Bright Blue: Conservatism and human rights

Thank you for inviting me to come along here this morning to participate in your conference and in particular in the launch of the essay collection on Conservatism and human rights. I have to say, when I first heard that Bright Blue was doing this, I was absolutely overjoyed because from my point of view, I've felt slightly, in the course of the last eighteen months, that I'm in danger of turning into one of those CDs which has got caught with a scratch and just going on and on and on about the same theme. As I once said to one of my colleagues in the Cabinet, it would be very nice to get a life again. This was because of course I parted company with the Prime Minister over the issue of adherence to the European Convention on Human Rights and the Government's proposals in respect of a bill of rights.

What excited me so much of seeing the papers written in Conservatism and Human Rights in the essay collection was this was really breaking new ground, booking new topics and perhaps, dare I suggested, getting away from an argument that I sometimes fear is in danger of becoming a little bit sterile. What I wanted to do this morning, then, at the risk of going over an old argument, was just to touch a little bit on this fundamental issue of our relationship with the European Convention because I think it's rather important in the way it colours everything else that we might be doing including this work being done by Bright Blue in looking at other areas of discrimination or indeed of human rights more generally.

The first thing I think we have to remember particularly as this is a think tank rooted in liberal conservatism is that traditions of liberty run really deep in conservative philosophical thinking. It isn't difficult, if you go along to what I would describe as a very traditional conservative audience, to start getting them quite misty-eyed if you start talking about the traditional liberties, starting with Magna Carta, Habeas Corpus, and the Bill of Rights of 1689. They are, indeed, rooted in our DNA, and I think a little further than that, rooted in a tradition of English ... I say, “English” with some diffidence, but I think one has to accept it starts with England, of English exceptionalism, a view that within the land and territory in which we live, there are fundamental values reflected in our political system and in the rights and liberties of the individual which we may have exported elsewhere but are very much our own creation.

I'm always mindful that there are other extraordinary treaties written in the middle of the fifteenth century by Chief Justice Fortescue who wrote a book for the son of King Henry VI, who was subsequently, I might add, murdered after the Battle of Tewkesbury, which was a manual of government that he'd seen. It was called De laudibus legum Angliae, in praise of the laws of England. Rather remarkably, if you go to this treatise, you will find a denunciation of torture and the fact that it is alien to our common law. You will find in it a praise of due process of law, a praise of limited government, pointing out that the King of England, unlike foreign kings, is not able to do whatever he wants because he is a political ... he governs a body politic, which can control his actions and, I think in a way, most remarkably, you see his statements about trial by jury, which he says is an excellent principle for the protection of the individual. He goes on, rather remarkably, to say that he would rather see twenty guilty men acquitted than one innocent person wrongfully condemned.

That tradition runs through the conflict between king and parliament in the seventeenth century, the petition of right, Lord Mansfield's judgement in Somerset's case, sometimes seen on slavery, sometimes seen as being a great model of liberalism, but actually it was approached from a thoroughly conservative angle. He just said there can't be slaves in this country because there never have been, and the law of the common law does not allow it; and of course on through the nineteenth and twentieth century to the aftermath of the second world war. In the aftermath of the second world war, we did do something very different. When Eleanor Roosevelt came along and said that she wanted a Magna Carta for the twentieth century, we concluded, along with our European partners that had survived the second world war and were free countries rather than under communist tyranny, that we were going to try to actually crystallise what was an aspirational document, the UN Charter, into a document that really conferred rights, which was the creation of the European Convention on Human Rights.

Not surprisingly, at the time we did it, there was a lot of controversy about whether it was right that we should do it or not. There was a wonderful Foreign Office memo which says "to allow governments to become the objects of such potentially vague charges by individuals is to invite communist crooks and cranks of every type to bring actions." A lot of anxiety that it was loosely worded. A lot of anxiety that it would be open to judicial interpretation by, of course, ultimately, an extraterritorial court. We eventually signed up and, indeed, its greatest proponent was David Maxwell Fyfe, who was both a Conservative Attorney General and subsequently a Conservative Lord Chancellor. Why did we do that? I think we did it because as well as our national tradition of exceptionalism, the United Kingdom in the two hundred years leading up to the second world war had become totally enmeshed in the international system.

We were a trading nation and even at the height of our imperial power, we had a keen understanding that our own country was very small by global standards and that its power depended as much on trying to change people's behaviour as all asserting power over them. I once asked the Foreign Office if they could tell me how many treaties the United Kingdom is adherent to. They got into a terrible state about this and they all disappeared down into the bowels of the Foreign Office and they came back and they said they were very reluctant to go back beyond 1834 because their records might not be accurate. Since then, their figure was 13,200 treaties that the United Kingdom had signed and ratified, and perhaps more tellingly, over 700 had an arbitral mechanism for resolving disputes over interpretation.

