This document provides a summary of a dissertation examining the possibility of a UK Bill of Rights. It begins by outlining some key aspects of the changing UK constitution, including parliamentary sovereignty and the increasing role of the rule of law and human rights protections. It then assesses perceived problems with the Human Rights Act and its relationship with the European Convention system. Finally, it discusses potential implications of the UK's membership in the EU and Council of Europe, as well as devolution factors, on the viability of different Bill of Rights models. The document aims to critically analyze whether these European and domestic legal and political issues undermine the possibility of establishing a future UK Bill of Rights.

1. Is a UK Bill of Rights possible
considering the implications of the
European and domestic constitutional
landscape in the UK?
Joshua Maddison
497246
LLB Law
Legal Dissertation
March 2014

2. Statement of Originality
This dissertation is submitted in partial fulfilment of the requirements of LLB Law. I, the
undersigned, declare that this project is my original work. Where I have taken ideas and/or
wording from another source this is explicitly referenced in the text.
I give permission that this project may be photocopied and stored in hard copy and electronic
form and be made available for inter-library loan for the purposes of research.
I am providing an electronic source from which this project was printed. I give permission for
this project and the electronic source to be used in any manner considered necessary to fulfil
the requirements of the University of Portsmouth Regulations, Procedures and Codes of
Practice.
Word Count: 10, 997 (excluding front page, title page, statement of originality,
acknowledgments, synopsis and appendices.)
Signed: ..............................................................................................
Name of Student: Joshua Maddison
Date: 26 March 2014

3. Acknowledgments
First, I would like to thank Donal. Without you I doubt I would have made it to the end of
this somewhat never-ending task. For your continuous support and guidance and no doubt
patience, through any of my odd moments and my emails which in themselves were
dissertations.
Second, I want to thank all my family, but especially my parents and girlfriend. For keeping
me sane, pushing me to go further and ultimately making the last four years something I will
never forget.
Lastly, to my laptop. I honestly do not know how you have survived the last 8 months of
power draining, keyboard bashing 12 hour days. A technological miracle. Thank you.

4. Is a UK Bill of Rights possible considering
the implications of the European and
domestic constitutional landscape in the UK?
Joshua Maddison

5. Synopsis
This dissertation aims to critically discuss the possibility of a future UK bill of rights. It will
be argued that, despite constant political attention and the recent publication of the bill of rights
Commission report, little thought has been given to various legal and political implications
which could have a substantial effect on the possibility of future reform.
The UK constitution in its current state is first examined and the role that bill of rights play
within constitutions is shown to help understand the current problems and to provide a
reference point for later analysis.
The Human Rights Act 1998 and its relationship with the European Convention system is then
assessed in order to highlight the claimed problems with UK human rights law, where it is
submitted that significant change would be needed to address the underlying issues. The
Commission’s report is incorporated throughout, with its work and criticisms thereof helping
to put forward two potential UK bill of rights models.
From this, the final two chapters will look to consider each model in turn. Discussion will
however focus on whether certain legal and political implications of the European and domestic
constitutional landscape could undermine the possibility of these models. For example, specific
attention will be given to membership of the EU and Council of Europe, the forthcoming
accession of the EU to the ECHR, the Charter of Fundamental Rights, UK common law and
various devolution factors.
In concluding, it will be seen whether the discussed factors render the possibility of a future
UK bill of rights unlikely.
This dissertation will use numerous sources, from books, journals, legislation and cases, to
government reports, academic blogs and political newspaper reports.

6. Contents
CHAPTER 1 An Introduction................................................................................................1
CHAPTER 2 The UK’s Changing Constitution and Bills of Rights...................................3
2.1 Its Underlying Principles: Parliamentary Sovereignty & the Rule of Law...................................3
2.2 Human Rights in the UK...............................................................................................................5
2.3 A Bill of Rights defined................................................................................................................6
2.3.1 Characteristics........................................................................................................................7
2.3.2 More than just a legal document............................................................................................7
CHAPTER 3 The HRA and Convention System: What are the problems? ......................9
3.1 The ‘Ownership’ Issue................................................................................................................10
3.2 A Transfer of Power....................................................................................................................13
3.3 ‘Argentoratum locutum, iudicium finitum’- ‘Strasbourg has spoken, the case is closed’ ..........15
Final Thoughts ..................................................................................................................................19
CHAPTER 4 Denunciation and EU Law ............................................................................21
4.2 Withdrawing From the ECHR: The Possibility and its Consequences.......................................26
4.2.1. Withdrawal from the Council of Europe?...........................................................................27
4.2.2. Withdrawal from the EU?...................................................................................................28
4.2.3. The EU’s accession to the ECHR .......................................................................................30
4.3.1 A Political Disaster?.............................................................................................................32
4.3.2 The Article 58 Consequence................................................................................................34
4.4 The Common Law Lives On.......................................................................................................34
4.5. Final thoughts.............................................................................................................................36
CHAPTER 5 Devolution and the ‘Ownership’ Issue .........................................................38
5.1 Disorder of the Legal Orders ......................................................................................................38
5.2 Who has the power? The Devol-ution is in the detail of the statutes..........................................43
5.3 Final Thoughts ............................................................................................................................46
CHAPTER 6 Conclusion.......................................................................................................47
BIBLIOGRAPHY..................................................................................................................49

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CHAPTER 1
An Introduction
The universality of human rights within modern liberal society means that they find themselves
at the heart of constitutions around the world; in the UK this is no different. The recognition of
rights (a modern interpretation of the rule of law1
) sits alongside parliamentary sovereignty as
one of the bedrocks of the constitution. Yet not since 1791, when Tom Paine’s Rights of Man2
called upon the state to refrain from abusing civil liberties, has so much strife and controversy
surrounded the debate about the protection of fundamental rights and freedoms within a nation.
The Human Rights Act,3
which domestically incorporated ‘Convention rights’4
and equipped
the judiciary with new powers to uphold such rights, has had an embattled life.5
Criticisms of
the Act and its relationship with the European Convention on Human Rights6
and European
Court of Human Rights7
have meant that it has been caught up in a political storm which has
resurfaced the Bill of Rights (BoR) debate. This is a debate that is no longer just a concern for
the informed elite but instead the entirety of a society which is obsessed with the balance
between freedom and security.8
Much ink has been spilled on the possible BoR solution, but at times there has been a reluctancy
to confront the underlying fundamental issues concerning the HRA and Convention system.
The report of the recent BoR Commission9
is evidence of this.10
Not only has this resulted in
1
V Bogdanor, ‘Sovereignty of Parliament or the Rule of Law?’ (Magna Carta Lecture 15 June 2006) <
http://www.runnymede.gov.uk/portal/site/magnacarta/menuitem.d12521181aaae4bdc534227c9f8ca028/ >
Accessed 2 December 2012.
2
T Paine, Rights of Man (First published 1791, Dover Publications Inc. 2000).
3
Human Rights Act 1998 (HRA), coming into full force on 2 October 2000.
4
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended) (ECHR); HRA, s 1.
5
Lord Dyson, ‘What is wrong with Human rights’ (Hertfordshire University Lecture 3rd
November 2011) <
http://supremecourt.uk/news/speeches.html > Accessed December 2012.
6
ECHR.
7
ECtHR, also referred to as ‘Strasbourg’ or Strasbourg court.
8
F Klugg, ‘A Bill of Rights: What For?’ in C Bryant (ed), Towards a New Constitutional Settlement (The Smith
Institute 2007).
9
Commission on a Bill of Rights, ‘A UK Bill of Rights: The Choice before us’ 18 December 2012 Vol. 1 <
http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013.
10
M Elliot, ‘A Damp Squib in the Long Grass: The report of the Commission on a Bill of Rights’ [2013]
EHRLR 137-151.

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an inability to properly consider possible BoR options, but has subsequently led to a more
fundamental issue; a failure to consider the legal and political implications of the European and
domestic constitutional landscape on a potential UK BoR.
Thus, there needs to be an analysis of the HRA’s perceived problems to attempt to understand
what change is needed. Putting forward potential models will allow a meaningful discussion
about the effects of the European and domestic factors and whether they look to undermine the
possibility or effect of future UK BoR’s respectively. To be able to do this, there needs to be
an understanding of the UK constitution in its current state and to grasp what exactly is meant
by a BoR.

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CHAPTER 2
The UK’s Changing Constitution and Bills of Rights
The UK’s unwritten constitution can be said to be in a state of constant change.11
The
fundamental laws that determine how this state is, and should be governed are drawn not from
a single legal document, but an accumulative variety of statutes, conventions, common law
decisions and Treaties. A more accurate term for the UK constitution would thus be a un-
codified one, making it unique amongst most other countries. The reason for this is that written
constitutions do not happen by accident, they are deliberate, spawning from a defining political
event.12
Historically, the UK has lacked such an event,13
instead as Laws LJ states, the UK
constitution cannot be a creature of a single moment as it has been conditioned over the
centuries by the changing common law.14
This constitution is however not supreme over other forms of law. Acts of Parliament (the
highest source of law in the UK) are all afforded equal status, forming part of the constitution
itself.15
There is no constitutional hierarchy of importance between Acts, leaving aside obiter
in Thoburn16
and the effect of the HRA.17
2.1 Its Underlying Principles: Parliamentary Sovereignty & the Rule of Law
At the heart of any interpretation of the UK constitution is its defining principle of
parliamentary sovereignty.18
Put simply, this means that Westminster Parliament possesses
ultimate supreme law making power. It can ‘make or unmake any law it wishes’.19
There is no
11
Stephen Sedley, ‘Beware Kite Flyers’ (London review of books, Vol. 35, No.17, 12 September 2013) <
http://www.lrb.co.uk/v35/n17/stephen-sedley/beware-kite-flyers > Accessed 11 September 2013.
12
A Tomkins, Public Law, (OUP Oxford 2003) 7.
13
A Blick, ‘Codifying – or not codifying – the UK constitution: A Literature Review’ (Centre for Political and
Constitutional Studies King’s College London, For House of Commons Political and Constitutional Reform
Committee 23 February 2011) < www.parliament.uk > Accessed July 2013.
14
Laws LJ, ‘Common Law and State Power’ (Hamlyn Lectures 27 November 2013) < www.Judiciary.gov.uk >
Accessed January 2 2014.
15
L Webley & H Samuels, Complete Public Law, (OUP Oxford 2nd
edn, 2012).
16
Thoburn v Sunderland City Council [2002] EWHC 195, [2002] 4 All ER 156 (LJ Laws).
17
HRA.
18
Dicey, A.V. An Introduction to the Study of the Law of the Constitution (10th edn, 1959).
19
ibid 38.

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higher authority,20
its power ‘knowing only political and moral limits’.21
De jure limits on its
power are considered by some to be present in EU and devolution factors22
(see chapters 4 &
5). Such limitations are only there however because Parliament wishes them to be. In theory
no Parliament can limit its successor’s sovereignty,23
and so their effects could be expressly
repealed.
An accountable and elected Parliament ultimately decide the shape of the constitution,24
and so
the UK constitution can further be defined as a political one. The basis of this political
constitution is, due to a representative democracy,25
‘sovereignty of the people.’26
Legal
decisions and human rights protection are thus within a political arena, rather than a legal one.27
This sovereignty is not totally unconstrained however. Another Diceyean theory, the rule of
law, asserted as far back as the Magna Carta,28
has been and is now more than ever seen as one
of the fundamental principles of the UK constitution.29
In essence it is the limitation by law of
all state power that is exercised,30
being described as ‘a principle of institutional morality’31
required in a democratic constitution. In modern times, its definition is extended to ‘the
recognition of basic but fundamental human rights in any liberal society.’32
Judges are seen as
the guardians of the rule of law. Their role has been greatly expanded by certain constitutional
reform33
and has led to some judges assertively suggesting within this context that ‘The rule of
20
ibid.
21
Lord Hailsham, The Dilemma of Democracy Diagnosis and Prescription (Collins Reprint edn 1978).
22
V Bogdanor, ‘Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty’ (2012) 32(1)
OJLS 179-195.
23
A Bradley, The sovereignty of Parliament – Form or Substance? in J Dowell & J Oliver (eds) The Changing
Constitution (OUP 6th
edn 2007).
24
Taylor Robert B, ‘The Human Rights Act 1998: A Bill of Rights for Britain?’ (Durham theses 2009, Durham
University) < http://etheses.dur.ac.uk/439/ > Accessed January 10 2013, 6.
25
Pinto-Duschinsky M, Bringing Rights Back Home: Making human rights compatible with Parliamentary
Democracy in the UK (London: Policy Exchange, 2011) < www.policyexchange.org.uk > Accessed September
20 2013.
26
Dicey (n 18).
27
Taylor (n 24).
28
Magna Carta 1215.
29
J Jowell, The Rule of Law and Its Underlying Values, in J Dowell & J Oliver (eds) The Changing
Constitution (OUP 6th
edn 2007).
30
Dicey (n 18).
31
A Lester & K Beattie, Human Rights and The British Constitution, in J Dowell & J Oliver (eds) The
Changing Constitution (OUP 6th
edn 2007).
32
V Bogdanor, ‘Human Rights and The New British Constitution’ (JUSTICE Tom Sargant Memorial Annual
Lecture 2009) < www.justice.org.uk > Accessed September 15 2013.
33
European Communities Act 1972 (ECA); HRA.

