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On the surface, the Tories’ plan to repeal the Human Rights Act seems insane, ethically problematic at best. The Human Rights Act was one of New Labour’s greatest achievements, and if nothing else, it was symbolic of the UK’s commitment to fairness and basic human decency, so what possible justification could there be for undoing that?
The Tories are planning something a little more complex than repeal. It involves ultimately replacing the Human Rights Act with a ‘Bill of Rights and Responsibilities’ that’s expected to contain the text of the original Convention on Human Rights. The government will then take that Bill to the European Council on Human Rights, and if it’s rejected the UK will withdraw from the ECHR. Confusing, no?

The important question is why? Clearly there must be differences between the Human Rights Act and the proposed Bill of Rights that warrant such a proposal, even if both apparently have the same text. Yes, it’s been argued the law should change to allow the deportation of foreign criminals, but that particular issue seems too insignificant to be the real motive. It is certainly not a strong enough reason to repeal the HRA.

The HRA is largely about setting a standard of fairness, welfare, decency and duty of care, whereas a typical bill of rights is concerned with protecting the rights of individuals against the state. The other difference is the term ‘Bill of Rights’ implies something that’s not so legally binding, and I honestly don’t see how it could be upheld. Perhaps it’s not supposed to be upheld, but instead over-ruled by politicians whenever it proves inconvenient.

My next question is whether the ultimate aim is a withdrawal from the European Convention on Human Rights, using the Bill of Rights as a means to achieve that, and a weakening of the protections. The answer to this is hinted at in Chris Grayling’s ‘report’, which should be read as a business case for the repeal. It talks of limiting the use of the HRA to ‘serious cases’ and ‘tackling the misuse of rights’. What exactly is meant by this? My (limited) understanding is the European Convention on Human Rights and the HRA outlines what the law is, and it’s English law that determines how the HRA is interpreted. In other words, it’s the British courts, not politicians, who currently decide whether the HRA is being ‘misused’.

It’s also not certain the HRA can be repealed. The first obstacle would likely be most MPs, including an unknown number of Conservatives, voting against it in Parliament. Supposing it does get through the House of Commons, the House of Lords could also prevent the repeal. Even if the House of Lords are under an obligation to pass whatever law was mentioned in the Conservatives’ manifesto (the Salisbury Convention), the issues of human rights and the HRA are fundamental enough to be an exception, plus it would require a satisfactory Bill of Rights to be submitted first.