Of course these range from the UN. charter, the International Convention for the Law of the Sea, the European Convention on Human Rights, dare I say, I won't dwell any further about it or our treaties of accession to the European Union and the European Court of Justice in Luxembourg, but that's about all I'm going to say on that aspect of Europe. Why are we signed up to all these treaties? We signed up because we believed that it was important to create a mesh of mutual obligations which raised the standards of behaviour, not just for ourselves but for other people.

Over the years, those standards of behaviour have shifted. They're not just about how one state behaves toward another state but, as was shown in the UN. Convention and in the European Convention on Human Rights, how a state behaves towards its own citizens, a critical change from the Westphalian model, which said that ultimately what a state does to its own citizens is entirely a matter for itself. President Putin in a sense establishes in his intervention in Syria, which is the Syrian Government is responsible for its own citizens and he just goes there to pursue his own foreign policy, regardless of its implications.

My view is that, one then has to look at how the convention has worked since. Sixty five years on, it does seem to me that the convention has been a remarkably successful document, indeed so successful that when the Conservative Party published its paper suggesting that we should leave it, it had to acknowledge ... and I think I've got the quote right, that it was an entirely sensible statement of principle that should underpin a democratic nation. Unfortunately, we as a party have then gone on to accuse the court in Strasbourg of subverting the intentions of the draftsmen and because of that, that is our principle argument why we might want to pull out.

As you'll be aware, the only paper we've seen so far on the subject published in October 2014 ... we still wait for the famous bill of rights, that document that is due out at some point but not until well after the referendum, I suspect, is that they want to clarify rights, particularly under article three and eight, that's torture and right to private and family life, and confine it to serious matters that should be determined by parliament as to that threshold, and potentially break the link with the Court of Human Rights in Strasbourg altogether and have a wholly, home-grown, national bill of rights, I suppose in keeping with that English exceptionalism which I touched on at the start of my talk.

I think that that is a mistaken approach. I'm reassured that even Michael Gove may think it's a mistaken approach because he's rather rowed back on it, although he still told the parliamentary committee that he wasn't 100% sure that we might not have to withdraw from the convention. My reason for thinking that the party is mistaken is that, of all its faults, it does seem to me that the convention has stood the test of time. Not only has it stood the test of time but it has been the most powerful and effective lever for promoting human rights on our planet. I haven't got time this morning to run through a lengthy list, but it is perhaps just worthwhile highlighting a couple of cases. Just consider, back in the early seventies the court removed the rights to discriminate against children on the grounds of their legitimacy.

Dudgeon in the United Kingdom, on homosexuality in Northern Ireland, the judgement, of course, which was far more important outside of Northern Ireland than in other countries, particularly in Eastern European after they signed the convention. After all, in England and Wales, we had decriminalised homosexuality some time before. More recently, in Russian, establishing the principle that people trafficking is a form of slavery and, therefore, not only is it something which must be criminalised, but there must be a positive duty on the state to try to suppress it in exactly the same way as we did with slavery in the late eighteenth and nineteenth century.

Of course, all these things and developments highlight the fact that the convention is, to quote its detractors, who seem to use this term rather frequently, a living instrument. If it wasn't a living instrument then none of the judgments I've just given you would ever have been able to take place because the standards to be applied to the convention would have been the standards of 1950, when discrimination on the grounds of illegitimacy, criminalization of homosexuality were perfectly permissible and people trafficking didn't exist as a phenomenon at all. What's happened in each of those cases is that the Court of Human Rights has been able to interpret the Convention in light of current social standards and circumstances. This appears to be something which comes in for a lot of criticism from some traditionalists, but I have to say that without it, it's very difficult to see how, in fact, the law could be made to work at all.

When we look at this, we might also want to consider the cross-fertilization that has taken place between the court in Strasbourg and our own courts. It shows that, in fact, the working together of two different traditions of jurisprudence can be very effective. Take most recently the question of hearsay in criminal cases. There was a case called al-Khawaja in Strasbourg, which suggested that our hearsay rules might be unacceptable. We then countered with another judgment in a case called Horncastle and we persuaded the court in Strasbourg to change its view. Of course, sometimes the Strasbourg court simply comes to a conclusion which is different with our own court altogether, but the examples are not necessarily all one way. We may get credit for the need, I claim, of the court's decision on prisoner voting as being an excessive interpretation of the convention, of not giving the United Kingdom a sufficient margin of appreciation in order to make up its own rules.

I have to say that in the last five years, I have never had a single complaint about the decision of the Strasbourg court to condemn the United Kingdom for its blanket policy on DNA and fingerprint retention in S and Marper, notwithstanding the fact that the House of Lords had signed it off as being completely acceptable. That's not to say that all is perfect with the Strasbourg court. I don't think it is.  It's a court that has grown from an idea that it might handle a half a dozen cases a year to one which, at its worse point five years ago, had a backlog of 150,000 cases. The court was drowning under the impact particularly of the arrival of states in Eastern Europe with no rule of law tradition at all.