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law enforced by the courts is the ultimate controlling factor on which our constitution is
based.’34
The judiciary’s role has been expanded no more so than in the area of human rights.
2.2 Human Rights in the UK
Human rights protection in the UK has gradually developed from residual civil liberties left
unrestricted by the state, to a concept of positive rights that the state has a duty to respect.35
These rights were a product of judicial decisions over time,36
labelled as ‘common law rights.’
This development was accelerated after the devastation of World War II.37
The post war era
influenced38
the Universal Declaration of Human Rights39
which in turn inspired the now ever
present ECHR; a statement of basic civil and political rights a signatory state is obligated to
afford individuals.40
Since December 2nd
2000 the HRA,41
a domestic equivalent of the ECHR,42
has worked simultaneously43
with the common law to provide the basis for a pan European
recognition and protection of human rights in the UK.
The HRA has been drafted in such a way that it looks to preserve parliamentary sovereignty,
while providing recourse for individuals against the state44
when their Convention rights are
violated.45
Legislation is interpreted by the UK courts ‘as far as it is possible’ to give effect in
a way that is compatible with Convention rights,46
while having regard to ECtHR
jurisprudence.47
In doing so, if interpretation becomes strained and an incompatibility apparent,
then judges are charged with the power to issue ‘declarations of incompatibility’,48
alerting the
government that legislation is in breach of Convention rights. Parliament in theory possesses
34
R (Jackson) v Attorney General [2005] UKHL 56 [107] (Lord Steyn).
35
L Webley & H Samuels, Complete Public Law, (OUP Oxford 2nd
edn, 2012).
36
Entick v Carrington [1765] EWHC KB J98.
37
‘The Commission’s Report’ (n 9) 10.
38
Department for Constitutional Affairs, Review of the Implementation of The Human Rights Act July 2006 <
http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/peoples-rights/human-
rights/publications.htm > Accessed 5 January 2013.
39
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III).
40
ECHR, Art 1.
41
HRA.
42
H Fenwick, G Phillipson & R Masterman (eds.) Judicial Reasoning under the UK Human Rights Act
(Cambridge University Press, 2007).
43
Osborn v Parole Board [2013] UKSC 61. See also HRA, s 11.
44
HRA, s 6.
45
HRA, s 7.
46
HRA, s 3.
47
HRA, s 2.
48
HRA, s 4.

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the final say on whether the incompatibility is amended.49
S.4(6)(a) confirms that a declaration
‘does not affect the validity’ and continuance of the provision in question.50
Viewed in the wider context however, the final say arguably lies with the courts. Ignoring a
declaration and a likely subsequent Strasbourg judgement puts the UK in breach of
international law, although not affecting domestic law itself. Article 46 of the Convention
provides an international obligation to ‘abide’ by ECtHR decisions.51
A failure to do so results
in political consequences such as governmental fines and underlying issues within the Council
of Europe.52
The resulting effect on the constitution is that it currently stands at an intermediate stage
between legal and political constitutionalism.53
By placing ‘centre stage, rights that constrain
the UK in international law’54
the HRA shares a similar effect to that of a legally supreme BoR.
In its own way it limits the legislative power of Parliament through political pressure. This
hints at a transitional shift towards a more legal constitution, and marks the Act as having
tempered the absolutism of Dicey’s theory of Parliament.55
2.3 A Bill of Rights defined
Much like the constitutions for which they are contained in, there is no one definitive model of
a BoR.56
From mere interpretative instruments such as the New Zealand Bill of Rights Act,57
which avoids legislative constraints, to the more constitutional text in the US58
which voids
legislation through judicial review.59
49
HRA, s 10.
50
HRA, s 4(6)(a).
51
ECHR Art 46.
52
See Hirst v the United Kingdom (No 2) [2005] ECHR 681.
53
International Transport Roth GmbH and Others v Secretary of State for the Home Department [2002] 3 WLR
344.
54
M Elliot, ‘A Damp Squib in the Long Grass: The report of the Commission on a Bill of Rights’ [2013]
EHRLR 137-151, 148.
55
N Kang-Riou, Confronting the Human Rights Act 1998: Contemporary themes and perspectives (Routledge
2012) 2.
56
M Darrow and P Alston. ‘Bills of Rights in Comparative Perspective’ in Alston, P. (ed.) Promoting Human
Rights Through Bills of Rights: Comparative Perspectives (Oxford: Oxford University Press, 1999).
57
New Zealand Bill of Rights Act 1990.
58
United States Bill of Rights 1789.
59
Marbury v. Madison, (1803) 5 U.S. (Cranch 1) 137.

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Avoiding a rigid definition, loosely it can be defined as a document which ‘declares the
fundamental rights of all people within a nation at a given moment in time by virtue of their
common humanity’,60
which is afforded a degree of constitutional status, making it superior to
other laws.
2.3.1 Characteristics
Firstly they establish those human rights which are regarded as of particular importance at that
time,61
marking a move forward as opposed to being regressive.62
This could be defined by its
nation or implemented purely by a process of incorporating international human rights
domestically.63
Secondly they are seen as binding upon governments.64
A BoR must be held as constitutionally
higher than other forms of law. This can be represented in two ways. One, they can only be
overridden with significant difficulty, normally via ‘constitutional entrenchment’. Two, and
what ultimately distinguishes BoR, is the extent of power vested in the judiciary to strike down
legislation; ‘judicial entrenchment’. A more accurate description nowadays would be to say
there must be an increase in judicial power to, at the least, declare legislation incompatible with
this constitutional law.
Lastly they should offer some form of redress for violations.65
Individuals should be able to
hold governments to account for any breaches of their rights and obtain effective remedies.
2.3.2 More than just a legal document
60
The Commission’s Report (n 9) 53.
61
Darrow and Alston (n 56) 10.
62
Canadian Charter of Rights and Freedoms 1982; New Zealand Bill of Rights Act 1990; See also A Donald, ‘A
Bill of Rights for the UK? Why the Process Matters’ [2010] 5 EHRLR 459.
63
A Donald, P Leach & A Puddephatt, Developing a Bill of Rights for the UK (London: Equality and Human
Rights Commission Research Report 51, 2010) < http://www.equalityhumanrights.com/legal-and-policy/bill-of-
rights/developing-a-bill-of-rights-for-the-uk-research-report/ > Accessed 10 August 2013.
64
P Alston, Promoting Human Rights through Bills of Rights: Comparative Perspectives (Oxford: Oxford
University Press, 1999).
65
ibid.

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A BoR is more than just a legal document to conform to. It is autochthonous, defining what a
constitution is based upon, and providing a beacon for the people to look to and see as their
own;66
its role is symbolic.67
This constitutional document therefore plays an identificatory function as they are often the
offspring of a defining constitutional ‘moment’,68
a symbol of a brighter future.69
The
Grundgesetz of Germany exemplifies this.70
The inherent link to national identity means that it
is essential for a BoR to gain widespread public support and ownership. As Wadham suggests,
‘The support of lawyers and judges is not enough…. It needs to be known about and supported
by the communities and peoples that it is designed to be used by’71
to have any real effect and
survive and thus must be tailored to suit the culture and tradition of a nation.
A BoR must thus provide an educative role in society in order to fulfil its requirements;
ensuring an understanding of the nature of rights in a constitution. Bogdanor asserts ‘The
protection of human rights depended not only on laws and institutions, but on a spirit
favourable to human rights’.72
The importance of these functions are paramount. A BoR can be
seen as part law, part symbolism, part aspiration73
and as shown part educative.
It is the absence of these functions of a BoR and the causing of a shift towards a form of legal
constitutionalism that provide the principle reasons why there are calls for the HRA to be
replaced by a UK BoR.
66
DCA (n 38).
67
F Klug, ‘A Bill of Rights: Do We Need One or Do We Already Have One?’ [2007] Public Law (Winter) 701
at 713.
68
The JUSTICE Constitution Committee, A British Bill of Rights: Informing the Debate (2007) <
http://www.justice.org.uk/resources.php/11/a-british-bill-of-rights > Accessed September 2 2013, 106.
69
Amhlaigh C M, ‘Whether you agree with its conclusions or not, the bill of Rights Commission hit on an
important issue for human rights and the future of Britain.’ (UK Const. L. Blog, 19th December 2012) <
http://ukconstitutionallaw.org/2012/12/19/cormac-mac-amhlaigh-whether-you-agree-with-its-conclusions-or-
not-the-bill-of-rights-commission-hit-on-an-important-issue-for-human-rights-and-the-future-of-britain/ >
Accessed January 16 2013.
70
The Basic Law for the Federal Republic of Germany 1949.
71
Wadham, J. ‘Why Incorporation of the European Convention on Human Rights is Not Enough’ in Gordon, R.
& Wilmot-Smith, R. (eds.) Human Rights in the United Kingdom (Oxford: Oxford University Press, 1996).
72
Bogdanor (n 32).
73
Klug (n 67).

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CHAPTER 3
The HRA and Convention System: What are the problems?
The HRA has been labelled by some as ‘the greatest constitutional reform in the UK of the
twentieth century’;74
a piece of legislation that would ‘bring rights home’,75
with the long road
to Strasbourg no longer necessary.76
However the Act has not had an easy upbringing.77
Caught
up in the ‘war on terror’ era since 9/11, it has found it difficult to evade political and public
hostility. As its provisions attempted to challenge a proliferation of laws and practices in
controversial areas such as terrorism,78
national security79
and asylum, hostility towards the act
centred on claims it was a threat to public safety.80
Cameron promised to repeal and replace the
HRA with a British BoR which would allow for a more hard-nosed approach to freedom and
security and ‘give us our identity as a free nation’.81
These calls continued over the years, with
hostility focusing on the HRA’s relationship with the ECHR and Strasbourg, for example in
74
A Lester & K Beattie, Human Rights and the British Constitution, in in J Dowell & J Oliver (eds) The
Changing Constitution (OUP 6th edn 2007).
75
Rights Brought Home: Human Rights Bill HL (1997 -98) 119.
76
HL Deb 03 March 1999 vol 597 col 1657.
77
M Amos, ‘Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the
Answer? [2009] 72(6) MLR 883.
78
The Anti – Terrorism, Crime and Security Act 2001.
79
See I Khan, ‘Human Rights in an Age of Terror’ in Kang-Riou N, Confronting the Human Rights Act 1998:
Contemporary themes and perspectives (Routledge 2012).
80
D Cameron, ‘Balancing Freedom and Security – a Modern British Bill of Rights’ The Guardian (June 26,
2006, Centre for Policy Studies) < http://www.theguardian.com/politics/2006/jun/26/conservatives.constitution
> Accessed 5 January 2013, ‘The Human Rights Act has a damaging impact on our ability to protect our society
against terrorism’.
81
ibid.

