The Government’s flagship plan to send asylum seekers to Rwanda was blocked by the European Court of Human Rights (ECtHR) a several weeks ago. In response, the Prime Minister proposed several routes to overcome this barrier, namely the Rwanda Bill, which is currently passing through the House of Lords after its contentious passage in the Commons. Yet those on the right wing of the Conservative party have viewed this obstruction as the latest in the European court’s interference in UK policy, prompting renewed calls for an exit from the European Convention on Human Rights (ECHR) and the replacement of the complementary Human Rights Act 1998 (HRA) with a new Bill of Rights. This action could not only permanently damage human rights in the UK but create wider constitutional challenges and affect our standing in the international community.
This is not the first time that this course of action has been proposed by the Conservatives in recent years. It formed part of the 2010 Conservative manifesto and their commitment was reiterated in 2015. The fervour for this became more lukewarm with a 2019 pledge to merely ‘update’ the existing HRA 1998. However. attempts to take action on this issue gained momentum more recently; the Bill of Rights bill, which aimed to make the ECHR enforceable in UK law, was introduced in 2022 but scrapped a year later in June 2023. Whether it is through a desire for the parliamentary sovereignty or to distance the UK further from our European neighbours, a repeal of the HRA 1998 would pose substantial constitutional challenges.
This comes from its significant place within our constitution. Despite its uniquely uncodified nature, there are foundational elements to our constitution, including key pieces of legislation. The HRA 1998 is one of these components, given how it permeates across a range of policy areas and creates a legal obligation for public authorities to follow it. While parliamentary sovereignty allows judicial reviews of Acts of Parliament to be disregarded, politically it is challenging to dismiss a UK or European judgement that declares a policy as ‘incompatible’. In the event of its repeal, the contents of the Bill of Rights that takes its place would be hotly contested and would hold implications for existing laws which are found to conflict with it. Therefore, this change would not remove the headache of ensuring legislation complies with human rights, it would just shift that power from a European Court to a British one.
With a repeal not solving a central issue other than offering the illusion of greater control, it is worth ruminating on the potential consequences if it were to take place. Firstly, it would reduce the credibility of the UK in combatting human rights violations abroad. This would not only weaken our soft power but damage our relationships with our allies. Following Brexit, the international voice of the UK has already diminished; this would compound that issue and remove us even further from relevance on the world stage.
Perhaps the most crucial constitutional consequence would be much closer to home due to the ECHR being a key component of the Good Friday Agreement. After two years in limbo, Stormont has finally been able to resume activity following the end of the DUP boycott. However, the Good Friday agreement, which created the power sharing agreement and ended the Troubles, explicitly states the need for the continued participation in ECHR. The agreement has already strained under the weight of Brexit; it would likely snap at another radical constitutional shift for the UK.
The constitutional issues detailed in the above has not even addressed the most obvious consequence – the erosion of human rights in the UK. The sanctity of maintaining human rights is a core part of a functioning democracy, yet the potential removal of some of these rights would inevitably take place. While proponents would argue that the rights would remain in British legislation, the small tweaks made could have a big impact on how rights are exercised. The key aim of this exercise would be to remove accountability, ensuring that there is no recourse for British citizens if the Government violates their rights. To maintain the union, the UK’s status, and our democracy our discourse must move away from believing the repeal of the HRA 1998 to be a viable option.
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