In fact, it has succeeded partly because of the work of Ken Clarke when he achieved the Brighton Declaration in 2012, in entirely transforming itself, reducing its backlog now to 60,000 cases and with the insertion of the preamble into the text of the convention, asking the court, reminding it to allow national courts and parliaments ... that it is national courts and parliaments who are primary applicants of the convention and not the court itself, which is the longstop. There's a remarkable change, I think, which has been taking place in the way in which the court approaches its workload. Previously, it had probably been micromanaging a bit too much, partly because of its deep concern about the Eastern European countries which had joined and where the rule of law appeared to be so fragile. As a consequence of that, we get cases like that on political advertising, where interestingly enough, the animal defenders, the court agreed that the United Kingdom's interpretation of freedom of expression to limit the right to political advertising was completely acceptable, even though when it had first considered it, it thought that it was not because it was an excessive restriction.

Then, we just have to consider what's going on elsewhere. I always find myself a bit worried when I discuss human rights issues. It seems to me there's a little bit too much of the, ‘me, me, me’ going on, and it becomes an entirely introverted discussion about the United Kingdom or even, for that matter, just England. We ought to consider whether the convention's working. We also have to look at what it's doing elsewhere. We don't live in a bubble. At the moment, just to give you an idea, in the course of its history, 2,400 of the judgments of the Court of Human Rights have been against Turkey. Forty three percent of all cases on the freedom of expression have concerned Turkey, which have gone before the court.

In a moment, you won't be surprised to learn that a lot of its workload concerns countries like Russia and the Ukraine, and indeed, Georgia, Azerbaijan. The public defender in Georgia told me ... he's a sort of ombudsman. He said as far as he's concerned, he could not do his job without the convention because ultimately, even though the rule of law was very fragile in his country, the Georgian Government believed in its membership in the Council of Europe, saw it as an important statement both of the intent and status, and would therefore comply with judgments. That was the only way in which he was able to get redress for the citizens who came to him with violations of human rights, usually by state actors, often the police or other public authorities.

Nor, I think, is the suggestion that the convention is now worthless because there's a failure of implementation decisions. I don't think that stands up to scrutiny either. It's true there's a backlog of about 11,000 cases which haven't been implemented. Russia ... Italy is the worst culprit, but that's because of the length of time it takes to get its cases heard. Actually, in terms of egregious breaches, it's undoubtedly the Russians, and I regret to say that at the moment, the time it takes to get a decision implemented against the Russians is about ten years, but they do eventually pay off damages to the people whose rights have been violated.

Other countries like Poland, Hungary, Romania, and Bulgaria also had poor records but the evidence is overwhelming that the convention is working to improve their systems. Of course, it's not just convention states that benefit from the existence of a convention. Take that great popular bugbear of the Daily Mail, Mr. Abu Qatada, something which is likely to make the hackles rise on the napes of the neck of the average Conservative voter. Mr. Qatada, as you recall, we eventually deported to Jordan. The Daily Mail thought it took far too long and cost far too much money, but the simple fact was that in deporting him to Jordan, we eventually got rid of him because the Jordanians entirely changed their criminal justice system in respect to evidence in order to ensure that no evidence could be accused against him which had been obtained under torture.

It must represent one of the most tremendous victories for those who wish to see torture removed off the face of our planet, and it was achieved entirely because the United Kingdom was prepared to obey the rules, and not as the Daily Mail recommended, to chuck Mr. Qatada on the next plane, regardless of the views of the Strasbourg Court. That's why I take the view that the convention is of the utmost value to us. If we are prepared to work within the context of the convention, then, as this tremendous booklet shows, we can start thinking about other areas of rights which need to be addressed. Interestingly, as the last session demonstrated, we're beginning to do it. After all, the Equality Act could have gone into a bill of rights but we chose to do it as an equality act.

On the face of it, there are problems with the Equality Act. I have absolutely no doubt about it, and we've had some recent cases about issues of the balance of the way it works. Nevertheless, it seems to me that it's working well. The law is developing. All that is being done entirely in conformity with our adherence to the European Convention on Human Rights. In the paper which has just been published, there are a number of essays on challenges posed dealing with the problem of refugees in the mass migration, an intensely political issue, which, on the face of it, highlights severe shortcomings in the way in which the UN Convention on Refugees operates.

We have a discussion on LGBT matters, which we have just listened to this morning. For example, there is a whole chapter on the duty of rescues, and that struck me as quite relevant because the one thing it didn't have was the question of the international dimension in the duty of rescue, which of course came very much to the fore in the decision which was voted down by the House of Commons but which the Prime Minister wanted to pursue, of invoking the Doctrine of Humanitarian Necessity to take military action against President Assad. Highly controversial, because that doctrine is not recognised in some sections of international law. It's impossible to speculate whether the outcome in Syria would have been better or worse had we taken such action.

Finally, an excellent chapter by Malcolm Rifkind on the investigatory powers bill which, as chairman of the ISC, is a subject which I know is highly controversial, very complex, but one where we as conservatives have to somehow try to strike the right balance between security and privacy, and I believe are in a position to do just that.