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regards to judicial decisions that prisoners should have a right to vote;82
something Cameron
said made him feel ‘physically ill’.83
The persistency and durability of political calls eventually led to consigning the issue to a BoR
Commission.84
Yet the implications of the Coalition Government revealed itself. The Liberal
Democrats, who were not so adverse to the Act, ensured that the terms of reference of the
Commission were confined to investigating a UK BoR which built ‘on our obligations under
the ECHR’.85
This was clearly contrary to Conservative attitudes.86
Notwithstanding this, the Commission published its report in 2012 advocating – albeit
disjointedly – in favour of a UK BoR.87
The Commission ultimately reduced potential reform
to a rebranding exercise of the HRA. Although accepting that the HRA was to an extent a BoR
in itself,88
they stated that an explicitly British instrument would address the ‘ownership’ issues
that have plagued the Act.89
Their report has however been critically labelled as ‘a damp
squib’90
as it failed, in part due to its restrictive terms of reference, to engage with many
fundamental factors. Thus the preceding analysis will look to identify the claimed problems of
the HRA and Convention system, attempting to go beyond the Commission.
3.1 The ‘Ownership’ Issue
The most common criticism of the HRA is that it lacks public understanding and ‘ownership’,91
something which is required of a BoR (as it often claimed to be92
). The Commission’s strongest
82
Hirst v the United Kingdom (No 2) [2005] ECHR 681; see also Smith v Scott [2007] SC 345 [2007] CSIH 9.
83
HC Deb, 3 November 2010, vol 517, col 921. See also HC Deb, 24 October 2012, cols. 922-3 (David
Cameron) ‘prisoners are not getting the vote under this Government’.
84
Cabinet Office, The Coalition: Our Programme for Government (HM Government 20 May 2010) <
https://www.gov.uk/government/publications/the-coalition-documentation > Accessed 8 March 2014, 10.
85
Commission on a Bill of Rights, A UK Bill of Rights: The Choice Before Us (18 December 2012,Vol 1) <
http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013, 5.
86
See Helen Fenwick, ‘Conservative Anti-Rhetoric, the Bill of Rights ‘Solution’ and the Role of The Bill of
Rights Commission’, in R Masterman & I Leigh (eds), The United Kingdom's Statutory Bill of Rights:
Constitutional and Comparative Perspectives (OUP/British Academy 2013) 328.
87
The Commission’s Report (n 85) 176, paras 12.7-12.11.
88
The Commission’s Report (n 85) 26, para 68.
89
ibid 176, paras 12.8-12.9; See also Adam Wagner, ‘The Bill of Rights Commission report: a modest proposal’
(UK Human Rights Blog December 18 2013) < http://ukhumanrightsblog.com/2012/12/18/the-bill-of-rights-
commission-report-a-modest-proposal/ > Accessed January 2013.
90
See M Elliot, ‘A Damp Squib in the Long Grass: The report of the Commission on a Bill of Rights’ [2013]
EHRLR 137-151.
91
HL Deb, 20 June 2013, vol 746, col 445.
92
F Klug, ‘The Human Rights Act is a British Bill of Rights’ The Guardian (13 December 2012) <
http://www.theguardian.com/commentisfree/2012/dec/13/human-rights-act-british-bill-rights > Accessed 1
October 2013.

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argument for a BoR was that the ‘Act was so damaged in popular consciousness that a
rebranding exercise is imperative.’93
Unfortunately as Elliot suggests, little explanation is
offered to support this conclusion.94
A starting point for this ‘ownership issue’ is said to be the lack of education and public
engagement before and during the Acts implementation95
and throughout its life.96
There is no
doubt that the Act has failed to become fully integrated politically97
and this is inconsistent
with the introduction of constitutional documents.98
A dangerous misconception about human
rights in the UK99
is evidenced by the fact that the general public, victims and even public
authorities have insufficient knowledge of human rights100
and the HRA.101
Without
understanding, support and ownership is unlikely to follow. Fenwick states the HRA ‘was
never really sold to the people of the UK’.102
The Commission dismissed this as a minor cause
however, as further educative incorporation would still fail to overcome the critical narrative
of the media or the intense politicisation of rights.103
This lack of educative role does become more problematic however when the more substantial
cause of the ownership issue is the way the Act has been openly criticised by political MPs104
93
Goss R, ‘What is the Bill of Rights Commission’s ‘strong argument’?’ (UK Const. L. Blog 20th December
2012) < http://ukconstitutionallaw.org/2012/12/20/ryan-goss-what-is-the-bill-of-rights-commissions-strong-
argument/ > Accessed 7 February 2013.
94
Elliot (n 90) 141.
95
Rights Brought Home (n 75).
96
F Klug, ‘A Bill of Rights: Do We Need One or Do We Already Have One? (2007) Public law (Winter) 701-
719.
97
C Harvey, ‘Taking the Next Step? Achieving another Bill of Rights’ [2011] 11 (1) European Human Rights
Law Review 24.
98
See Joint Committee on Human Rights, A Bill of Rights for the UK? (2007-08, HL 165, HC 150).
99
A Donald, P Leach & A Puddephatt, Developing a Bill of Rights for the UK (London: Equality and Human
Rights Commission Research Report 51, 2010) < http://www.equalityhumanrights.com/legal-and-policy/bill-of-
rights/developing-a-bill-of-rights-for-the-uk-research-report/ > Accessed 10 August 2013.
100
Ministry of Justice, People and power: shaping democracy, rights and responsibilities (March 30, 2010) <
http://www.opendemocracy.net/ourkingdom/anthony-barnett/people-and-power-shaping-democracy-rights-and-
responsibilities-brown-gove > Accessed 25 March 2014, 4; See also A Donald, P Leach & A Puddephatt,
Developing a Bill of Rights for the UK (London: Equality and Human Rights Commission Research Report 51,
2010) < http://www.equalityhumanrights.com/legal-and-policy/bill-of-rights/developing-a-bill-of-rights-for-the-
uk-research-report/ > Accessed 10 August 2013.
101
Department for Constitutional Affairs, ‘Review of the Implementation of The Human Rights Act’ July 2006
< http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/peoples-rights/human-
rights/publications.htm > Accessed 5 January 2013; see A Wagner, ‘No, The Sun, the Human Rights Act is not
the EU’ (UK Human Rights Blog February 10 2013) < http://ukhumanrightsblog.com/?s=the+sun > Accessed
October 2013.
102
H Fenwick, Civil Liberties and Human Rights (Routledge-Cavendish, 2007) 156.
103
Goss R, ‘What is the Bill of Rights Commission’s ‘strong argument’?’ UK Const. L. Blog (20th December
2012) < http://ukconstitutionallaw.org/2012/12/20/ryan-goss-what-is-the-bill-of-rights-commissions-strong-
argument/ > Accessed 7 February 2013.
104
BBC, ‘Home Secretary Theresa May wants Human Rights Act axed’ BBC News Politics (2 October 2011) <
http://www.bbc.co.uk/news/uk-politics-15140742 > Accessed 2 March 2014.

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and misrepresented by the media.105
For example, the HRA has often been labelled as a ‘charter
for terrorists and criminals’.106
This hostility can be intrinsically linked to the fact that
Parliament feels constrained on supposed political decisions involving sensitive matters such
as counter-terrorism.107
The lack of support then is not surprising as it is these areas where
public fears are most roused. Klug believes that had the world not shifted on its axis after 9/11,
then the HRA may well have proved less controversial and been more owned.108
Nonetheless
it is argued that, whether warranted or not, the current climate of disrespect created by political
hostility and heightened by the media will be difficult to undo.109
The more exclusive cause of this public ownership issue however is claimed to be the Act’s
lack of British-ness in this typically nationalist state. It can be argued that this is mainly
attributable to Euroscepticism. The fact that the Act is externally linked by the ECHR to the
ECtHR, where British courts must ‘take into account’ Strasbourg’s sometimes creative
jurisprudence,110
results in ‘people often feeling alienated from a system seen as European and
not British’.111
Sells QC states that this ‘was never going to be popular’.112
People clearly see
the protections of the HRA as ‘Convention rights’ rather than constitutional rights. This has
meant that the Act is seen as an ‘alien import’113
which has not become an embedded part of
our national identity.
Elliot goes further and suggests a much wider underlying problem; an antipathy towards the
universal nature of human rights.114
This is illuminated by the general resentment towards the
Act’s unfortunate association with prioritising the rights of the claimed ‘underserving’ over the
105
DCA (n 101).
106
J Slack, ‘I Want to Scrap the Human Rights Act but Nick Clegg Won’t Let Me’ Daily Mail (3 October 2011)
< http://www.dailymail.co.uk/news/article-2044530/David-Cameron-I-want-scrap-Human-Rights-Act-Nick-
Clegg-wont-let-me.html > Accessed October 2013.
107
See below Chapter 3.2 A Transfer of Power.
108
Klug (n 96).
109
Amos (n 77).
110
HRA, s 2; See below Chapter 3.3 ‘Argentoratum locutum, iudicium finitum’- ‘Strasbourg has spoken, the
case is closed’.
111
HL Deb, 20 June 2013, vol 746, col 445.
112
The Commission’s Report (n 85) 144.
113
Political and Constitutional Reform Committee, Minutes of Evidence UK Bill of Rights Commission (16
June 2011) < http://www.publications.parliament.uk/pa/cm201012/cmselect/cmpolcon/1049/11061601.htm >
Accessed 22 March 2014, (Martin Howe), answers to Q77 & 80.
114
Elliot (n 90).

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interests of the wider community.115
Again this comes down to a lack of understanding of
human rights.
What is clear at this stage is that assessed against the symbolic nature of a BoR,116
the HRA
has ‘failed to pass muster’.117
Its real potential of promoting and embedding human rights, as
Khan states, has not been realised.118
3.2 A Transfer of Power
At the centre of criticism of the HRA is that it has been the catalyst of an unprecedented
constitutional transfer of power within the UK, from the executive and the legislature to the
judiciary.119
Some clarity is needed here. This is not a criticism of the court’s overall power to
review government’s general actions, which is generally accepted as necessary in a modern
society governed by the rule of law.120
But the perception has arisen that the courts are now
somewhat overstepping the mark of their new power,121
and moving into the forum of the
legislature.122
Laws LJ echoes a widely held view that there is ‘an important difference between
the protection of fundamental rights and the formulation of state policy… the former is the
business of the courts, the latter is the business of government.’123
He continues ‘The challenge
of our human rights law is that it appears to merge these ideas.’
The most often cited evidence of this is within areas where judges, due to their powers and the
vague and broadly defined HRA rights,124
inquire into the appropriate balance between an
individual’s rights and the conflicting public interest.125
There are those that assert that judges
115
Kaur-Ballagan K, Castell S, Brough K and Friemert H, Public Perceptions of Human Rights (Equality and
Human Rights Commission, June 2009) < http://www.equalityhumanrights.com/human-rights/our-human-
rights-work/human-rights-inquiries/our-human-rights-inquiry/ > Accessed 25 March 3014.
116
See Chapter 1.3.2 More than just a legal document.
117
Klug (n 96).
118
Khan (n 79) 106.
119
A Kavanagh, Constitutional Review under the UK Human Rights Act (CUP, Cambridge 2009), 2.
120
Lord Neuberger of Abbotsbury, ‘Who Are the Masters Now?’ (The Second Lord Alexander of Weedon
Lecture, 6 April 2011) < http://www.judiciary.gov.uk/NR/rdonlyres/F402769A-196C-47E3-B5D9-
AAA1EEE096F3/0/mrspeechweedonlecture110406.pdf > Accessed 11 October 2013.
121
Mark Elliot, ‘Law, Rights, and Constitutional Politics’, Legal Studies Research Paper Series, December
2013, Paper NO. 55/2013, available at < http://www.law.cam.ac.uk/ssrn/ > Accessed January 15 2014.
122
O’Cinneide C, Human Rights and the UK Constitution (British Academy Policy Centre, 2011).
123
Lord Justice Laws, ‘Lecture III: The Common Law and Europe’ (Hamlyn Lectures 27 November 2013) <
www.Judiciary.gov.uk > Accessed January 2 2014, p.12.
124
HRA, s 1.
125
Cameron (n 80).

