By Mark Elliott
Professor of Public Law, University of Cambridge

It’s just over 20 years since the Human Rights Act 1998 (HRA), which gives effect in UK law to the European Convention on Human Rights (ECHR), came into force. Ever since, some politicians — even those who were instrumental in the HRA’s enactment — have criticised it. Some say it gives judges too much power. Others say that it’s not British enough because it imports European rights. Worse still, say some, the HRA gives European judges (in the European Court of Human Rights) too much power. It might be thought that one solution to some of these perceived problems would be to do away with the HRA altogether, replacing it with a British Bill of Rights.

The idea of a British Bill of Rights is certainly not new — such a possibility was considered by the Government-established Commission on a Bill of Rights, which reported in December 2012. More recently, we have had the Independent Human Rights Act Review. While the Review recommended some changes to the HRA, it did not suggest getting rid of it or replacing it with a British Bill of Rights. But precisely that possibility has now been put on the table by the UK Government.

What this would involve, and the extent to which it would result in a different approach from the HRA, would inevitably turn on the precise content of a new Bill of Rights in terms of how it would protect rights. But it is also important to consider what rights are to be protected — and to think about the extent to which a new Bill of Rights would afford a legitimate opportunity radically to alter the range of rights that are upheld in domestic law. For three reasons, the room for manoeuvre here is modest.

Limited room for manoeuvre

First, the Government intends that a new Bill of Rights would protect fundamental rights. It is important to recognise that what makes fundamental rights fundamental is the fact that they reflect deeply and widely shared understandings that transcend parochial domestic considerations. That isn’t to say that questions about human rights cannot raise questions that are politically controversial or culturally sensitive: the European Court of Human Rights, for instance, recognises this possibility, and extends a ‘margin of appreciation’ to individual States on certain matters to allow some room for divergence.

But recognising that difficult and contested questions can and do arise around the margins does not mean that we can or should regard fundamental rights as nothing more than the constructs of domestic politics and culture. Fundamental human rights are ultimately inferences drawn from the human condition and the respect that it warrants. Once we recognise this, we must also acknowledge the essentially universal nature of such rights. It follows that scope for a domestic bill of genuinely fundamental rights that departs radically from internationally acknowledged human rights standards must be decidedly limited.

Second, the Government envisages that the UK would remain bound in international law by the ECHR. This means that even if a new British Bill of Rights were to protect different or fewer rights than the HRA, or if the Bill of Rights were to confer weaker protection than is required by the ECHR, it would remain possible to seek redress in the European Court of Human Rights. And the UK would remain legally bound by any judgments against it made by that Court.

The upshot is that a Bill of Rights that diluted or removed domestic protection of some or all of the rights set out in the ECHR would make it more difficult for people in the UK to enforce such rights, but it would not enable the UK to breach such rights with impunity. Another way of putting this is to say that while a British Bill of Rights could grant extra rights, ie over and above those recognised in the ECHR, it could not entirely remove existing rights given that the UK would remain bound by the ECHR and subject to the jurisdiction of the European Court of Human Rights. It is, however, the case that if a Bill of Rights provided a lower level of protection than the HRA, this would frustrate the central policy aim of the HRA which was to ‘bring rights home’.

Third, other aspects of the UK legal system mean that in enacting a new Bill of Rights, the Government and Parliament would not have the luxury of starting with an entirely clean sheet of paper. For one thing, many of the rights set out in the ECHR also find expression in a wide variety of pieces of domestic legislation — a point made by the Government itself in its consultation paper. For another, many ECHR rights are echoed in the common law. This is a point that UK judges have often been quick to point out.

In the case of R v Secretary of State for the Home Department, ex parte Brind [1990] 2 WLR 787, Lord Donaldson MR (albeit arguably rather overstating matters) said that ‘you have to look long and hard before you can detect any difference between the English common law and the principles set out in the Convention’. In another case, Kennedy v Information Commissioner [2014] UKSC 20, Lord Toulson lamented some lawyers’ ‘baleful and unnecessary tendency to overlook the common law’ when considering human rights matters, his point being that the common law itself is a rich source of such rights. It would be going too far to argue that the recognition of (some) rights at common law makes human rights legislation — such as the HRA or a new Bill of Rights — unnecessary.

But the fact that rights are recognised and protected by the common law means that if, for instance, the HRA were to be replaced with a Bill of Rights that was in some respects less generous in terms of rights protection, the common law might fill at least some of the resulting gaps. Of course, Parliament, in a new Bill of Rights or otherwise, could also override the common law. But any attempt by Parliament to remove basic common law rights would be fraught with political risk and would raise very difficult questions about whether some common law rights are so fundamental that even Parliament cannot get rid of them.

Quintessentially British rights?

Many of these points are, at least to some extent, acknowledged by the Government in its consultation paper: it professes a desire to see that fundamental rights are upheld, commits to the UK remaining bound by the ECHR and places considerable emphasis on the role of the common law. All of which suggests that the underlying agenda is not to uphold an idiosyncratically British set of rights but, instead, to move away from the HRA model in significant respects when it comes to how rights are protected. This may explain why the Government’s document only seems to refer to two specifically ‘British’ human rights — the right to jury trial and a particular approach to freedom of expression.

For all, therefore, that the Justice Secretary — as he does in the foreword to the consultation paper — professes a desire to focus on ‘quintessentially UK rights’, the proposals are far more centrally concerned with the manner in, and the extent to, which rights are protected. This is clear from something else that the Justice Secretary says in his foreword: namely, that the new Bill of Rights will achieve ‘a clearer demarcation of the separation of powers between the courts and Parliament’. It seems, therefore, that the aim is not so much to identify and uphold a peculiarly British set of rights as to ensure that quintessentially British constitutional arrangements — most obviously parliamentary sovereignty — are reasserted.