Legal implications of human rights reform in the UK

von Tobias Lock

The return of a majority Conservative government in last week’s general election in the UK has made the Conservative Party’s plans for reforming human rights law in the United Kingdom a likely prospect. It is recalled that on 3 October 2014, the Conservative Party published its policy document ‘Protecting Human Rights in the UK’ which sets out its proposal to repeal the Human Rights Act 1998 (HRA) and replace it with a new British Bill of Rights. In addition, the policy document also raised the prospect that the UK might withdraw from the European Convention on Human Rights (ECHR). It outlines three main problems with the HRA:

First, the HRA is said to undermine the role of UK courts when deciding human rights cases. The requirement that national judges ‘take into account’ European Court of Human Rights (ECtHR) jurisprudence is said to lead to the application of ‘problematic Strasbourg jurisprudence’ in UK law.

Second, it is said that the HRA ‘undermines the sovereignty of Parliament, and democratic accountability to the public.’ Although the HRA affirms the sovereignty of Parliament, it is alleged that the requirement in section 3(1) of the HRA to interpret legislation in a way which is compatible with ECHR rights, ‘so far as it is possible to do so’, has led to UK courts going to ‘artificial lengths to change the meaning of legislation so that it complies with their interpretation of Convention rights’.

Third, the HRA is said to go beyond what is necessary under the ECHR because the ECHR does not require the UK to have any particular legal mechanism for securing ECHR rights, to directly incorporate ECHR rights into UK law, or to make ECtHR jurisprudence directly binding on domestic courts.

The position on the UK’s continued membership of the ECHR is less clearly formulated ...

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