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have undesirably balanced126
these inquiries in favour of foreign terrorists or asylum seekers
claiming the right to family life (Article 8127
) in deportation cases for example;128
subsequently
undermining the immigration system. In 2011-12 alone, 177 foreign criminals avoided
deportation after citing Article 8.129
Although judicial decisions which fail to align with the thinking of the moral majority are not
illegitimate,130
politicians claim that the Act has had a ‘damaging impact on our ability to
protect society against terrorism’.131
Some believe that such actions are out of sync with
British132
and other state traditions of governance. France, also a party to the ECHR, has been
able to deal with such threats more robustly; the French judiciary being reluctant to overturn
their government’s deportation decisions.133
Pinto Duschinsky says that it is dangerous to
permit judges to become ‘politicians in robes’.134
Criticism is further directed at the interpretative provision of s.3(1) where the courts interpret
Parliament’s legislation, ‘as far as it is possible’, in a way that is Convention compatible. 135
Lord Nicholls has questioned to what criterion is ‘possible’ judged? To which he states that a
definitive answer is allusive.136
This ambiguity in the Acts wording is claimed to have given
judges power to abandon the original meaning of legislation and supplement a different
126
Charles Clarke, Speech to Heritage Foundation (Washington DC, October 2005) <
http://charlesclarke.org/archives/category/speeches/page/10 > Accessed 9 March 2014 ‘The right to be protected
from the death and destruction caused by indiscriminate terrorism is at least as important the right of the terrorist
to be protected from torture and ill treatment’.
127
HRA, Art 8.
128
EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 A.C. 1198.
129
BBC, ‘Theresa May criticises judges for ignoring deportation law’ BBC News (16th February 2013) <
http://www.bbc.co.uk/news/uk-21489072 > Accessed 11th February 2013.
130
Mark Elliot, ‘A human rights reality check for the Home Secretary’ (UK human rights blog February 13
2013) < http://ukhumanrightsblog.com/2013/02/18/a-human-rights-reality-check-for-the-home-secretary-dr-
mark-elliott/ > Accessed 15 October 2013.
131
Cameron (n 80).
132
C O’Cinneide, ‘Human rights law in the UK - is there a need for fundamental reform?’ [2012]
E.H.R.L.R. 6, 595.
133
F Foley, Countering Terrorism in Britain and France: Institutions, Norms and the Shadow of the Past (CUP
2013).
134
Pinto-Duschinsky M, Bringing Rights Back Home: Making human rights compatible with parliamentary
democracy in the UK (London: Policy Exchange, 2011) < www.policyexchange.org.uk > Accessed September
20 2013.
135
HRA, s 3(1) ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and
given effect in a way which is compatible with the Convention rights’.
1
Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 [27] (Nicholls L) ‘[S]ection 3 itself is not free
from ambiguity. The difficulty lies in the word ‘possible’....What is not clear is the test to be applied in
separating the sheep from the goats. What is the standard, or the criterion, by which ‘possibility’ is to be
judged?’.

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(although supposed ‘rights–compatible’) meaning from that which Parliament intended.137
Masterman argues that the scope for judicial discretion is potentially enormous.138
Some argue that s.3(1) exacerbates the claimed undemocratic judicial activism because this
power, can only be wielded with reference to judge’s personal views on social or moral issues
pertinent to Convention rights,139
constructing an illegitimate invention of what most
meritorious policy Parliament should follow.140
In doing this, fewer cases result in a declaration
of incompatibility.141
This takes the choice of whether to retain ECHR inconsistent law or
amend it, away from Parliament;142
something which Baroness Hale doubts Parliament
intended when enacting s 3(1).143
Lord Steyn has highlighted that Parliament can in theory reply
by amending the legislation, overruling the interpretation144
and indeed there is a limitation in
s.3 (2)(b).145
Yet knowing that the HRA’s legal bite comes from a likely subsequent case to
Strasbourg where the UK is bound in international law, disregards the likelihood of such an
amendment.
Some go as far in suggesting that the courts possess greater power than under traditional BoR
models; instead of striking down legislation, they are rewriting and remolding it to be compliant
with their own construction of human rights.146
3.3 ‘Argentoratum locutum, iudicium finitum’- ‘Strasbourg has spoken, the case is closed’147
Arguably the most dominant criticism of the HRA is that it has helped facilitate a further
transfer of power; from the UK (domestic courts) to Europe (the ECtHR). It is submitted by
137
Justice Dyson Heydon, ‘Are Bills of Rights Necessary in Common Law Systems?’ (Inner Temple Reader’s
Lecture Series, 21st January 2013) < http://www.innertemplelibrary.com/2013/03/are-bills-of-rights-necessary-
in-common-law-systems-justice-dyson-heydon-ac/ > Accessed October 2013.
138
I Leigh and R Masterman, Making Rights Real: the Enforcement of the Human Rights Act (Oxford: Hart
Publishing, 2007) 123. See Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 AC
440, concerning control orders.
139
ibid.
140
Jonathan Sumption Q.C, ‘Judicial and Political Decision Making: The Uncertain Boundary’ (F.A. Mann
lecture for 2011) < http://www.theguardian.com/law/interactive/2011/nov/09/jonathan-sumption-speech-
politicisation-judges > Accessed March 2013.
141
HRA, s 4.
142
HRA s 10.
143
B Hale, ‘High Points and Low Points in the First Ten Year: A View from the Bench’ in Kang-Riou N,
Confronting the Human Rights Act 1998: Contemporary themes and perspectives (Routledge 2012).
144
Ghaidan (n 136) [63] (Steyn L).
145
HRA, s 3 (2)(b),‘This section [Section 3] does not affect the validity, continuing operation or enforcement of
any incompatible primary legislation’.
146
Heydon (n 137).
147
AF v Secretary of State for the Home Department (No 3) [2009] UKHL 28, [2009] 3 WLR 74 [98].

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opponents that the Act has linked UK law too closely to Strasbourg’s creative jurisprudence
through s.2(1).148
Much controversy has surrounded the supposed simple language149
of s.2(1) and the appropriate
weight placed on the further requirement on domestic courts to ‘take account’ of Strasbourg
jurisprudence when applying the Convention. 150
An initial intention of the HRA was to allow
domestic judges to make a distinctively British contribution to UK human rights law.151
This
unfortunately has not materialised. S.2(1) has been rapidly transformed by the judiciary to
mean that domestic courts are ultimately bound to follow ECtHR case law. This is inconsistent
with Parliamentary intentions.152
Originating in R(Alconbury),153
and confirmed in Ullah,154
this obligation is known as the
‘mirror’ or ‘Ullah’ principle. UK human rights law should, in its scope, ‘mirror’ its Strasbourg
equivalent; an approach which has persevered.155
Many have claimed that this represents a
‘wrong turning’ in UK law however,156
partly because some ECtHR decisions are seen as
wrong and insensitive to domestic ideas and undermine ‘the autonomous development of
human rights law’ by UK courts.157
Cases such as Gillan158
and AF (No 3)159
evidence this. Lord
Hoffman in the latter believed the ECtHR’s160
decision to be damaging to our national
interest.161
There have been situations when the courts have departed from Strasbourg’s case
148
HRA, s 2; O’Cinneide ‘Fundamental Reform?’ (n 132).
149
Lord Irvine, ‘A British Interpretation of Convention Rights’ (Bingham Centre for the Rule of Law Lecture
Hosted by UCL Judicial Institute 2011) < www.ucl.ac.uk > Accessed October 2013.
150
HRA, s 2(1) ‘A court or tribunal determining a question which has arisen in connection with a convention
right must take into account any… (A) Judgement, decision, declaration or advisory opinion of the ECtHR’.
151
HL Deb, 3 November 1997, vol 582 col 1227.
152
HL Deb, 5 February 1998, vol 585, col 755; HL Deb, 3 November 1997 vol 582, col 1228; HL Deb 8
November 1997 vol 583, cols 511-515, vol 584, cols 1270-1271. See also Rights Brought Home: Human Rights
Bill HL (1997 -98) 119. [1.14], [2.4], [2.5]; HL Deb, 18 November 1998, vol 594 Cols 514-515 (Irvine L).
153
R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and
the Regions [2001] UKHL 23, [2003] 2 AC 295 [26] (Lord Slyn).
154
R v. Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant) [2004] UKHL 26, [2004] 2 AC 323
[20] (Lord Bingham).
155
Pinnock v Manchester City Council [2010] UKSC 45 [2010] 3 WLR 1441; See also Kay v Lambeth LBC [2006]
2 AC 465; Doherty v Birmingham City Council [2009] 1 AC 367; Kay v United Kingdom (37341/06) [2011] HLR
2; B and another v Secretary of State for Justice [2011] EWCA Civ 1608, [2012] 1 W.L.R. 2043; R (Chester) v
Secretary of State for Justice [2013] UKSC 63, [2013] 3 W.L.R. 1076.
156
Lord Justice Laws (n 123).
157
ibid.
158
Gillan and Quinton v UK (4158/05) (2010) 50 EHRR 45.
159
AF (n 147).
160
A v United Kingdom (2009) 49 EHRR 625.
161
AF (n 147) [70] ‘I think that the decision of the ECtHR was wrong and that it may well destroy the system of
control orders which is a significant part of this country's defences against terrorism’.

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law,162
but such a departure is only justified in exceptional circumstances, and thus strictly
limited. Lord Irvine stated that the court must have a choice on whether to give effect to their
judgements.163
In practice this choice appears to be absent. A substantial argument advocated
is that UK judges constantly have one eye on not placing the UK in breach of its international
obligations164
as was expressed by Lord Hoffman in AF165
and recently by Lord Sumption in
Chester.166
Lord Irvine and Laws LJ both agree that it is not for judges to consider international
relations and foreign policy and this should certainly not justify discharging their constitutional
duty.167
Thus many have called for the ‘Ullah’ principle to be revisited in order to allow a ‘home grown’
jurisprudence to develop168
and for the Supreme court to be ‘Supreme’.169
Lord Kerr captures
this attitude, stating ‘“Argentoratum locutum, nunc est nobis loquendum” – Strasbourg has
spoken, now it is our time to speak’.170
This is so especially considering that this principle can
be linked with the HRA and the Convention being seen as alien influences.171
For various politicians, lawyers and even judges this transfer of power is particularly
problematic as they believe that the ECtHR has overreached itself in its interpretations.172
Strasbourg, since the case of Tyrer,173
has developed the ‘living instrument’ approach. This
involves interpreting the Convention in light of contemporary social and moral attitudes across
Europe,174
so as to keep it relevant. Although desirable on the face of it, it is argued that this
162
R v Horncastle and Others [2009] UKSC 14; Al-Khawaja & Tahery v United Kingdom (2012) 54 EHRR 23;
R (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport
[2008] UKHL 15, [2008] 1 AC 1312; Austin v United Kingdom (2012) 55 EHRR 14. See also R Masterman,
‘The Mirror Crack’d’ (UK Const. L. Blog 2013) < http://ukconstitutionallaw.org > Accessed January 2013.
163
Lord Irvine (n 149).
164
ECHR Art 46 (1) ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any
case to which they are parties’; See recently Del Rio Prada v Spain [2013] ECHR 307.
165
AF (n 147).
166
R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2013] 3 W.L.R. 1076.
167
Lord Irvine (n 147).
168
O’Cinneide ‘Fundamental Reform?’ (n 132).
169
O Bowcott, ‘European court is not superior to UK supreme court, says Lord Judge’ The Guardian, (4th
December 2013) < http://www.theguardian.com/law/2013/dec/04/european-court-uk-supreme-lord-judge >
Accessed 16 February 2014.
170
Lord Kerr, ‘The UK Supreme Court: The Modest Underworker of Strasbourg?’ (Clifford Chance Lecture,
25th January 2012) < http://www.supremecourt.gov.uk/docs/speech_120125.pdf >Accessed 15 February 2014.
171
R Masterman, ‘Deconstructing the Mirror Principle’ in R Masterman & I Leigh (eds), The United Kingdom's
Statutory Bill of Rights: Constitutional and Comparative Perspectives (OUP/British Academy 2013); See
Chapter 3.1 The ‘Ownership’ Issue.
172
Lord Sumption, ‘The Limits of Law’ (27th Sultan Azlan Shah Lecture, Kuala Lumpur 20 November 2013) <
http://supremecourt.uk/news/speeches.html > Accessed 20 January 2014; for the original interpretative
guidelines of the ECtHR see the Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into
force 27 January 1980) 1555 UNTS 331, Art 31-33.
173
Tyrer v UK [1979-80] 2 EHRR 1.
174
Goodwin v UK (2002) 35 EHRR 447.

