The Conservative Project to ‘Break the Link between British Courts and Strasbourg’: Rhetoric or Reality?

AuthorRoger Masterman,Helen Fenwick
DOIhttp://doi.org/10.1111/1468-2230.12304
Published date01 November 2017
Date01 November 2017
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LEGISLATION
The Conservative Project to ‘Break the Link between
British Courts and Strasbourg’: Rhetor ic or Reality?
Helen Fenwick and Roger Masterman
The Conservative party has repeatedly pledged to replace the HRA with a British Bill of
Rights, with the aim of ‘breaking the link’ between domestic courts and Strasbourg. This
article examines the implications of this proposal, the nature of the current relationship with
the European Court, and the extent to which the link has already been weakened. It considers
the bases of the Conservative proposal, and the options available in breaking that link in a Bill of
Rights, taking account of the potential introduction of limitation clauses and the possibility of
according Strasbourg judgments against the UK an advisory status only. Finally, taking account
of the European Court’s recent movement towards ‘enhanced’ subsidiarity, it will examine the
consequences for the protection of human rights of reliance on a Bill of Rights intended to be
interpreted and applied independently of Strasbourg influence.
INTRODUCTION
In the febrile aftermath of the June 2016 ‘Brexit’ referendum, and of the deci-
sion of the UK Supreme Court that Parliament must vote to trigger Article 50
of the Treaty of Lisbon,1the commitment of the Conservative Government
to replace the Human Rights Act 1998 (HRA) with a British Bill of Rights
(BBoR) was somewhat overshadowed. However, that commitment gains con-
siderably in significance as a result of ‘Brexit’ since, once the UK has withdrawn
from the EU, it can be presumed that the EU Fundamental Charter of Rights
will no longer be applicable in domestic law2and the potential for the UK’s
human rights framework to undergo significant further amendment will be
considerable. The Conservative Party’s 2017 general election manifesto com-
mitted to a re-examination of the United Kingdom’s human rights framework
on completion of the ‘Brexit’ negotiations, and while a draft BBoR has not
Durham Law School.
1R (on the application of Miller) vSecretary of State for Exiting the European Union [2017] UKSC 5;
[2017] 2 WLR 583.
2 The Charter has been found to apply directly in domestic law: Cases C/293/12 and C/594/12
Digital Rights Ireland Ltd vMinister for Communications, Marine and Natural Resources & Others
and Seitlinger and Others ECLI:EU:C:2014:238. See further: House of Lords EU Committee,
The UK, the EU and a British Bill of Rights HL Paper 139 (9 May 2016); ‘an inquiry to assess
the impact of a Bill of Rights on the UK’s obligations under the EU Charter, and, conversely,
of those obligations on a British Bill of Rights’, [6]. See also the recent comment on this
matter: ‘Top Lawyers warn of Human Rights Crisis after Brexit’ The Guardian 21 February
2017 at https://www.theguardian.com/law/2017/feb/21/top-lawyers-warn-of-human-rights-
crisis-after-brexit (last accessed 15 July 2017).
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited. (2017) 80(6) MLR 1111–1136
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Rhetoric or Reality?
been published, one aspect of it can be viewed as clearly established: it will
reflect long-standing Conservative hostility, not to the text of the ECHR itself,
but to its attendant jurisprudence, and in particular to the ‘living instrument’
or ‘living tree’3approach, which influences domestic law via section 2 of the
HRA. That hostility was reaffirmed by Theresa May during her campaign to
become the leader of the Conservative party when she attacked certain Stras-
bourg decisions in the ‘living instrument’ mode.4It was also reflected in the
Conservatives’ 2015 election manifesto, which included a pledge to abolish the
HRA and replace it with a British Bill of Rights that would ‘break the formal
link between British courts and the European Court of Human Rights,’ and
render the UK Supreme Court the ‘ultimate arbiter of human rights matters
in the UK’.5
In the wake of the 2015 general election Prime Minister David Cameron said
that plans to repeal the HRA would be published within the first 100 daysof the
new administration.6Untrammelled by Liberal Democrat Coalition partners,
it appeared that the promise initially made in the 2010 Conservative manifesto
would finally be put into practice. The 2015 Queen’s Speech, however, did
not refer to legislation that would effect such repeal, but merely to proposals
to introduce a BBoR. This commitment was repeated in the 2016 Queen’s
Speech, and – following the June 2016 in/out referendum on EU membership
and David Cameron’s replacement by Theresa May – the then Secretary of State
for Justice and Lord Chancellor again reiterated the Government’s intention to
replace the HRA with a BBoR.7While the June 2017 general election resulted
in the return of a minority, ‘Brexit’-focused, Conservative administration, it
remains reasonable to assume – given the post-2016 empowerment of the
Euro-sceptic right and the long-standing nature of anti-Strasbourg sentiment
– that repeal or replacement of the HRA remains a mid-term Conservative
policy objective. Publication of a draft Bill of Rights following completion of
the ‘Brexit’ negotiations therefore remains a likely scenario.8
The 2014 Conservative Party document, Protecting Human Rights in the UK:
The Conservatives’ Proposals for Changing Britain’s Human Rights Laws,proposed
that the ‘formal requirement for our Courts to treat the Strasbourg Court as cre-
ating legal precedent for the UK (sic)’9would be undone under a new BBoR.
On the reasonable assumption, therefore, that a BBoR will include a new ver-
sion of section 2 of the HRA, reflecting those 2014–16 pledges, this article will
3InBrown vStott [2003] 1 AC 681, Lord Bingham of Cornhill described the ECHR, at 703, as
a ‘living tree capable of growth and expansion within its natural limits’.
4 ‘UK must leave the European Convention on Human Rights, says Theresa May’ The Guardian
25 April 2016.
5SeeStrong leadership. A clear economic plan. A brighter, more secure future at https://www.
conservatives.com/manifesto (last accessed 15 July 2017); The Conservative Party, Protecting
Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws
(October 2014) 6 (Protecting Human Rights in the UK).
6 See, for example, O. Wright, ‘Unshackled from coalition partners, Tories get ready to push
radical agenda’ The Independent 9 May 2015.
7 House of Commons Justice Committee, Oral Evidence, The Work of the Secretary of State
HC620, 7 September 2016, Q78-Q91.
8 HC Debates, vol 618 col 355 8 December 2016 (Jeremy Wright QC MP).
9 The Conservative Party, Protecting Human Rights in the UK n5above,5.
1112 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(6) MLR 1111–1136

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