Abstract

http://ssrn.com/abstract=2605487
 


 



The Legal Implications of a Repeal of the Human Rights Act 1998 and Withdrawal from the European Convention on Human Rights


Kanstantsin Dzehtsiarou


University of Liverpool; University of Surrey

Tobias Lock


University of Edinburgh School of Law

Paul Johnson


University of York

Fiona de Londras


Birmingham Law School

Alan Greene


Durham Law School

Ed Bates


University of Leicester

May 12, 2015


Abstract:     
The UK general election of 7 May 2015 has returned a Conservative government so that the Conservative Party’s plans for reforming human rights law in the United Kingdom are likely to become reality. It is therefore important to discuss some of the legal implications a repeal of the Human Rights Act and withdrawal from the ECHR might bring. This policy paper is the product of a one-day workshop held at Edinburgh Law School on 13 February attended by Ed Bates, Christine Bell, Colm O’Cinneide, Fiona de Londras, Sir David Edward, Alan Greene, Paul Johnson, Kanstantsin Dzehtsiarou and Tobias Lock.

Key findings include: Any attempt to repeal and/or replace the Human Rights Act would have to take into account the devolution settlement. A repeal of the Human Rights Act might require the consent of the devolved legislatures under the Sewel Convention. A repeal would at present run counter to the UK’s international treaty obligations under the British-Irish Agreement which was incorporated in, and agreed as part of the UK-Ireland obligations under the Belfast (Good Friday) Agreement. A new Bill of Rights may require the consent of the devolved legislatures.

If the Human Rights Act were not replaced, individuals would still be able to rely on common law remedies, as far as they exist, as well as the EU Charter of Fundamental Rights in cases in which the UK has acted within the scope of EU law. Hence, in some areas repealing of the Human Rights Act without more will not lead to the ‘regaining of sovereignty’ anticipated by the proponents of such proposals.

A replacement of the Human Rights Act with a British Bill of Rights would enable Parliament to provide for the protection of additional rights, such as a right to trial by jury. It would also allow Parliament to introduce certain procedural changes, such as no longer making it mandatory for courts ‘to take into account’ the case law of the European Court of Human Rights or to read legislation ‘as far as it is possible to do so’ compatibly with Convention rights. It should be noted, however, that the Supreme Court has relaxed the conditions under which courts are required to follow the European Court of Human Rights and that a removal of these requirements could result in an increased number of cases brought against the UK in the European Court of Human Rights.

A complete withdrawal from the European Convention on Human Rights would deprive people in the UK from the possibility of bringing their human rights complaints to the European Court of Human Rights. However, it would not relieve the UK of the duty to comply with judgments already handed down by the European Court of Human Rights, for instance on prisoner voting. The UK would also be setting a negative example so that the protection of human rights within Europe as a whole would suffer. Withdrawal from the European Convention on Human Rights is technically possible with six months’ notice, however it would lead to wider consequences for the UK’s other international commitments. Long-term membership of the Council of Europe may become impossible. A withdrawal from the European Convention on Human Rights may be incompatible with the UK’s commitments as a member of the European Union. Withdrawal from the European Convention on Human Rights could also result in a substantial reduction of human rights protection for minority and vulnerable groups in the UK.

Number of Pages in PDF File: 34

Keywords: Human Rights Act 1998; European Convention on Human Rights; Reform; British Bill of Rights; European Court of Human Rights


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Date posted: May 14, 2015  

Suggested Citation

Dzehtsiarou, Kanstantsin and Lock, Tobias and Johnson, Paul and de Londras, Fiona and Greene, Alan and Bates, Ed, The Legal Implications of a Repeal of the Human Rights Act 1998 and Withdrawal from the European Convention on Human Rights (May 12, 2015). Available at SSRN: http://ssrn.com/abstract=2605487 or http://dx.doi.org/10.2139/ssrn.2605487

Contact Information

Kanstantsin Dzehtsiarou
University of Liverpool ( email )
Brownlow Hill
Liverpool, L69 3BX
United Kingdom
HOME PAGE: http://https://www.liv.ac.uk/law/staff/kanstantsin-dzehtsiarou/
University of Surrey ( email )
School of Law
Guildford, GU2 7XH
United Kingdom
Tobias Lock (Contact Author)
University of Edinburgh School of Law ( email )
Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

Paul Johnson
University of York ( email )
Heslington
York, YO10 5DD
United Kingdom
HOME PAGE: http://www.york.ac.uk/sociology/our-staff/academic/paul-johnson/
Fiona De Londras
Birmingham Law School ( email )
Edgbaston
Birmingham, B15 2TT
United Kingdom
HOME PAGE: http://www.birmingham.ac.uk/schools/law/staff/profile.aspx?ReferenceId=99740
Alan Greene
Durham Law School ( email )
Palatine Centre PCL 219, Stockton Road
Durham, County Durham DH1 3LE
United Kingdom
Ed Bates
University of Leicester ( email )
University Road
Leicester, LE1 7RH
United Kingdom

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