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has allowed the court to expand its jurisdiction into the making of political decisions.175
This
expansionist approach has led to claims that the margin of appreciation (the courts recognition
that the Convention will be interpreted differently in Member States176
) is being applied too
narrowly and that Strasbourg is micromanaging Member States.177
This is evidenced in various
cases,178
none more so than the ongoing Hirst saga where the UK, in defiance of Strasbourg,
has continued to refuse prisoners the right to vote.179
UK Judges submit that there cannot be a ‘single correct interpretation, a universal jurisprudence
across the boundaries of signatory states’180
and that human rights instead are universal in
abstraction but national in application.181
Neuberger offers some reasoning by asserting that the
British are peculiarly averse to ‘being told what they can and can’t do by pan-European
bodies’,182
especially when as he highlights, the Convention does not loom so large in the
German written constitution for example.183
Even proponents of the court are worried by the limits of the ‘living instrument’.184
By overly
expanding the Conventions meaning there is a risk of trivialising and thus discrediting rights.
Laws LJ states ‘We are entitled to think that human rights are like the human heart; the bigger
they get, the weaker they get’.185
In fact there are those that believe a reason for British courts overstepping the mark is because
they are following Strasbourg’s attitude of rights interpretation, something which Raab calls
‘rights contagion’.186
175
Jonathan Fisher QC, Rescuing Human Rights (The Henry Jackson Society 2012).
176
Buckley v UK (1996) 23 EHRR 101 [75]; See also D Popovic, The Emergence of the European Human
Rights Law: An Essay on Judicial Creativity (Eleven International Publishing 2011).
177
Lord Hoffman, ‘The universality of human rights’ (2009) 125 LQR 416.
178
S and Marper v United Kingdom (2009) 48 EHRR 50; Redfearn v. United Kingdom [2012] ECHR 1878;
Vinter and Others v UK (9 July 2013 ECHR).
179
The Representation of the People Act 1983, s 3; Hirst v the United Kingdom (No 2) [2005] ECHR 681;
Scoppola v Italy (No 3) [2012] ECHR 868; See also R (Chester) (n 166), McGeoch (AP) (Appellant) v The Lord
President of the Council and another (Respondents) (Scotland) [2013] UKSC 63.
180
Lord Justice Laws (n 123).
181
Lord Hoffman (n 176).
182
Lord Neuberger, The British and Europe, (Cambridge Freshfields Annual Law Lecture 12 February 2014) <
http://supremecourt.uk/news/speeches.html > Accessed 18 February 2014.
183
ibid.
184
Lady Hale, ‘Beanstalk or living instrument, how tall can the ECHR grow?’ (Barnard Inn Reading 16th
June
2011) < http://supremecourt.uk/news/speeches.html > Accessed July 2013.
185
Lord Justice Laws (n 123).
186
D Raab, The Assault on Liberty: What went wrong with Rights? (Fourth Estate 2009).

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Final Thoughts
From these highlighted criticisms of the HRA and the Convention system it is evident that a
future alteration of UK human rights law is inevitable and imperative.187
Despite the substantial
positive effect the HRA has had on areas of UK law,188
it cannot be doubted that the Act has
failed to capture public imagination and fulfil the requirements of a BoR. As Harvey states the
HRA is seen as ‘simply another Act of Parliament, no more and no less’.189
It has also been a
catalyst for a claimed problematic transfer of power from Parliament to the judiciary190
and
then to Europe, which has seen a shift towards legal constitutionalism. Although the issues
shown are distinct, there is a clear interlinking relationship between them which appears to put
the Strasbourg court squarely in the spotlight.
It is argued then that only significant constitutional change in the form of altering the
relationship between the UK and the Convention regime would allow a BoR to address these
issues191
. The chameleonic nature of the Commission’s report and the lack of any consensus
meant there was no concrete UK BoR model put forward.
Many believe, including senior Conservatives192
and even some members of the Commission,
that human rights in the UK would be better served by complete withdrawal from the
Convention and enactment of a BoR.193
Thus a BoR would be utilised to weaken the ties to
Strasbourg and increase parliamentary autonomy in human rights matters.194
The possibility of
this option must then be considered. The Commission failed to address this, mainly because it
187
Lord Anthony Lester, ‘An Personal Explanatory Note’ in Commission on a Bill of Rights, A UK Bill of
Rights: The Choice Before Us (18 December 2012,Vol 1) < http://www.justice.gov.uk/about/cbr > Accessed 2
January 2013.
188
DCA (n 101).
189
Harvey (n 97).
190
Sumption Q.C (n 140).
191
Elliot ‘Constitutional Politics’ (n 121).
192
M Elliot, ‘Theresa May and Chris Grayling on human rights’ (Public Law for Everyone, 30 September 2013)
< http://publiclawforeveryone.wordpress.com/2013/09/30/theresa-may-and-chris-grayling-on-human-rights/ >
Accessed 10 October 2013. See for an overview, H Fenwick, ‘Replacing the HRA with a Bill of Rights in N
Kang-Riou, Confronting the Human Rights Act 1998: Contemporary Themes and Perspectives (Routledge
2012).
193
See Lord Faulks QC & J Fisher QC, ‘Unfinished Business’ in Commission on a Bill of Rights, ‘A UK Bill of
Rights: The Choice before us’ 18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2
January 2013.
194
H Fenwick, ‘Replacing the HRA with a Bill of Rights’ in N Kang-Riou, Confronting the Human Rights Act
1998: Contemporary Themes and Perspectives (Routledge 2012) 293.

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was required not to deviate from the ECHR in any way, but also because of reluctant
commissioners.195
Although it could be argued that the Commission’s rebranding proposal for a BoR196
is likely
to have little to no effect considering the stated problems,197
it is still necessary to also consider
such a model as it is possible that it could provide a workable solution. For instance, a British
infused BoR, with ‘language reflecting our own heritage and tradition’ could in part address
the ownership issue. While a BoR could also potentially place the UK securely within the
margin of appreciation and, by analogy to the Grundgesetz in Germany,198
result in a more
lenient approach from Strasbourg due to a specific constitutional rights document within the
UK.199
This could be coupled with possible altered versions of HRA sections200
and allow a
slightly different balance to be struck between individual rights and the public interest.201
The next two chapters will look then to consider the possibility of these two very different
potential avenues for a UK BoR, by analysing whether specific fundamental factors could
undermine the possibility and effectiveness of the two models. Firstly, would a somewhat
Conservative UK BoR decoupled from the ECHR be possible or have the desired effect, when
considering the legal and political implications of the European legal landscape? Secondly,
would the Commission’s British rebranded UK BoR be able to sufficiently address the
‘ownership’ issue, considering the legal and political implications of devolution in the UK?
195
P Sands & H Kennedy, ‘In Defence of Rights’ in Commission on a Bill of Rights, ‘A UK Bill of Rights: The
Choice before us’ 18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013.
196
Wagner ‘A Modest Proposal’ (n 89).
197
Elliot ‘Damp Squib’ (n 90).
198
The Basic Law for the Federal Republic of Germany 1949.
199
Cameron (n 80).
200
HRA, ss 2 & 3.
201
Commission on a Bill of Rights, A UK Bill of Rights: The Choice Before Us (18 December 2012,Vol 1) <
http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013, para 12.9.

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CHAPTER 4
Denunciation and EU Law
Despite being part of the impetus for the establishment of the Commission, their report failed
to address the ‘elephant in the room’;202
the possibility of a UK without the ECHR. For many,
this was a missed opportunity and even led to some Commissioners stating that there was thus
‘unfinished business’.203
In this context less dramatic change, which attempted to alter the relationship between
Strasbourg and the UK by placing greater emphasis on the margin of appreciation and
subsidiarity, was pursued by the Government.204
The reality of their watered down effect
however is generally seen as failing to satisfy the need for change wanted by opponents of
Strasbourg205
and any significant reform of the court now appears to be distant.
The purpose of this chapter then is to analyse the possibility of the ‘nuclear option’ of
withdrawing from the ECHR.206
Specific attention will first be drawn to the Charter of
202
Elliot ‘Damp Squib’ (n 90).
203
Lord Faulks QC & J Fisher QC, ‘Unfinished Business’ in Commission on a Bill of Rights, A UK Bill of
Rights: The Choice before us 18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2
January 2013.
204
See the Interlaken Declaration adopted on 19th
February 2010; The Izmir Declaration adopted on 27th
April
2011; The Brighton Declaration adopted 20th
April 2012.
205
M Elliot, ‘Mark Elliott: The Brighton Declaration: where now for the Human Rights Act and the Bill of
Rights debate?’ (UK Const. L. Blog 25 April 2012) < http://ukconstitutionallaw.org/2012/04/25/mark-elliott-
the-brighton-declaration-where-now-for-the-human-rights-act-and-the-bill-of-rights-debate/. > Accessed
January 2013.
206
A Travis ‘Conservatives Promise to Scrap Human Rights Act After Next Election’ The Guardian 30
September 2013) < http://www.theguardian.com/law/2013/sep/30/conservitives-scrap-human-rights-act >
Accessed 2 November 2013 ; See also, Press Association, ‘Cameron: I'd withdraw from human rights
convention to keep UK safe' The Guardian ( 29 September 2013) <
http://www.theguardian.com/politics/2013/sep/29/david-cameron-human-rights-convention > Accessed 12
February 2014; M. Pinto-Duschinsky, Bringing Rights Back Home: Making Human Rights Compatible with
Parliamentary Democracy in the UK (London: Policy Exchange, 2011) < www.policyexchange.org.uk >

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Fundamental Rights207
and what effect its new found legal status would have on an ECHR-less
BoR ability to release the UK from its international obligations.208
It will then be assessed
whether complete withdrawal from the Convention is realistically possible. Thought will be
given to the various legal and political considerations, especially regarding membership of the
EU and CoE, in addition to the Treaty of Lisbon’s209
other important legal changes.
4.1. The effect of the Charter and EU Law
The Charter of Fundamental Rights of the European Union (the Charter),210
proclaimed in Nice
in 2000, is an EU piece of legislation which has consolidated and codified existing EU sources
to create a free standing instrument of rights within the EU.211
Innovative in nature, the charter
contains extensive economic and social rights alongside the more traditional civil and political
rights contained in the ECHR. Moreover it also codifies modern third generation rights such as
the right to a clean environment.212
The Charter has now gained the same legal status and power as the EU treaties via s.6 (1) TEU,
213
as amended by the Lisbon Treaty and is thus binding on Member States (UK) when
implementing EU law.214
The Court of Justice of the European Union (CJEU), the Charters
adjudicator, has evidenced this through its increased use of the Charter to enforce fundamental
rights since 2009.215
The UK is thus bound by the charter when acting in the scope of EU law.
Accessed September 20 2013; Joint Committee on Human Rights, Draft Report: Why the Human Rights Act
must be Scrapped (32nd
Report, Formal Minutes, 7 November 2006) <
http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/278/27811.htm > Accessed 21 March 2014.
207
Charter of Fundamental Rights of the European Union [2000] OJ C 364/01, [2010] OJ C 83/389 (The
Charter).
208
ECHR, Art 46.
209
Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European
Community [2007] OJ C 306/01 (Lisbon Treaty).
210
The Charter (n 206).
211
S Douglas-Scott, ‘The European Union and Human Rights after the Treaty of Lisbon’ (2011) 11 (4) HRLR
645-682.
212
The Charter, Art 37.
213
Consolidated version of the Treaty on European Union [2012] OJ C 326 (TEU), Art 6(1) ‘The same legal
value as the Treaties’.
214
The Charter, s 51(1).
215
G De Burca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights
Adjudicator?’ (2013) 2 20 Maastricht Journal of European and Comparative Law 168.