I promised I would speak for no more than half an hour and I suspect my half an hour is coming up, so I'm going to bring my remarks to an end, but I really want to repeat again what I said at the beginning. As conservatives, liberal conservatives, I think we would do well to remind ourselves that we are the heirs to a great tradition, one which I think has a lot of traction outside of the Conservative Party or indeed conservative circles itself and one for which we are instinctively respected.

If we want to build on that, we need to look at the totality of the architecture of rights and we need to do that most conservative of things, which is to conserve and then build on what we have conserved. In that context, my view has always been absolutely clear in my mind that to start to knock down the architecture of the European Convention on Human Rights in the, to my mind, rather deluded belief that there is a better tomorrow, an easier tomorrow if you do it is, I'm afraid, a delusional mirage.

Rather, what we should do is accept the frameworks in which we operate, seek, of course, as we did at Brighton in the Brighton Declaration, to change those if we think it's necessary to do so by negotiation with our partners, and also to use the creative engagement, even if sometimes it irritates us a little in order to decide how we ourselves take rights forward in this country. If we do that, then we're doing exactly what a Conservative Party should be doing, which is striving to look at our national picture and to do good for our fellow citizens. Thank you very much.

Conservatives should support the Human Rights Act

The Government is promising a consultation on repealing the Human Rights Act (HRA)  and replacing it with a British Bill of Rights. Arguments about this proposal have been raging for the best part of 10 years. The policy stems from David Cameron’s time as Leader of the Opposition – initially a useful soundbite to wrong-foot the Labour Government of the day and then during the Coalition years to outflank the UKIP challenge. 

But the plans were hidden away on page 93 of the 2015 Conservative election manifesto. Originally believed to be a vote-winner, they didn’t feature in the General Election campaign after private Conservative Party polling revealed it wasn’t popular and Lynton Crosby decided to bury it. 

Instead of trying to turn a piece of political trickery into a coherent policy for constitutional reform, there are many reasons – political, principled and pragmatic – that the Prime Minister would do much better to quietly dump this policy. 

From its inception, this project has been about downgrading human rights protection. To date, every policy suggestion from Ministers would see crucial protections and enforcement mechanisms swept away. Yet this agenda badly undermines past Conservative thinking on rights and freedoms, sits at odds with the national interest and public attitudes, and threatens our delicate constitutional settlement. It also faces fierce opposition in both Houses of Parliament and on the Conservative backbenches, and would set a dangerous global precedent with untested repercussions.

Conservative human rights

From the campaigning activism of William Wilberforce and Winston Churchill’s desire to see “the enthronement of human rights”, to the heroic efforts of the Conservative shadow home affairs and justice teams in stopping the worst excesses of Blair and Brown’s authoritarianism, there is a proud tradition of Conservative support for human rights. 

In 2010, the Conservative-led Government made some good early moves. Proposals for ID cards were scrapped, the 28-day pre-charge detention limit reduced, equal marriage was passed and a Modern Slavery Act enacted. At the Foreign Office, William Hague set in train new initiatives around sexual violence in conflict. But Cameron’s misnomer, ‘Labour’s’ Human Rights Act, deliberately misrepresents a mixed political heritage. It ignores the vital role that Conservative politicians and lawyers played in drafting the European Convention on Human Rights (ECHR), creating momentum behind its incorporation into UK law and then in helping to shape the HRA as it passed through Parliament. 

Incorporation of the ECHR had previously been attempted by key Conservative figures. In 1976 the Society of Conservative Lawyers recommended that “the ECHR should be given statutory force as overriding domestic law”. In 1987, Conservative MP Edward Gardner introduced a “Human Rights Bill to incorporate in British law the ECHR”. By the time the HRA reached its concluding stages in 1998, the Conservative front bench expressed the hope “that it will be implemented effectively, to the benefit of the citizenry as a whole”. In 2009 Conservative Jesse Norman found it was “impeccably Conservative” .

A successful modern Bill of Rights

The HRA is a modern Bill of Rights that has worked extraordinarily well in protecting the rights and freedoms of ordinary people in the UK. While the headlines dwell on cases concerning suspected ne’er-do-wells, the real story is the countless people who have held the State to account where it has overreached or failed to protect – most recently, the families of the Hillsborough victims. 

Liberty uses the Act every day to fight injustice. Many cases are resolved with a letter to a public authority concerning their perceived failings under the Act. But where cases do progress, the Act works to end injustice and bring about crucial changes in law and policy that make Britain a fairer and freer place. 

Over the past 15 years, it has benefited thousands of individuals, from victims of rape, slavery and domestic abuse, to journalists, minority ethnic groups, members of our armed forces and those with disabilities and mental health problems.  

Nevertheless, since its inception there has been a steady drumbeat of criticism of the HRA in the tabloid press and unsubstantiated charges are repeatedly made against it, including that there has been ‘rights inflation’, that trivial cases succeed where they shouldn’t, and that the Act undermines parliamentary sovereignty. 

