A British Bill of Rights?

by Molly Kirwan

Council of Europe
Photo: Wikimedia Commons/Council of Europe

Theresa May, the Prime Minister of the UK, has announced plans for the British military to opt out of parts of the European Convention on Human Rights (ECHR) in future military conflicts and instead to adopt a so-called “British Bill of Rights.” This move is something that David Cameron, the former Prime Minister of the UK, alluded to previously.

History of the ECHR

The UK has been a signatory of the ECHR since 1951. However, the Convention is not self-executing, thus it required the UK to pass legislation domestically in order for its content to become effective law within the UK. This legislation was passed in the form of the “Human Rights Act” (HRA) in 1998 after Tony Blair’s Labor Party introduced it.

The ECHR actually stems from membership of the Council of Europe, not from the European Union, thus Brexit does not really affect this move. Though it is true that a country must be a member of the Council of Europe in order to be a member of the European Union, the reverse is not true, and it has not been suggested that the UK is also leaving the Council of Europe at this point.

What the Bill of Rights Would Look Like

The changes would involve derogation from the content of Articles Two (right to life) and Five (right to liberty) of the ECHR, but the UK would still be following the other mainstays of the convention such as the prohibition on torture. These derogations could only happen in times of war or public emergencies that threaten the life of the nation.

A British Bill of Rights would likely look nearly identical to the current Human Rights Act (HRA) but with a spattering of traditionally granted British rights which are not covered by the HRA, such as the right to a trial by jury. Most of the current content of the HRA stems from longstanding protections which British law offers its citizenry anyway. The greatest issue is that the UK is one of the few countries in Europe to have a common law system; most others have a variation of a Roman and civil law system, but this issue could be overcome by simply making the British Bill of Rights justiciable only in a common law court.

What the Ramifications of a Switch Might Be

This would likely not be a particularly contentious move, especially given the media’s main focus on the UK exiting from the European Union rather than on this smaller, separate issue. Other countries such as Turkey, the Ukraine, and France have given notice that they would derogate from the ECHR before, with no real ramifications. Additionally, many citizens of the UK may be supportive of this move as it is intended to shield the UK from some legal claims of military misconduct, which they have spent over 100 million pounds ($123 million) on since 2004 for cases regarding their presence in Iraq. Internationally, it is difficult to predict what the reaction would be, but one could assume it would just be seen as a reaffirmation of the British desire to distance themselves from the rest of Europe in certain respects.

There likely would not be any concrete legal ramifications because the core content of the ECHR is said to be incorporated in this British Bill of Rights, and the derogation would be limited to times of war and public emergency, which has been allowed previously when other countries derogated. Thus, while it may be frowned upon for them to alter an international obligation, they would still be comporting with the international norms of human rights law but embodied in a different text.

On the other hand, there has been some backlash from certain groups who feel this will only serve to protect those who have something to hide and is being orchestrated by those trying to undermine the rule of law and intimidate solicitors who pursue legitimate cases involving abuse by the British military.