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Although there was initially some confusion216
as to whether the UK was subject to the Charter
due to Protocol 30 to the Lisbon Treaty,217
the CJEU218
and UK courts have now clarified that
the Charter does in fact extend to the UK.219
After analysing the preamble to the Protocol, they concluded that ‘Article 1(1) of Protocol No
30 explains Article 51 of the Charter with regard to the scope thereof and does not…exempt
the… UK from the obligation to comply with the… Charter’.220
The Protocol, strictly
interpreted,221
clarifies only that the Charter does not ‘extend’ the competence of the CJEU or
UK courts. This however does not limit their existing competencies of reviewing national law
against the fundamental rights that the Charter clearly ‘reaffirms’.222
Where the Protocol does
appear to have teeth is in limiting, via Article 1(2), the justiciability of extensive social and
economic rights223
in the UK, where there has been a history of skepticism over such rights.224
The relevance of this to the current argument starts with s.52 (3).225
This states that any rights
which the ‘Charter contains… which correspond226
to rights guaranteed by the Convention,227
216
See HC Deb 25 June 2007, cols 37, 39 (Tony Blair); See also R Mason, ‘Chris Grayling Seeks Legal
Clarification over EU Charter of Fundamental Rights’ The Guardian (19 November 2013) <
http://www.theguardian.com/politics/2013/nov/19/chris-grayling-clarification-eu-charter-rights > Accessed
December 20 2013.
217
Protocol No 30 to the Lisbon Treaty on the Application of the Charter of Fundamental Rights of the
European Union to Poland and the United Kingdom [2010] OJ C 83/313, Art 1(1) ‘The Charter does not extend
the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United
Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the
United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
(2). In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights
applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for
such rights in its national law.’
218
Cases C-411/10 and C-493/10 NS v Secretary of State for the Home Department and ME et al v Refugee
Applications Commissioner and Minister for Justice, Equality and Law Reform [2011] ECR I, [2012] 3 WLR
1374, paras [116 -122].
219
R (AB) v Secretary of State for the Home Department [2013] EWHC 3453 (QB) [14-15].
220
NS (n 217) para 120.
221
Case C-150/99 Sweden v Stockholm Lindopark AB [2001] ECR I-493, para 25.
222
D Anderson Q.C & Cian C. Murphy, ‘The Charter of Fundamental Rights: History and Prospects in Post-
Lisbon Europe, (2011) Cadmus EUI Research Depository, EUI Working Paper LAW 2011/08, available at <
http://cadmus.eui.eu/handle/1814/17597 > Accessed 28 December 2013.
223
The Charter, Title IV.
224
Ministry of Justice, Rights and Responsibilities: Developing Our Constitutional Framework, (Cm 7577,
2009) para. 3.52.
225
The Charter, s.52(3), ‘In so far as this Charter contains rights which correspond to rights guaranteed by the
Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those
rights shall be the same as those laid down by the said Convention’.
226
A list of corresponding rights are clearly stated in the Explanations relating to the Charter of Fundamental
Rights [2007] OJ C 303/17; the right to life, the prohibition of torture, the prohibition on slavery and forced
labour, the right to liberty and security, respect for private and family life, freedom of thought, conscience and
religion, freedom of expression and information, freedom of assembly and association, right to property,
protection in the event of removal, expulsion or extradition, and the presumption of innocence and right of
defence, have the same meaning and scope as the corresponding Articles of the ECHR.
227
ECHR.

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the meaning and scope of those rights shall be the same’ as those protected under the
Convention. Such a provision ensures the absence of two differing human rights standards,
setting the ECHR as the minimum human rights protection within the EU.228
Indeed, the CJEU
itself has stressed the equivalence of the two instruments.229
S.52 (3) makes no express reference to the ECtHR. However, as shown below, Strasbourg is
integral to the ECHR;230
its living instrument approach has shaped the Convention. It can be
argued that the ECtHR’s case law has simultaneously been incorporated into EU law,231
its
authoritative interpretations would form part of the meaning and scope of corresponding rights
in the Charter.232
This is consistent with the preamble to the Charter, ‘The Charter reaffirms…. The rights as
they result, in particular, from… the case law of the… ECtHR’233
and is confirmed in the
Explanations on Article 52,234
which state that Charter rights are also ‘[D]etermined by... the
case-law of the ECtHR’. Subsequently, when interpreting the scope of corresponding Charter
rights, the CJEU is in theory bound by the Convention and its interpretation by the ECtHR.
Lock in his article does argue that due to the wording of s.52(7),235
the CJEU only has to ‘duly
regard’ the ECtHR’s interpretations.236
Theoretically the CJEU is not formally a subordinate to
the ECtHR, instead their relationship can be seen as one of judicial dialogue.237
However Art.
6(1) TEU places significant authority on the explanations.238
Moreover the CJEU has evidenced
228
Tobias Lock, ‘The ECJ and the ECtHR: The Future Relationship Between the Two European Courts’ (2009)
The Law and Practice of International Courts and Tribunals 8, 375–398.
229
Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen
[2010] ECR I- 11063, [2012] All E.R. (EC) 127; See also R (Zagorski and Baze) v Secretary of State for
Business, Innovation and Skills [2010] EWHC 3110 (QB) [73].
230
See Chapter 4.2 Withdrawing from the ECHR: The Possibility and its Consequences.
231
Weiss, ‘Human Rights in the EU: Rethinking the Role of the European Convention on Human Rights After
Lisbon’ (2011) 7 (1) European Constitutional Law Review 64.
232
Koen Lenaerts and Eddy de Smijter, ‘The Charter and the Role of the European Courts’, 8 Maastricht Journal
of European Law (2001) 90, 99; The Charter, S.52 (3).
233
The Charter.
234
Explanations relating to the Charter of Fundamental Rights [2007] OJ C 303/17, Explanations on Article 52
– Scope and interpretation of rights and principles.
235
The Charter, S.52 (7) ‘The Explanations… shall be given due regard by the courts of the Union and of the
Member States’.
236
Lock (n 227).
237
S Morano-Foadi, ‘Fundamental Rights in Europe: Constitutional dialogue between the Court of Justice of the
EU and the European Court of Human Rights’ (2013) 5(1) Sortuz, Oñati Journal of Emergent Socio – Legal
Studies 64-87.
238
TEU Art 6 (1) ‘The rights, freedoms and principles in the Charter shall be interpreted in accordance with the
general provisions in Title VII of the Charter governing its interpretation and application’.

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its adherence.239
In J.McB. v L.E240
the court held that it should follow the clear and consistent
jurisprudence of the ECtHR while Luxembourg judges in turn have admitted that the final word
lies with Strasbourg.241
This relationship where ‘the (CJEU) slavishly follows the case law of
the ECtHR’,242
will however be reinforced by a monist quasi - federal approach once the EU
accedes to the Convention.243
The UK would thus still be bound by the ECtHR’s expansive and problematic interpretations
of the meaning of, and the required balance between, Convention rights, indirectly through the
Charter absorbing Convention rights into EU law.
Any effect of withdrawal from the Convention, repealing of the HRA and introduction of a
BoR, would be limited; the ECHR and Strasbourg would still ‘rule from the grave’244
indirectly
through the Charters parallel relationship with the ECHR.
The real major impact of this is realised by the fact that the Charter, by virtue of being EU law,
gives the ECHR’s rights interpretations and thus Strasbourg’s jurisprudence, primary law
status. EU primary law is given direct effect under the ECA245
and is supreme over national
conflicting law.246
The UK would be obliged to accept, as with the CJEU’s judgements,247
Strasbourg’s rulings. As Lord Denning (referring to EU law) once stated, ‘it flows into the
estuaries and up the rivers, it cannot be held back.’248
Not only would the Convention system
still loom over the UK, its application within the domestic legal order is then significantly
strengthened beyond the HRA’s capabilities.249
This was recently evidenced when UK courts
239
Case C – 279/09 DEB Deutsche Energiehandels and Beratungsgesellschaft mbH v. Bundesrepublik
Deutschland [2010] ECR I-13849, [2011] 2 C.M.L.R. 21 para 37.
240
Case C-400/10 JMcB v LE [2010] ECR I-8965, [2011] 3 WLR 699, para 53.
241
Morano-Foadi (n 236) 79.
242
D Chalmers & others, European Union Law: Cases, and Materials (CUP 2nd
ed. 2010) 261.
243
See 4.2.3 The EU’s accession to the ECHR.
244
R English ‘Watch that Charter’ (UK Human Rights Blog 8 November 2013) <
http://ukhumanrightsblog.com/2013/11/08/watch-that-charter/ > Accessed 10 November 2013. A view similarly
expressed in R (AB) v Secretary of State for the Home Department [2013] EWHC 3453 (QB), para [14] (Mostyn
J).
245
European Communities Act 1972; See also Case 26/62 Van Gend en Loos v Nederlandse Administratie der
Belastingen [1963] ECR 1, [1970] C.M.L.R. 1.
246
R (Factortame Ltd) v Secretary of State for Transport (No 2) [1992] 1 AC 603; See also Case 6/64 Costa v
Enel [1964] ECR 585 [1968] C.M.L.R. 267; See also Weiss (n 232) 64 & 71.
247
European Communities Act 1972, s 3(1).
248
HP Bulmer Ltd & Anor v. J. Bollinger SA & Ors [1974] EWCA Civ 14, [1974] 2 All ER 1226.
249
HRA, s 3(2)(b) & (c), s.4.

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disapplied provisions of the State Immunity Act250
which were contrary to Article 47 of the
Charter,251
allowing two Moroccan women the right to a fair hearing.252
The effect of the Charter is however limited because it is restricted to when a Member State
‘implements Union law.’253
Nonetheless, what this entails is continuously broadening, now
covering when member states ‘act in the scope of Union law’254
which will include the UK
merely derogating from EU law255
or even deciding on an application under EU Regulations.256
The scope of EU law does not include all matters, for example issues relating to the criminal
justice system but can cover sensitive matters such as immigration and asylum, and it is
increasingly difficult to find areas where Union law is totally absent.257
The Charter’s increasing significant effect will thus clearly reduce the effectiveness of any
future ECHR-less BoR and dash any hope of a UK free from Strasbourg. Such a BoR could
however still apply in those circumstances which do not relate to EU law. It must still be
assessed whether withdrawing from the Convention is possible.
4.2 Withdrawing From the ECHR: The Possibility and its Consequences
Initially clarity is needed. As this author and others258
have stated, the problem is not the
Convention itself but rather ‘the role of the court in Strasbourg.’259
However, the reason why
(or what this author assumes) calls for withdrawal mainly concern the Convention itself and
250
The State Immunity Act 1978, ss 4 & 16.
251
The Charter, Art 47 ‘Right to an effective remedy and to a fair trial’.
252
Janah v Libya and Benkharbouche v Embassy of the Republic of Sudan UKEAT/0020/13 /GE, October 3
2013 Unreported; See Joshua Rozenberg, ‘Never Mind Human Rights Law, EU Law is Much More Powerful’
The Guardian, (October 9th
2013) < http://www.theguardian.com/law/2013/oct/09/human-rights-eu-law-
powerful > Accessed 10 February 2014.
253
The Charter, Art 51(1).
254
Case C-617/10 Aklagaren v Fransson [2013] ECR I, [2013] 2 CMLR 46, para 20. See also Explanations to
Article 51; Bokel B V, ‘New Wine into Old Wineskins: The Scope of the Charter of Fundamental Rights of the
EU after Akerberg Fransson’ [2013] 38 (6) ELR 866-883.
255
R (on the application of Zagorski) v Secretary of State for Business, Innovation and Skills [2010] EWHC
3110 (QB), [2011] HRLR 6, para 66-77; See also Case C-260/89, ERT v DEP [1991] ECR I-2925, [1994] 4
CMLR 540 paras 42-43.
256
NS (n 217).
257
A Rosas, ‘When is the EU Charter of Fundamental Rights Applicable at National Level?’ [2012] 19(4)
Jurisprudence Research Journal 1269.
258
Lord Dyson, ‘What is wrong with Human rights’ (Hertfordshire University Lecture 3rd November 2011) <
http://supremecourt.uk/news/speeches.html > Accessed December 2012; Lord Hoffman, ‘The Universality of
Human Rights’ (2009) 125 LQR 416; M Elliot, ‘Theresa May and Chris Grayling on human rights’ (Public Law
for Everyone, 30 September 2013) < http://publiclawforeveryone.wordpress.com/2013/09/30/theresa-may-and-
chris-grayling-on-human-rights/ > Accessed 10 October 2013.
259
Lord Dyson, ‘What is wrong with Human rights’ (Hertfordshire University Lecture 3rd November 2011) <
http://supremecourt.uk/news/speeches.html > Accessed December 2012.

