Following the announcement of the UK general election, the status of the Human Rights Act 1998 (the "Act") has again come into focus. The Conservatives' manifesto reveals that plans to repeal and replace the Act with a domestic 'Bill of Rights' will be placed on hold "while the process of Brexit is underway". Their manifesto also confirms that the UK will remain a signatory to the European Convention on Human Rights (the "ECHR") for the duration of the next parliament. On the other hand, the Labour party has made an express commitment to retain the Act.
This means that, whatever the result of the election, the UK is likely to remain a signatory of the ECHR for the foreseeable future, although a Conservative win could see the status of the Act being reviewed depending on how the Brexit process and the surrounding political climate develop.
Background and previous plans for the Act
The Act, which came into full force in October 2000, radically changed the way human rights are enforced in the UK. Prior to the Act coming into force, the only way to complain of a breach of the ECHR was to take a case directly to the European Court of Human Rights in Strasbourg (the "ECtHR"). The Act introduced to the UK a core principle that all public authorities must act in a way that is compatible with the ECHR. It also placed a duty on the judiciary to interpret UK law, as far as possible, in a way that is compatible with the ECHR and the decisions of the ECtHR.
The status of the Act was first called into question during the Conservatives' 2005 election campaign under Michael Howard who pledged to repeal the Act. Since then, numerous politicians have suggested repealing or replacing the Act with a domestic Bill of Rights following a number of high-publicity decisions by the ECtHR relating to issues such as prisoners' voting rights and the detention of terror suspects. However, to date, such suggestions have not progressed beyond proposals and the Act remains in force.
In their manifesto the Conservatives have stated that they will not repeal or replace the Act while the process of Brexit is underway. Once this process has been concluded, they will "consider our human rights legal framework". This is accompanied by a pledge to keep the UK as a signatory of the ECHR for the duration of the next parliament.
In relation to "the process of Brexit", if this is taken to mean the two year period that began with the triggering of Article 50 on 30 March 2017, in theory the UK's human rights framework could be reviewed by a Conservative government from 30 March 2019. However, the process of Brexit could well stretch beyond this point depending on negotiations and any transitional deals with the EU. The language used in the manifesto gives the Conservatives a degree of flexibility.
Given the Conservatives' pledge to maintain the UK's status as a signatory to the ECHR for the duration of the next parliament, their commitment to only "consider" the human rights legal framework (rather than make any specific changes) arguably suggests that there is little appetite for major reform in this area during the next parliament. However, it remains possible that a Conservative government could revisit the idea of a Bill of Rights once the process of Brexit has concluded.
Labour's manifesto, on the other hand, contains a definitive pledge to retain the Act in its current form and for the country to remain party to the ECHR. Labour's position means that, should they win the election, the legal framework would continue to operate as it does today, which contrasts with the Conservatives' pledge to consider the framework following Brexit. Should Labour lose the election, it is likely that they (and other parties such as the SNP and the Liberal Democrats) will strongly resist any attempts by a Conservative government to repeal the Act (which was itself passed with cross-party support).
The Liberal Democrats' manifesto pledges to retain the Act and to oppose any attempts to repeal it – the Green Party's manifesto echoes this position.
Overall, both main parties advocate a continuation of the current position for the immediate future. The Conservatives, if victorious, may review the status of the Act and the legal framework for human rights more generally once the process of Brexit has ended. If they choose to repeal the Act, they are likely to face strong opposition from the remaining parties and significant debate on the content of any replacement Bill of Rights will be required.
For now, the preservation of the status quo is to be welcomed as it will provide some legal certainty in a parliament which will be defined by Brexit and the significant legal changes and uncertainties that it may entail.