The impact of The British Bill of
Rights on our judiciary system
By Bambos Tsiattalou, a Senior Partner and founding
member of Stokoe Partnership
T
he first thing to point out
when discussing the possible
repeal of the Human Rights
Act and its replacement with
a completely new British
Bill of Rights is that nobody can truly
be certain of anything, except that it
appears that large scale change is on
the way, and the impact upon court
cases and tribunals of all kinds is likely
to be huge. The Bill itself hasn’t been
unveiled yet, and the hints given by
various government spokespeople tend
to be fairly broad in nature. Indeed,
so too are the particular proposals
which have emerged from both the
40 page draft bill produced before the
last election by Martin Howe QC, and
the Conservative Party Working Paper
‘Protecting Human Rights in the UK’.
There is still a degree of uncertainty
as to whether any Bill will get past
Conservative backbenchers in the
House of Commons. Balanced against
those members who view this as a
chance to break free from the undue
influence of the European Court of
Human Rights in Strasbourg, are a
significant number who view any move
away from the Human Rights Act and
towards a British Bill of Rights as
presenting a risk to basic human rights
in the UK.
Human Rights Act came into force in
2000, it enshrined the principles of the
European Convention on Human Rights
(ECHR) into UK law. These principles
were drawn up in the aftermath of
World War Two, and included rights
such as the right to life, liberty, a fair
trial, freedom of expression and a
respect for private life, as well as the
prohibition of discrimination, slavery
and torture. The feeling amongst those
who wish to repeal the Human Rights
Act 1998, and replace it, is that the
European Court of Human Rights has,
undergone a degree of ‘mission creep’.
They argue that it has been interfering
in judgements made in the British
courts in a manner far removed from
the intentions of those who originally
drew up the ECHR. Examples often
utilised by the proponents of change
include the ruling, handed down from
Strasbourg, stating that a blanket UK
ban on prisoners voting was unlawful.
This is coupled with the lengthy legal
struggle needed to deport radical
Islamist cleric Abu Qatada, a struggle
which hinged on the European Court
of Justice’s ruling that some of the
evidence used to convict him may have
been obtained via torture.
Add to this the fact that any bill is
bound to receive a forensic and not
necessarily sympathetic examination
in the House of Lords, and will also
have to be crafted in a manner that
can cope with the pressures placed
on it by the various devolved parts of
the UK creating a process which is far
from straightforward. At present, the
1998 Human Rights Act forms a central
plank of the devolution agreements
pertaining to Wales, Scotland and the
Good Friday Agreement in Northern
Ireland. Disentangling it to the point
at which it can be removed altogether
and replaced with something entirely
new, will require more than a little legal
and political dexterity, particularly if it
isn’t to amplify demands for another
independence referendum in Scotland.
The basic aim of the legislation is to
remove the link between British courts
and the European Court of Human
Rights, contained within section 2
of the Human Rights Act, requiring
domestic tribunals and courts to ‘take
into account’ judgements made in
Strasbourg. It is stated that any Bill
of Rights will still be based upon the
principles of the European Convention
of Human rights, but will instruct UK
Courts to give a narrower definition
to some of these rights than has been
offered by the court in Strasbourg,
and will only allow Human Rights
to become part of a defence in ‘the
most serious cases.’ The examples of
‘serious cases’ given so far include
those which involve property, criminal
law and liberty, but not, for example,
cases hinging upon torture, freedom of
speech or due process.
The case for and against the creation
of a new Bill of Rights, can be
summarised fairly simply. When the
Some opponents of the changes argue
that, while the Strasbourg Court may
well, upon occasion, stray into areas
in