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not just Strasbourg, is because the two cannot or should not be separated; they come bound
together. Although the UK’s actions of ratifying the ECHR in 1950, but only allowing petition
to Strasbourg in 1965 suggests otherwise, Protocol 11 of the ECHR260
(signed by the UK in
1994) indicates that undertaking of the jurisdiction of the court is an ‘integral’ part of the
ECHR.261
Withdrawal from Strasbourg would ultimately entail withdrawal from the ECHR.
Article 58 ECHR262
allows the UK to legally, upon six months’ notice, withdraw from the
Convention. Denunciation of the Convention would almost certainly mean repealing the HRA.
This is due to the fact that the HRA is merely a domestic vehicle for ‘Convention rights’263
and
their interpretations. Ultimately any legal bite that it possesses is via its connection with the
Convention.
However many claim that the reason why withdrawal from the Convention is seen as
impossible, is because it would legally require withdrawal from the Council of Europe (CoE)
and the European Union (EU)264
and would likely result in vast political consequences.
4.2.1. Withdrawal from the Council of Europe?
Searching the Statute of the Council of Europe265
there appears to be no provision which would
force the UK to leave the CoE if it embarked upon withdrawing from the Convention. The
Councils core mission is to promote human rights, democracy and the rule of law across
Europe. Unless however, pursuant to the combined effect of Article 3 and 8 of the Statute, 266
withdrawal from the ECHR by the UK is seen as ‘seriously violating’ the ensuring of
‘enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’,267
it is unlikely that withdrawal from the CoE would be forced via Article 7.268
Given that any
260
Protocol no.11 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
261
Pinto-Duschinsky M, Bringing Rights Back Home: Making human rights compatible with Parliamentary
Democracy in the UK (London: Policy Exchange, 2011) < www.policyexchange.org.uk > Accessed September
20 2013, 50.
262
ECHR, Art 58.
263
HRA, s 1.
264
N Kang-Riou, Confronting the Human Rights Act 1998: Contemporary Themes and Perspectives (Routledge
2012) 114.
265
The Statute of the Council of Europe 1949 (SCOE).
266
ibid Art 8 ‘Any member of the Council of Europe which has seriously violated Article 3 may be suspended
from its rights of representation and requested….to withdraw’.
267
ibid Art 3.
268
ibid Art 7; See also Pinto-Duschinsky (n 259) 52.

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advocated BoR would most definitely mirror the rights contained in the Convention,269
it is
doubted whether withdrawal would constitute such a breach of Article 3.
On the other hand, it is seen that ratification of the ECHR is a prerequisite to joining the CoE;
currently all 48 member states are party to it. Rabinder Singh QC contends that this prerequisite
implies an obligation on existing states (UK) to do the same.270
This could also be implied from
Jagland’s (Secretary General of the CoE) dismissal of any British renegotiation which would
exclude the right of petition to Strasbourg.271
Recent Parliamentary debate also suggests that
leaving the Convention would result in leaving the CoE.272
Having said this, the Statutes provisions do show that withdrawal would not legally be an issue.
4.2.2. Withdrawal from the EU?
Professor Klug, among others, reiterates a common consensus that you ‘have to ratify the
European Convention on Human Rights to be a member of the EU’.273
Therefore it is claimed
that withdrawal from the ECHR would in theory entail withdrawal from the EU. However, as
Pinto-Duschinsky states, the majority who make such a claim are those who are reluctant to
even consider reform.274
Legal analysis of the EU Treaties is needed if such claims are to be
taken as valid.
The most relevant treaty provision is Article 2 of the Treaty on the European Union [as
amended by the Lisbon Treaty]275
which states that the Union is founded upon ‘values of
respect for human dignity, freedom, democracy, equality, the rule of law and respect for human
rights, including the rights of persons belonging to minorities’.276
Any new applicant state
269
Commission on a Bill of Rights, A UK Bill of Rights: The Choice before us 18 December 2012 Vol. 1 <
http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013, paras 12.10 -12.21.
270
Pinto-Duschinsky (n 259).
271
A Travis ‘Defying Strasbourg ruling on prisoner voting rights risks anarchy, MPs told’ The Guardian (6
November 2013) < http://www.theguardian.com/law/2013/nov/06/defying-strasbourg-ruling-prisoner-voting-
anarchy.> Accessed 10 November 2013.
272
V Miller, ‘Is Adherence to the European Convention on Human Rights a Condition of European Union
Membership?’ (House of Commons, International Affairs and Defence Section. 11 march 2013, SN/IA/6577) <
www.parliament.uk > Accessed 28 December 2013.
273
Select Committee on Constitutional Affairs Minutes of Evidence (31 October 2006) <
http://www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/1703/6103102.htm > Accessed 20
March 2014, (Francesca klug) Q.19.
274
Pinto-Duschinsky (n 259) 54.
275
TEU, Art 2.
276
ibid Art 2 ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality,
the rule of law and respect for human rights, including the rights of persons belonging to minorities. These

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wishing to become a member of the EU, per Art.49 (1), must respect ‘the values referred to in
Article 2 and’ be committed ‘to promoting them.’277
The clearest way to achieve this is to ratify
the ECHR, and indeed the European Commission has itself stated that, ‘Any State wishing to
join the European Union must first have ratified the (ECHR)’.278
However the TEU makes no express mention of such an obligation on existing members or
continued adherence to the ECHR. It could be argued that new members ratify on the
assumption of existing members also being a party, but this would be to read into the Treaty
that which is not there; as Rosalind English states ‘if they had meant to say that, they would
have said it’.279
A possible explanation for the obligation on new members, such as Romania
and Bulgaria is that unlike early members of the EU, they are unlikely to have a tradition of
the rule of law embedded within their constitutions, nor the sufficient human rights record to
satisfy Article 2.280
Bill Cash (European Scrutiny Committee) in 2013 stated that leaving the Convention would
not breach the EU treaties.281
Per Article 7 TEU, finding a ‘serious breach’ of the values in
Article 2 by the UK, would need a vote of a majority of four fifths of the members of the EU
Council, and a unanimous vote by the other EU Member States.282
If, as it would be assumed,
a British BoR containing those ‘fundamental rights’283
with the Supreme Court as its
authority284
replaced the ECHR and Strasbourg, it is unlikely that withdrawal would constitute
such a breach of Article 7.285
If the BoR provided standards as high as those found in the ECHR,
then the wording of Article 6(3) TEU does not seem to require actual adherence to the ECHR.
This assessment of the treaties evidences that withdrawal is unlikely to result in leaving the
EU.
values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice,
solidarity and equality between women and men prevail’.
277
TEU Art 49 (1).
278
European Commission, ‘Opinion on Bulgaria’s Application for Membership of the European Union’
(Opinion) Com (97) 2008 final, 15, 1.2.
279
Rosalind English, ‘It’s time we packed our bags at Strasbourg, says report’ (UK Human Rights Blog 9th
February 2011) < http://ukhumanrightsblog.com/2011/02/09/its-time-we-packed-our-bags-at-strasbourg-says-
report/ > Accessed 15 March 2014.
280
TEU, Art 2.
281
Miller (271).
282
TEU Art7 (1).
283
The Commission’s Report (n 201).
284
C Hope ‘Britain's Supreme Court will be able to over-rule Strasbourg court, says Chris Grayling’ The
Telegraph, (30 December 2013) < http://www.telegraph.co.uk/news/uknews/law-and-order/10542296/Britains-
supreme-court-will-be-able-to-over-rule-Strasbourg-court-says-Chris-Grayling.html > Accessed 30 December
2013.
285
Jonathan Fisher QC, Rescuing Human Rights (The Henry Jackson Society 2012) 54.

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4.2.3. The EU’s accession to the ECHR
The Lisbon Treaty’s creation of a new legal framework could however create a further
insurmountable obstacle for an escapist UK in the BoR context. The Treaty in 2009, by virtue
of giving the EU legal personality286
and through its amendment of s.6(2), obliges the EU to
accede to the ECHR.287
With accession inevitable, a final draft accession agreement288
was
concluded in April 2013, with negotiations currently ongoing.
This significant change will introduce judicial supervision by Strasbourg over any ‘acts,
measures or omissions’289
taken by EU institutions and by its Member States when applying
EU law. Although this change predominantly concerns the EU as a separate legal entity, with
the likely eradication of the ‘Bosphorous presumption’290
(that all EU acts are in conformity
with the ECHR291
) there are various ways that accession will further affect Member States
including the UK.
The CJEU (as an EU institution) in giving its judgement to national courts on rights based
claims via Article 267,292
will be bound or susceptible to review by the ECtHR in regards to its
interpretation of Convention rights (via the Charter); a concept previously expressed by the
CJEU.293
It is stressed that accession will not affect the autonomy of the CJEU, 294
but the
binding effect of the Convention system295
will mean a surrender of some of its autonomy. To
286
TEU Art 47.
287
TEU Art 6(2), ‘The Union shall accede to the European Convention for the Protection of Human Rights and
Fundamental Freedoms’.
288
Draft Revised Agreement on the Accession of the European Union to the Convention for the Protection of
Human Rights and Fundamental Freedoms, in Council of Europe ‘Fifth Negotiation Meeting Between the
CDDH Ad Hoc Negotiation Group and the European Commission on the Accession of the European Union to
the European Convention of Human Rights' (Strasbourg 10 June 2013) < www.coe.int > Accessed 2 January
2014.
289
ibid, Preamble to Draft Revised Agreement on the Accession of the European Union to the Convention for the
Protection of Human Rights and Fundamental Freedoms.
290
Bosphorus Hava Yollari Turizm v. Ireland App No 45036/ 98 (ECHR 2005), (2006) 42 EHRR 1, para 155 -
156.
291
T Lock, ‘Beyond Bosphorus: The European Court of Human Rights' Case Law on the Responsibility of
Member States of International Organisations under the European Convention of Human Rights’, (2010) 10
Human Rights Law Review 798.
292
Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C 326 (TFEU), Art
267.
293
Opinion 1/91 [1991] ECR 1-6079, para 39.
294
T Lock, ‘Walking on a Tightrope, the Draft ECHR Accession Agreement and Autonomy of the EU Legal
Order’ [2011] 48(4) CLMR 1025-1054.
295
TFEU Art 216(2).

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depart from a Strasbourg interpretation would possibly result in a finding of non-compliance.296
A Member State would thus be indirectly effected by the ECHR and its court, due to the
accession. The effect of this CJEU/ECHR relationship shows its true force however regarding
the application of the Charter.297
Additionally if an EU directive is found in violation of the
ECHR, because Member States would have effectively implemented this domestically,298
they
too, would be in violation of the ECHR.
The more drastic consequence could however spawn from the accession procedure itself. As
noted, the accession of the EU to the ECHR is an obligation on the Union as a whole.299
The
accession as a mixed international agreement will, per Article 218(8) TFEU,300
require
ratification by all Member States in order to enter into force (Mixity). 301
Mixity, alongside the
so called ‘duty of loyalty’ provision, Article 4(3),302
would mean that the UK will likely be left
with no choice but to ratify the agreement which would become legally binding on the UK.303
Indeed, it is asserted that the combination of mixity and Article 4(3) can severely restrict the
manoeuvrability of Member States on the international plane.304
Furthermore it could be
implied that Art.4 of the UK’s Accession Treaty305
contains a continuing obligation to ratify
EU treaties and agreements.
The implications of this however are illuminated by Eckes:
In light of the fact that all Contracting Parties to the ECHR also have to ratify an
accession Treaty306
and that all EU Member States are Contracting Parties to the
296
C. Eckes, ‘One Step Closer: EU Accession to the ECHR’ (Const. L. Blog 2nd May 2013) <
http://ukconstitutionallaw.org/2013/05/02/christina-eckes-one-step-closer-eu-accession-to-the-echr/ > Accessed
2 January 2014.
297
See Chapter 4.1 The Charter of Fundamental Rights.
298
TFEU, Art 288.
299
TEU, Art 6 (2).
300
TFEU, Art 218(8) ‘The decision concluding this agreement shall enter into force after it has been approved
by the member states’.
301
C Hillion & P Koutrakos, Mixed Agreements Revisited: The EU and its Member States in the World (Hart
Publishing 2010).
302
TEU, Art 4(3) ‘The Member States shall take any appropriate measure, general or particular, to ensure
fulfilment of the obligations arising out of the Treaties’.
303
TFEU Art 216 (2).
304
E. Neframi, ‘The Duty of Loyalty: Rethinking its Scope through its Application in the Field of EU External
Relations’ (2010) 47 CMLRev 323.
305
Treaty of Accession of Denmark, Ireland and the United Kingdom (1972) OJ L 73.
306
ECHR, Art 59.

