Will the Human Rights Act be scrapped?

'British Bill of Rights' put on hold until Brexit arrangements are confirmed

Liz Truss
Justice Secretary Liz Truss
(Image credit: Carl Court/Getty Images)

Government plans to scrap the Human Rights Act have been shelved until the UK's arrangements for leaving the European Union are confirmed, the minister for courts and justice has said.

In both its 2010 and 2015 manifestos, the Conservative Party pledged to replace the act with 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 UK," it said.

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Justice Secretary Liz Truss said last August that the government was committed to the pledge, but yesterday in the House of Commons, it emerged the new legislation could take a while.

Justice Minister Sir Oliver Heald said: "We are committed to reforming our domestic human rights framework and we will return to our proposals once we know the arrangements for our exit from the European Union."

He added it would be "some time" before a meeting is held with the Scottish justice minister to discuss repealing the act north of the border, as the government was prioritising Brexit.

"I think it important for us to sort out the EU side of matters and the exit from the EU before we return to that subject," he said.

Heald's comments raise the prospect that the act "may not be dealt with until after the general election in three years' time", says the Daily Mail. "But it spares Prime Minister Theresa May the potential headache of a troublesome parliamentary battle when she is focused on getting the best deal for Britain after the historic Leave vote".

What is the Human Rights Act?

Introduced by Labour with cross-party support in 1998, the act protects 15 fundamental rights and freedoms, including the right to life, privacy and free speech, which are all based on articles of the European Convention on Human Rights. The freedoms must be upheld by all public bodies and British courts and tribunals must interpret legislation in a way that is compatible with the rights enshrined in the convention.

Why do the Tories want to get rid of it?

Scrapping the act will break the formal link between British courts and the European Court of Human Rights and stop the act being "misinterpreted", say the Conservatives. They argue foreign nationals who have committed serious crimes are able to use the freedoms guaranteed under the Human Rights Act to justify remaining in the UK. They have also expressed "mounting concern" at Strasbourg's attempt to overrule decisions made by parliament and the courts, such as lifting the ban on prisoners' voting rights or banning whole-life sentences for serious crimes.

What would replace it?

The Conservatives plan to introduce a "British bill of rights" rooted in "British values". The Human Rights Act contains a "laudable" set of principles for a modern democratic nation, says the party, and it does not plan to introduce new basic rights. Instead, its aim is to "restore common sense and tackle the misuse of the rights contained in the Convention". The Conservatives published a short strategy paper outlining some of the key ideas in 2014 and promised to publish a full draft bill before the 2015 general election, but it never materialised.

What will this mean in practice?

The Conservatives argue their reforms will ensure the European Court of Human Rights will no longer be able to overrule judgments made in British courts and will make "the Supreme Court supreme". Former Liberty director Shami Chakrabarti said the proposal "is the gravest threat to freedom in Britain since the Second World War".

What's standing in the way?

The Justice Secretary faces several serious stumbling blocks, including the Commons, the House of Lords and the devolved assemblies. "Only a very brave betting man would put money on the Tories accomplishing it," says Ian Dunt, the editor of politics.co.uk.

The Commons: Commentators predict a backbench Tory rebellion against the bill and with May only holding a wafer-thin majority in the Commons, "room for parliamentary manoeuvre could easily be restricted by a relatively small number of rebels", says The Guardian. Several prominent Tories have already voiced their criticism, including former justice minister Ken Clarke and former attorney general Dominic Grieve QC, who warn the move could undermine the rule of law and risks putting the UK into conflict with the European court.

The Lords: The Tories are outnumbered in the House of Lords. "Now that the coalition is over, we can expect that Lib Dem voting block to shift firmly over to the opposition side on matters like this," says Dunt.

The Scottish Parliament and the assembles of Wales and Northern Ireland: Scotland's First Minister Nicola Sturgeon has made her views on the matter clear and vowed to oppose the plans, something which could lead to a "complete standoff" between Westminster and Holyrood, a source within the SNP said. The party has been holding secret talks with Tory backbenchers in order to boost cross-party opposition, the source added.

The plans also contravene various national agreements. The Sewel convention dictates that parliament cannot legislate for devolved matters without the consent of Scotland and Wales and to push the bill through against this "would be horrific", said one legal expert. In Northern Ireland, abolishing the act would place the UK government in breach of the Good Friday Agreement, a direct violation of international law that would "plunge the UK into a constitutional crisis", says The Guardian.

To get around this, the Prime Minister could choose to apply the law only to England, says Dunt. "Given how immoveable the situation seems, that might be the only viable option," he adds. But that could set a dangerous precedent, stripping some citizens of rights held by others in the union.

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