Rights inflation is a myth. Our courts and Strasbourg have stuck doggedly to the 15 rights contained in the Convention and genuinely trivial cases don’t make it past the court-room door.  

The bogus idea that the HRA threatens parliamentary sovereignty is thankfully gradually being demolished. Yet the notion that Strasbourg judgments could be treated as advisory-only still carries favour. In his essay for Bright Blue’s recent publication, Conservatism and human rights, Damian Green MP advocates the motto “ECHR yes, ECtHR not always”. Yet elsewhere Green states that any replacement British Bill of Rights must not put the UK in breach of its Convention obligations. Both ideas cannot hold. It is simply not possible to be part of the Convention system and pass primary legislation that requires Strasbourg’s judgments to be ignored by the Legislature. The Council of Europe confirmed this in a rare response to the Chris Grayling strategy paper in 2014.

Dangerous attack

Of all the proposed reforms, the most dangerous is the switch from a ‘Human’ Rights Act to a ‘British’ Bill of Rights. This change is neither pedantic nor cosmetic. The animating force of the campaign for the British Bill of Rights has been a desire to rip up the universal nature of human rights protection - removing it from certain groups, including non-citizens and members of the armed forces serving overseas. These policies are contained both in Chris Grayling’s 2014 strategy paper and a draft Bill penned by Martin Howe QC and annexed to the Bill of Rights Commission report. 

The Howe Bill separates human beings into three categories and identifies different sets of fundamental rights protections for each. UK citizens are given full rights, EU citizens are entitled to rights provided by core EU treaties and the third category, ‘non-citizens’, will be entitled to only “the rights and freedoms in the Bill of Rights save for those set out in Articles […]”. The rights non-nationals would be denied is left ominously unspecified. 

Far from injecting ‘common sense’ to the human rights framework, this constitutes an ideological attack on it. In 1930s Europe, the problem was not that nobody’s rights were protected, but that rights protection varied wildly depending on status, race, gender, religion and other arbitrary features. The Convention and the HRA were our continent and our country’s response to the atrocities that can be inflicted when rights are divided and apportioned in this way. The heroic wartime generation intended that human rights would be universal, inalienable and indivisible for all of time. 

Human Rights have public support

As the substantive policies put forward by Chris Grayling and others have been examined and rejected, the Government has started justifying its plans on the basis that human rights are unpopular. 

But there is no evidence of this. When the Bill of Rights Commission consulted nationally on replacing the HRA they found that the majority were not in favour of repeal. This really is unsurprising. The Act encapsulates values and principles with deep roots in the national psyche, and exists to hold the power of the State to account for abuse, negligence and mistreatment. 

Everyone can pick an individual judgment they disagree with, but no Bill of Rights anywhere in the world can boast to have produced universally popular judgments. Bills of Rights by their nature must protect those at the margins, including those with odious views and behaviours. 

If Government is genuinely worried about the Act’s ‘bad press’ and supports human rights as it claims, it could use its platform to put the record straight. Government spent £150.7 million on its own PR last year, and recently found £9 million to controversially fund a leaflet putting forward its view on the EU. Yet the British people have never received any Government information on the rights they have under the HRA. 

Division in an already shaky United Kingdom

Worse than being unpopular, repeal of the Act could trigger nothing short of a constitutional crisis. The HRA was woven into all three original devolution statutes and integral to the Belfast/Good Friday Agreement. Human rights matters are devolved, which means that it is likely impossible to alter, let alone repeal, the HRA without the consent of all three devolved legislatures. Yet in the past 18 months, they have all have passed motions opposing repeal, with the Scottish Government making clear it won’t negotiate on this issue. 

Without this consent, the Government’s only feasible option for delivering the weaker model of rights protection it desires would be to repeal the Act in England and create an 'English Bill of Rights'. Surely English MPs and their constituents wouldn’t stand for this – why should someone have lesser human rights protection in Carlisle than in Cardiff? If the ‘One Nation’ Conservatism to which the Prime Minister lays claim means anything, he must rethink this policy.

In Westminster

Many believe that if Britain votes to stay in the EU on 23rd June, 2016, the PM will sacrifice the HRA to satisfy the frustrations of his Eurosceptic colleagues. But on this again he would be wise to reflect. The EU is nothing to do with the Council of Europe and the ECHR. One of the rallying cries of the various Leave campaigns has been suspicion of unaccountable Government and the perceived democratic deficit it creates. The HRA is one of the few instruments that holds government to account and levels the playing field between the State and the individual. 

You don’t need to look far to see that Eurosceptics can and do support the HRA. The famously Eurosceptic conservative commentator, Peter Oborne, co-wrote The Conservative case for the HRA for Liberty in 2009. Fellow Outer Boris Johnson MP has commented that it was “very hard to see how individual MPs would want to give their constituents less protection than they currently enjoy under the HRA”. Trenchant Eurosceptic David Davis MP has written that “the proposed British Bill of Rights would do nothing to improve the liberty or security of British citizens; indeed, it may do much to weaken them”. 

