Repealing the UK's Human Rights Act

Ever since the Human Rights Act came into force in the UK it has divided opinion.

Whose Human Rights Are Being Protected?

In recent years the subject of human rights has hit the headlines on a regular basis. Often the individuals concerned face criminal charges, are suspected of an offence or are seeking asylum in the UK. Amongst some sectors of the UK's population there may be a belief that human rights are contingent upon the individual behaving lawfully – or, perhaps, holding a particular nationality.

The Conservative Party’s Approach to the Human Rights Act

For several years prior to the 2010 General Election the Conservative Party had said that they intended to “scrap, replace or reform” the Human Rights Act if they came into power. Opposition towards the Human Rights Act tends to be on two grounds. Firstly, on the basis that the Human Rights Act gives too much protection to members of society who have behaved unlawfully. This could be by committing a crime or by coming to the UK on dubious or illegal grounds. Secondly, the Human Rights Act is considered by some to impinge upon British sovereignty by giving too much power to European judges.

The Human Rights Act was drafted to give effect in the UK to European law. As a consequence, it sometimes overrides UK laws and the decisions of British judges. It is not always easy to distinguish between opposition to the Human Rights Act because it is somehow “bad law” and opposition because it gives too much power to Europe.

The president of the European Court has been critical of the Conservative Party’s proposal to repeal the Human Rights Act and to bring human rights law back under the control of UK judges. He said that it would create a complicated legal situation and threaten the protection currently offered by European human rights law.

The Coalition Government and Human Rights

The UK’s coalition government comprises two parties with very different approaches to Europe. Although the Conservative Party represents the majority of the coalition, it was forced to give some ground to the Liberal Democrat Party during the negotiations leading to the formation of the coalition government. The Liberal Democrats have traditionally been more pro-Europe than the Conservatives. As part of the coalition government, the Conservative Party’s broadly anti-European approach appears to have been softened.

An immediate intention to repeal the Human Rights Act is not on the coalition government’s agenda. However, the coalition has said that it will explore the case for a UK Sovereignty Bill to ensure that the ultimate power to make decisions which affect the UK remains in the UK. The coalition government has also said that it will set up a commission into the creation of a British Bill of Rights.

European Human Rights Law or a British Bill of Rights?

The stated aim of a British Bill of Rights is to preserve and restore the rights and civil liberties which are fundamental to British society. Many of these civil liberties are considered to have been eroded in recent years. In addition to preserving – and enshrining in law – “British” rights and liberties, a British Bill of Rights could also incorporate the obligations contained in the European Convention on Human Rights. This new law could replace the Human Rights Act to ensure that European human rights law is implemented in a way which preserves the security and sovereignty of the UK. A new law could also redress the perceived imbalance in the current application of human rights law.

Nick Clegg, the Liberal Democrat deputy leader of the coalition government, has said that he intends to promote a better understanding amongst the public of the current Human Rights Act. By setting up a commission into the question of introducing a British Bill of Rights, the new government has delayed the decision on whether the current Human Rights Act should be repealed. Further, it has said that a new British Bill of Rights would not necessarily replace the Human Rights Act.

The decision not immediately to repeal the Human Rights Act has angered many Conservative party members. It may also alienate some supporters who believed that, by voting for the Conservative Party, they were voting for the end of a controversial law. Achieving a viable coalition government has led to compromises by both the Conservatives and the Liberal Democrats. Some of these compromises will inevitably anger supporters of the respective parties and lend ammunition to opponents who interpret the willingness to compromise as a loss of political integrity.