Human Rights Act – Reprieve rather than Repeal?

29 May 2015

The Conservative manifesto promised to repeal the Human Rights Act (HRA) and replace it with a “British Bill of Rights”.

The Conservative manifesto promised to repeal the Human Rights Act (HRA) and replace it with a “British Bill of Rights”. However this election promise did not form part of the Queen’s speech. Clare Hedges, an Associate in our Immigration and Employment team explores the significance of this. 

Why does it matter what is in the Queen’s Speech?

The Queen’s Speech is written for her by the Government. This is the first Conservative-only Queen’s Speech for nearly 20 years. It sets out the Government’s priorities and highlights the key Bills they will pursue.

To become law, any Bill must pass through the House of Commons and the House of Lords, before receiving Royal Assent. Under the Salisbury-Addison Convention, a Bill foreshadowed in a manifesto and passed by the House of Commons is not opposed by the House of Lords on second or third reading. This is on the basis that the majority of the electorate have voted for and endorsed that manifesto and the unelected Lords should not interfere with this. Any Bill that is referred to in a manifesto and thereafter in the Queen’s Speech is usually guaranteed a much smoother path through Parliament than other proposed legislation which may follow later.

Why was repeal of the Human Rights Act not included?

Since the General Election there have been murmurings of discontent from within the Conservative Party about the proposal to simply jettison the whole HRA. Mr Cameron only has a slender parliamentary majority and needs the backing of all Tory MPs to effect change. With an EU Referendum already a likely source of division in his party, he needs to choose his battles and cannot afford dissent from backbenchers at this early stage over the HRA.

Hopefully he also now appreciates that replacing the HRA with a British Bill of Rights will not be entirely straightforward. As campaigners have highlighted, the HRA guarantees fundamental freedoms and it seems contrary to British values to abolish it in the 800th year of the Magna Carta. Also, as many legal commentators have observed, we already have a Bill of Rights. This dates from 1689, covering England, Wales, Scotland and the Commonwealth. Whilst it does not include the full range of human rights as we understand them today, it does contain familiar concepts such as the rule of law, Parliamentary sovereignty, free elections, prohibition on cruel and unusual punishment and protection for freedom of speech.

What happens next?

The Queen’s Speech did refer to a British Bill of Rights, but only in terms of 'proposals' rather than legislation. So whilst Mr Gove has been lined up to pursue this policy as Minister of Justice (the second in a row without any legal qualifications), it remains to be seen how long it will take to work its way out of the 'too difficult' pile. We may yet see repeal of the HRA following a period of consultation, but it has been given at least a temporary reprieve.