And Conservatives that do oppose the Strasbourg Court would be unwise to support scrapping the HRA. A weakened British Bill of Rights would result in increased supervision of the UK by the Strasbourg Court, likely leading to many more judgments against the UK Government.

It is widely believed that repeal would not  pass a vote in the Commons, let alone in the House of Lords. This was certainly the feedback received by Conservative whips immediately following the 2015 election and the reason Government abruptly stopped briefing that the HRA would be repealed in the first 100 days. 

Britain’s reputation

Beyond our borders, scrapping the Act would send a regressive and dangerous message. Britain played a huge role in the birth and development of the universal human rights movement, which despite some glaring setbacks has over the past 60 years transformed lives across the planet. 

Surely our best answer to the nihilistic murder-fuelled ideology of Daesh and other despotic regimes is to promote these values all the harder. When you step back, isn’t it faintly absurd that the leaders of a country which gave the world Magna Carta, defeated the Nazis and drafted the European Convention on Human Rights may choose to repeal it and inadvertently set in train the dismantling of human rights systems worldwide?

The Government tries to claim that Britain’s actions do not have global consequences. But this is simply not true. Russian citizens have pleaded with the UK Government to change policy. In December of last year, the Russian Duma passed a law to permit its judges to ignore the ECHR. Surely, that our Government is inspiring Putin’s assault on the Rule of Law is enough to stop this policy in its tracks. 


Bills of Rights by their nature are intended to safeguard universal rights in a permanent fashion, outlasting individual administrations. They are meant to represent a set of values that all democrats can unite around and agree upon. As Toby Young has argued, if a Conservative Government re-drafts it, what is to stop future governments doing the same? 

There is no historical precedent in the democratic world for one political party drawing up a Bill of Rights and introducing it, to widespread political opposition, on the ashes of another. 
If Cameron has his mind on his legacy, he would do well to remember that history is kinder to PMs who prioritise the national interest over party politics. Attempting the repeal of a world-leading and staggeringly effective Human Rights Act that is supported across the world would show an arrogant disregard for his forebears and his Office.

Bella Sankey is the Director of Policy at Liberty


Why conservatives should defend human rights: The case of racial equality

Considering the experience of black and minority ethnic people in the UK, conservatives have at least two reasons to support human rights. First, human rights should amend if not replace conservative support for a narrow vision of basic freedoms. Racial discrimination has been historically defended on grounds of individual liberty, an argument that that was explicitly affirmed by the Conservative Party until at least the 1970s. Second, human right principles are a philosophically and pragmatically better response than a prominent conservative alternative to what John Rawls calls ‘reasonable pluralism’.

Conservatives since Burke tend to be sceptical of the idea that human rights might be grounded in universal claims about human nature, claims that appear to rest on curious metaphysical claims or ‘nonsense upon stilts’.[1]

At the same time conservatives are deeply committed to the rule of law, and in most cases support the actual content of human rights, even where there is scepticism about their grounding in abstract philosophical claims. Instead, conservatives point to custom or tradition, and suggest that in England (and Britain) a long tradition of rights can be traced back to Magna Carta and further elaborated through incremental parliamentary and social change, notably including the ‘Glorious Revolution’.

There is reason to doubt the accuracy of this standard Whiggish account – an account shared by many liberals and conservatives alike. Instead, I will suggest, conservatives should much more explicitly defend human rights based on the experience of the treatment of ethnic minorities in Britain. 

The need for race relation legislation 

Conservatives should be wary of interpreting common law as inevitably protecting people’s civil liberties and viewing human rights as a corrupting influence on this superior tradition. Under common law English men had the freedom to discriminate on grounds of race, a freedom that was unfortunately exercised over the course of history until the 1960s. As related by Hon. Justice Rabinder Singh, The West Indian cricketer Learie Constantine had in 1944 challenged the Imperial Hotel for refusing to serve him, but the case carried no further weight or protection under common law. At a reception marking the 50th anniversary of the first race relations act in December, Paul Stephenson, the leader of the Bristol bus boycott, related how he was kicked out of a pub for daring to order a half pint of beer, and how numerous police arrived to escort him to prison and then charged him in court with refusing to comply with the publican’s racist demand that he leave.

Cases like these explain why Parliament passed various race relations acts in 1965, 1968 and then 1976. The legislation needed updating in such quick succession because the first act was so weak (in part because of vocal Conservative opposition to it), failing to protect black and minority ethnic people even from the infamous ‘no blacks, no dogs, no Irish’ signs, or from discrimination in the labour market, where it remained legal not to employ someone because of the colour of their skin until the 1968 Act.

At that December reception Conservative MPs including Maria Miller and Kwasi Kwarteng expressed their disappointment but also bafflement at their predecessors’ rejection of race relations legislation. In one way today’s Conservative MPs are right to think that many of their predecessors (and some Labour MPs of the day) were more motivated by explicit racism, but there’s two further lessons for contemporary conservatives.

