UCL Amnesty Society President
The 2017 general election was widely expected to be Theresa May’s way of obtaining a landslide majority and giving her an opportunity to transform Britain and its human rights legal framework. However, after the results came in and Britain faced a hung Parliament, the Conservatives’ ability to change Britain became much less certain. This article will briefly discuss the pre-election expectations of the Conservatives, how they could have changed the human rights norms in the UK, and how this theory faces up to the current reality of a hung Parliament.
As most readers will remember, when Theresa May called a general election to be held on 8 June she was widely tipped to obtain a large majority, perhaps even a landslide, in the style of Tony Blair or Margaret Thatcher. Tabloid headlines, for instance, declared “Blue Murder” and “Crush the Saboteurs”, assuming that a Conservative victory would sweep Britain in a pro-Brexit frenzy which would allow the Government to overlook its Brexit critics. Indeed, for much of the campaign, pollsters predicted an emphatic majority for the Conservatives. Consequently, commentators and pressure groups were preparing for the implementation of the unrelenting Conservative manifesto, entitled “Forward, Together”.
Regarding human rights, therefore, there was the assumption that the Conservative manifesto proposals would be implemented in the years after the election. However, even in their manifesto, their immediate rights proposals were limited to strengthening workers’ rights and those of businesses. Whilst in 2015, they appeared to prioritise repeal of the 1998 Human Rights Act, in 2017 their commitment to repeal would now only arise “when the process of leaving the EU concludes”, perhaps as an afterthought to placate the Tory base who resist the extent of the Human Rights Act. Consequently, had the Tories won their predicted landslide in the general election, there would not have been any immediate changes to the UK’s legal rights framework; the changes would have come after Brexit had occurred.
Notwithstanding the indicated delay in repeal of the Human Rights Act, there would have remained the looming prospect of repeal hanging over the Parliament. Indeed, the exact wording of the Tory manifesto, that once Britain has left the EU “we will consider our human rights legal framework”, implies that wholesale reform of human rights is planned for Britain under a majority Conservative government.
Of course, as readers will now know, the reality of the election is far from what pollsters and commentators predicted. Parliament currently has no majority party, and the only feasible governing arrangement which would produce one appears to be a minority Conservative government supported by the Northern Irish Democratic Unionist Party (DUP).
The current composition of the House of Commons is therefore crucial to be able to predict whether, and how quickly, reform or repeal of the Human Rights Act is possible. Parties that oppose repeal (Labour, Liberal Democrats, Scottish National Party (SNP), Plaid Cymru and Green) comprise almost half of the House; the only other two parties that remain are the Conservatives and the DUP, without taking into account the pro-Human Rights Act Sinn Fein, as they do not take their seats. Hence, if the Conservatives, presumptively still in (minority or other) government after Brexit has occurred, still intend to repeal the Human Rights Act and amend the British system of legal rights, whether they are able to depends on the support of the DUP and continued opposition of the other parties.
Given the electoral calculations, even if we are to assume the support of the DUP in favour of Human Rights Act repeal or reform, such action is by no means certain. There are likely to be sufficient Conservative MPs intent on protecting human rights and Britain’s links with the Council of Europe (the pan-European human rights council established under the umbrella of the European Convention on Human Rights – the ECHR). As it stands, the Human Rights Act is an effective piece of legislation that brings much of the ECHR into the domestic sphere; there are consequently very few positive arguments in favour of repealing the Act which will likely be cogent with a notable minority of Conservative MPs, although this article is not the place to discuss them. For a more detailed discussion on this issue, see Laila’s article here.
Further, the hypothetical repeal of the Human Rights Act with DUP support presupposes the support of the DUP for repeal of the Act. However, there is a conspicuous absence of any rights-based discourse in the DUP manifesto other than a brief discussion of workers’ rights. Their position on the Human Rights Act has not been elucidated in great detail; the most notable DUP statement on the matter came in a law and order policy paper published in February 2015 prior to the General Election that year, which said that they would “support, as a minimum, the reform of the Human Rights Act, to remove the ‘right to family life’ defence against deportation upon conviction for a serious criminal offence.” This indicates, but by no means conclusively demonstrates, that the DUP is likely to support repeal of the Human Rights Act.
Ultimately, the feasibility of repeal of the Human Rights Act under the current minority Conservative government will depend on several factors. First, whether repeal is actually transposed from the election manifesto into action voted for by a majority of MPs (this largely depends on the level of support among Conservative and DUP MPs). Second, whether the Conservative government survives until Brexit negotiations have completed and is in a position to legislate to repeal the Human Rights Act once Britain has left the EU. Third, whether the process of leaving the EU ultimately occurs. This third factor is less likely than the other two to arise, given the cross-party support for Brexit. However, it should not be entirely discounted – unforeseeable events may thwart Brexit proceedings and make Human Rights Act reform entirely untenable.