First, that high-minded or general reference to the ‘rule of law’ or even ‘basic liberties’ have historically proven insufficient to protect the rights and freedoms of disadvantaged and less powerful groups. It’s worth reminding ourselves that rights are always claimed by the less powerful against overweening authority – whether barons on the fields of Runnymede, sans-culottes against the ancien regime, ethnic minorities against racist landlords, or indeed those who today appear vulnerable to mistreatment or even torture by another state, typically (though not always) minorities.

Individual liberty and discrimination

The second lesson for conservatives is that there is a serious danger in appealing only to custom or, indeed, historic Englishness to defend minimalist civil liberties, and not to support human rights. In arguing against the 1968 Act, Enoch Powell’s argument that the black man would have the ‘whip hand’ over the white man was grounded in a view that white English men had the ancient liberty or freedom to discriminate. Powell’s argument was that liberties were for English men only, and not universal.

But however noxious Powell’s particular phrasing, his view that race relations legislation was contrary to English liberty was a key plank in the Conservative Party’s opposition to the 1968 Act. In his intervention in the Commons on 23 April 1968, Reginald Maudling explained the Opposition’s view: “we believe that it definitely encroaches on individual freedom and individual liberty”.[2]

The point of going over this history is not to condemn the Conservative party of the 1960s, or to gloss over reasonable concerns about the efficacy of the 1968 Act. Rather, these arguments are simply a recent example of the argument that liberty entails or requires the ability to discriminate. This was in fact, the more historically common interpretation of English (later British) civil liberties, and not only among conservatives, stretching back at least as far as parliamentary debate and popular pamphlets in the late 17th century that defended the expansion of the enslavement of African people.[3] At the same time as the Glorious Revolution Parliament followed democratic opinion in arguing that the Royal Africa Company’s monopoly on the slave trade was an infringement on English men’s liberties, in this case the freedom to trade in enslaved Africans.

Conservatives after Powell have of course rejected his claim that liberties are somehow unique to or prior for white English men, and it was Harold Macmillan whose ‘winds of change’ speech heralded the freedom of British colonies in Africa. At the same time, however, many conservatives hold to a version of the Whiggish view of the natural or inevitable development of rights first set into train at Runnymede 800 years ago, and have simply placed the various race relations acts within this wider story.

Universal rights 

Instead of seeing race relations acts as an organic and subtle change, we should probably agree with Maudling and view this legislation as a genuine break from a prior tradition. English men previously had the liberty to discriminate against others as a fundamental principle, with Magna Carta and later legislation clearly rejecting the idea that rights and liberties were universal or could be exercised by all. The idea of universal rights, is of course, a core plank of human rights.

By contrast, conservatives from Herder to Burke to Powell might be called ‘multiculturalists’: they believed that rights and customs were not universal, but rather attached to particular peoples and cultures with particular institutions and ways of doing things. An important strand of conservative thinking is resistant not only to the thought that human rights can be universally grounded, but also doubtful that non-English (or non-German or non-American or whatever) people will ever generally affirm English values and customs, including respect for civil liberties and the rule of law, unless they fully assimilate culturally and dispositionally. Powell was perhaps the ideal-type: he supported civil liberties because he was an Englishman, not the other way round. This is quite far from Kantian-influenced arguments about the role of reason in recognising the universal claims of all humans, and ably defended more recently by James Griffin

And it’s not just philosophers who agree about the universality of human rights. The United Nations now has a range of human rights treaties, including the first 1965 Convention on the Elimination of Racial Discrimination (CERD), and the vast majority of nation-states have signed up to these. Significantly, British conservative lawyers (including David Maxwell Fyfe) were the authors of much of this international legal framework, and remain some of its strongest defenders.

English (or British) Conservatives should therefore reject the idea that rights uniquely originated in the fertile soil at Runnymede, both because this tradition has proven inadequate for protecting the rights of ethnic minorities and because those rights are now accepted globally.

Perhaps more fundamentally, the conservative affirmation of liberty of opinion is understood to result in a diversity of views about what matters most, or what John Rawls has called ‘reasonable pluralism’.[4] Reasonable pluralism is a hallmark of an open society; it obtains when reasonable and rational people come to different conclusions or judgments about some of the most significant matter in our lives. Conservatives and liberals, atheists and Catholics may all have reasonable views about such matters, but cannot reasonably expect those with opposing views to simply conform to their position – at least not in an open society.

By way of a conclusion it is perhaps worth clarifying an important difference between the modern ‘multiculturalist’ tradition and the older conservative one. One of the things conservative critics of multiculturalism miss is that most of its defenders in fact hold quite strongly to a conception of universal human rights. While Runnymede and others have argued that we should recognise the historic and ongoing contribution of different cultures to British society, we have explicitly argued, most notably in the 2000 multi-ethnic Britain report[5] that human rights set a limit on how permissive the state can be with respect to cultural difference. In other words, we have argued that practices cannot be accommodated where they violate universal principles of human rights.[6]

The alternative is rather to view non-English or non-Christian cultures as being less committed to rights which instead originate in and can only be contingently grounded by dispositional deference to tradition. Conservatives are right to be sceptical of high-minded metaphysical arguments, but they should be equally sceptical of a fable in which civil liberties have naturally and uncontroversially evolved since 1215 (a fable described by the historian and Supreme Court judge Lord Sumption as ‘high-minded tosh’[7]). Especially in a context where ethnic minorities were denied their basic rights in recent memory, and where ethnic minorities will grow to one-third of the population by mid-century, conservatives should instead affirm the value of universal human rights as the best way to protect civil liberties and ultimately to ensure the long-term stability of British society and democracy.

Omar Khan is the director of the Runnymede Trust

[1] The phrase is Jeremy Bentham’s. See Waldron, J. (2009) Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man. London: Routledge.

[2] HC Deb 23 April 1968 vol 763 cc53-198; Maudling at column 154

[3] Pettigrew, W. (2015) ‘Civil Liberties and the Genesis of Racial Inequality: Freeing the Trade in Enslaved Africans’ in O. Khan (ed.) How Far Have We Come? Lessons from the 1965 Race Relations Act. London: Runnymede.

[4] Rawls, J. (1993) Political Liberalism. New York, NY: Columbia University Press.

[5] Often called the ‘Parekh report’ after its Chair, Lord Bhikhu Parekh. Commission on the Future of Multi-ethnic Britain (2000) The Future of Multi-ethnic Britain: The Parekh Report. Profile Books.

[6] As summarised in 2000, the Commission explained: ‘Negotiations over contested issues – for example, the content of the national curriculum, sensitivity to cultural diversity in the health service, the wearing of religious clothing at work, equality for women in the home – cannot take place in an ethical vacuum. They require ground rules that provide a minimum guarantee of protection for individuals and a framework for handling conflicts of interest. The argument in this chapter is that such ground rules are provided in part by international human rights standards’

[7] Sumption, L. (2015) ‘Magna Carta then and now’. Address to the Friends of the British Library, 9 March

Protecting human rights in the UK

There will rarely be a time at which the law could not more perfectly protect or enforce the rights and responsibilities of those who are obliged to follow it. The framers of the law are never flawless, nor do they do have complete knowledge. In political systems they have agendas, and the practices within the jurisdiction change. Despite these obvious statements, open-mindedness about upgrading the legislation that protects human rights is in short supply.

Public perception

Reform to the Human Rights Act has been continually delayed. In December, the Secretary of State for Justice, Michael Gove, announced that the plan to replace the Human Rights Act with a British Bill of Rights had been delayed for a second time. The consultation on the proposed changes is now expected later this year.

This is despite the fact that human rights reform would cost little, could be implemented almost immediately and should lead to a fairer, cheaper legal system. It has been a long time in the works, and has faced opposition ever since David Cameron made plain his concern over the Human Rights Act in 2007 by suggesting that Britain should "abolish the Human Rights Act and replace it with a British Bill of Rights, which sets out rights and responsibilities. The fact that the murderer of Philip Lawrence cannot be deported flies in the face of common sense. It is a glaring example of what is going wrong in our country. What about the rights of Mrs Lawrence? The problem for this Government is that the Human Rights Act is their legislation and they appear to be blind to its failings."

There is a long tradition of newspapers, media outlets and politicians damning the results of the Human Rights Act. The cumulative effect of these attacks has been to diminish the perception of the Act in the minds of the public and to raise alarm bells within the Human Rights industry at the Government’s appetite for reform. As Ken Clarke has warned, "It is the duty of politicians to stand up to the tabloids, to turn around and argue, not let them whip up feelings that are inaccurate.” This matters to more than just the public mood. Those looking to reform Human Rights law should begin by recognising the achievements of the Human Rights Act in protecting and advancing the rights of the least fortunate, and sometimes most unpopular.

An ongoing process of review and reform

Today, the Human Rights Act is the best legislation we have for ensuring the rights of individuals. Opponents to a British Bill of Rights have some grounds to be suspicious of change, given the sustained attacks that the Human Rights Act has received. Any good instrument which protects the most vulnerable will produce results which are unpopular. There is no point pretending that a British Bill of Rights will be a solution fit for all time, or one which will not protect those we love and loathe in equal measure. A British Bill of rights will, if it is well designed, lead to some results which are deeply unpopular.

To engage with the Human Rights industry, we must be honest in acknowledging the rights protected by the original Human Right Act, and not seek to pretend that a British Bill of Rights will be any more permanent a solution. Rather than tie ourselves to a document which claims to be perfect, the ambition of those drafting the British Bill of Rights should simply be to produce a better iteration in an ongoing process of review and reform. The British Bill of Rights should be the Human Rights Act 2.0, and as such its designers must appreciate, respect, and celebrate the features of the original where they work well. Only by doing that will we hold a serious debate in which a spirit of cautious optimism can replace entrenched concern from many human rights practitioners.

Rupert Myers is an Associate Fellow at Bright Blue and political correspondent for British GQ