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ECHR… it could be argued that being party to the ECHR has de facto become an
accession requirement.307
To clarify, this would likely mean that the UK would have to be a party to the ECHR in order
to fulfil its obligation to ratify the accession agreement. This leaves the chance of withdrawal
from the Convention in significant doubt. It has been claimed in European Parliamentary
debate that the UK could not opt out of the Convention because accession was mandated by
the Lisbon Treaty.308
Such a result could have possibly been a motivation behind the fact that
the UK apparently ‘at every stage, dragged out and tried to delay recommendations on the
accession’.309
Such a requirement would clearly make sense. The main objective of the EU’s
accession is to ensure a uniform standard protection of fundamental rights Europe-wide.310
Were the EU to be a party to the Convention, but the UK not, this would have the effect of
creating different tiers of protection within the EU, going against the uniformity objective.
4.3.1 A Political Disaster?
The political reasons behind the claims of ‘impossibility’ is that it would be, as Spielman J
states, a ‘political disaster’.311
The most obvious reason for this is that the UK is seen as the ‘best pupil in its class, the leading
nation on human rights’.312
If withdrawal from the Convention occurred then it is contended
that this would send an alarming signal across Europe that the UK had lost confidence in
Strasbourg.313
There are worries that this would negatively impact on more prominent human
rights offenders such as Russia, Turkey and Georgia, resulting in a disobedience contagion.314
307
Christina Eckes, ‘The EU Accession to the ECHR: Between Autonomy and Adaptation’ [2013] 76(2) MLR
254.
308
European Parliament, ‘EU accession to the European Convention on Human Rights (debate)’ (19 April 2012
– Strasbourg) < http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20120419+ITEM-
010+DOC+XML+V0//EN > Accessed 20 January 2014, see Gerrard Batten.
309
N Nielsen ‘UK Obstructing EU Accession to Human Rights Convention’ EUobserver (19 April 2012) <
http://euobserver.com/justice/115954 > Accessed 20 January 2014.
310
A Kaczorowska, European Union Law (Routledge 3rd
edn 2012) 232.
311
BBC, ‘Spielmann: UK leaving ECHR would be a 'political disaster' BBC News (14 January 2014) <
http://www.bbc.co.uk/news/uk-politics-25729321 > Accessed 14 January 2014.
312
Travis (n 270).
313
A Wagner, ‘What would happen if the UK withdrew from the European Court of Human Rights?’ (UK
Human Rights Blog 3rd
March 2013) < http://ukhumanrightsblog.com/2013/03/03/what-would-happen-if-the-
uk-withdrew-from-the-european-court-of-human-rights/ > Accessed October 2013.
314
Alice Donald, Jane Gordon and Philip Leach ‘The UK and the European Court of Human Rights’ (EHRC
April 2012) < http://www.equalityhumanrights.com/news/2012/april/commission-publishes-research-into-
european-court-of-human-rights-judgments-relating-to-uk-governmen/ > Accessed March 2013.

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It is argued that states such as Russia, who are subject to Strasbourg’s jurisdiction substantially
more than the UK,315
only tolerate this because other member states do.316
These worries are
borne from responses like that of the Ukrainian Government, whose hostility towards
Strasbourg seemed to be influenced by the UK’s attitude, stating ‘Ukraine is not the only
country having difficulty in implementing European Court judgments: Great Britain would
very much like to leave the European Convention on Human Rights.’317
How much weight does this argument deserve though? Is the integrity and safety of the UK a
more predominant consideration than setting a good example for others,318
especially when as
Fisher QC insightfully states, that it is a political reality that withdrawal by the UK does not sit
particularly high on the agenda or worries of the aforementioned countries.319
Some believe
that the UK would become a ‘Pariah state’320
and lose its credibility when promoting human
rights. Comparisons are made with the dictatorships of Belarus321
and the Greek Junta of the
1960’s; both not a party to the ECHR and both seen as outcasts. A more relevant comparison
may be Venezuela who recently denounced the Pact of San José.322
They have been subject to
scathing criticisms regarding this move and the numerous human rights breaches that have
occurred within the country.323
Although to compare the democratically elected government of
the UK whose foreign policy is strongly committed to promoting international human rights to
those countries, could be argued as offensive,324
it does provide example of the possible
consequences were the UK to embark down such a path.
315
Council of Europe, ECHR Statistics < http://echr.coe.int/Pages/home.aspx?p=reports > – Russia, 134
judgments, 122 violations. UK 24 judgments, 10 violations.
316
Pinto-Duschinsky (n 259).
317
Crown Office Row, ‘Hostility to the European Court and the Risks of Contagion – Philip Leach and Alice
Donald’ (UK Human Rights Blog 21 November 2013) < http://ukhumanrightsblog.com/2013/11/21/hostility-to-
the-european-court-and-the-risks-of-contagion-philip-leach-and-alice-donald/ > Accessed 18 December 2013.
318
Pinto-Duschinsky (n 259).
319
Lord Faulks QC & J Fisher QC, ‘Unfinished Business’ (n 201) 190.
320
H Watt, ‘Britain Could Become Belarus if it Abandons Human Rights Legislation, Warns Attorney General’
The Telegraph (9 October 2012) < http://www.telegraph.co.uk/news/politics/9596949/Britain-could-become-
Belarus-if-it-abandons-human-rights-legislation-warns-Attorney-General.html > Accessed 18 January 2014.
321
ibid.
322
American Convention on Human Rights 1978.
323
Human Rights Watch, World Report 2014: Venezuela < http://www.hrw.org/world-report/2014/country-
chapters/venezuela?page=3 > Accessed 15 March 2014.
324
Geeri Peev, ‘Britain 'Risks Being like Greece under the Junta!' Fury at Euro Judge's Warning over UK
Quitting Human Rights Court’ The Mail Online (18 February 2011) < http://www.dailymail.co.uk/news/article-
1357928/Head-human-rights-court-says-Britains-decision-prisoners-vote-disaster.html > Accessed 19 February
2014.

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4.3.2 The Article 58 Consequence
It is also possible that withdrawal from the Convention would leave a bitter taste for longer
than some would hope. Article 58 (2) makes it clear that denunciation of the Convention will
not release the High Contracting Party concerned:
[F]rom its obligations under this Convention in respect of any act which, being capable
of constituting a violation of such obligations, may have been performed by it before
the date at which the denunciation became effective. 325
The UK would then be bound by the Convention and Strasbourg’s judgements over any
violating act which occurred up to the end of the 6 month period of notification. Currently
Strasbourg has a backlog of cases of over one hundred thousand;326
UK pending cases account
for around three percent of that figure.327
The court seeks to conclude cases within three years
(although some can last up to 7 years) depending on certain factors such as case complexity
and parties. Based purely on these facts alone, if withdrawal was successful, Strasbourg’s
influence in the short term would still loom over the UK for a considerable amount of
subsequent years, creating case complexities and costs.
4.4 The Common Law Lives On
Ignorance towards the significant effect of the common law however highlights the real
naivety of those that assume that the repeal and withdraw option gaining momentum would
rid the UK of unwanted European influences. Fundamental rights are by no means a new
invention and have been embedded within the common law for decades.328
As was firmly
asserted in R (Daly), ‘Some rights are inherent and fundamental to democratic civilised
325
ECHR Art 58 (2).
326
Council of Europe, ECHR Statistics < http://echr.coe.int/Pages/home.aspx?p=reports > Accessed 5 January
2014, General statistics as of 30/11/2013.
327
ibid, see pending cases as of 31/11/2013.
328
Kennedy v The Charity Commission [2014] UKSC 20, Lord Toulson.

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society. Conventions… and the like respond by recognising rather than creating them.’329
Such rights are often labelled as common law constitutional rights (CLCR).
The introduction of the HRA acted as a further catalyst for such recognition and has
ultimately ‘led judges to discover what was already implicit in the common law while
simultaneously augmenting it.’330
Evidence of such evolution being the common law
absorption of the right to privacy (Article 8) shown in cases such as Douglas331
and Campbell
v MGN.332
It follows that Convention rights should not be seen as separate exotic rights, but
rather rights that are in fact now implanted within the domestic legal system through the
common law; the ‘HRA having fostered an awareness of rights…. that repeal is unlikely to
mollify.’333
CLCR’s are to an extent vulnerable to express incompatible law by parliament334
and there
has at times been a rejection of their use.335
However, a series of recent UK Supreme Court
decisions have sounded out a clear signal that Parliament’s capacity to manipulate future
rights would be greatly limited by the common law if withdrawal eventuated. A significant
new found importance has been placed on the status of common law rights in cases such as
Osborn336
, Kennedy337
and A v BBC338
. In these cases Judges have appeared to put the
common law centre stage,339
referring to an over reliance by appellants on ECHR rights
rather than focusing on their common law counterparts as the starting point.340
As stated in
Kennedy, not only can the common law provide equal and adequate protection but ‘in some
areas… may could go further’,341
thus providing a strong source for fundamental rights. In
329
R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [81] – [82] Lord Reed.
330
M Elliot, ‘Repealing the Human Rights Act, withdrawing from the ECHR: be careful what you wish for’
(Public Law for Everyone March 4 2013) < http://publiclawforeveryone.com/2013/03/04/repealing-the-human-
rights-act-withdrawing-from-the-echr-be-careful-what-you-wish-for/ > Accessed November 2013.
331
Douglas v Hello! Ltd [2005] EWCA Civ 595.
332
Campbell v MGN [2005] UKHL 61, [2005] 4 All ER 793.
333
Scott Stephenson, ‘The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back
the Clock?’ (UK Const. L. Blog) < http://ukconstitutionallaw.org/2013/03/07/scott-stephenson-the-
constitutional-significance-of-statutory-repeal-how-far-can-parliament-turn-back-the-clock/ > Accessed 8
February 2014.
334
See Al-Rawi and others v The Security Service and others [2011] UKSC 34, [2011] 1 AC 531.
335
Watkins v Home Secretary [2006] UKHL 17.
336
Osborn v Parole Board [2013] UKSC 61.
337
Kennedy v The Charity Commission [2014] UKSC 20.
338
A v BBC [2014] UKSC 25; See also R (Guardian News and Media Ltd) v City of Westminster Magistrates’
Court [2012] EWCA Civ 420; [2013] QB, R (HS2 Action Alliance Ltd) v Secretary of State for Transport
[2014] UKSC 3.
339
M Elliot, ‘The “vigour” of common law rights and values: A v BBC [2014] UKSC 25’ (Public Law for
Everyone May 9 2014) < http://publiclawforeveryone.com/2014/05/09/the-vigour-of-common-law-rights-and-
values-a-v-bbc-2014-uksc-25/ > Accessed July 2014.
340
Osborn v Parole Board [2013] UKSC 61- find.
341
Kennedy v The Charity Commission [2014] UKSC 20, [46] LJ Mance.

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that case, the common law principle of open justice as opposed to Article 10.342
This is not to
say that the Convention should be ignored, but the judges will use it more as a yardstick for
the CL to be measured against.343
What can then be taken from this is a dagger to the assumption that an ECHR - HRA less UK
would have a blank canvas from which to start a fresh; the common-law constitutional
landscape left behind would, upon recent SC evidence, produce protection and judgements
remarkably similar to that which parliament have fled from during the ECHR - HRA era. The
common law and its accelerated development would remain and in ‘vigorous health’.344
4.5. Final thoughts
This chapter has looked to shed light on important constitutional questions involving the
possibility of a UK BoR free from the Convention system. Analysis has shown that the claim,
that membership of the COE and the EU requires adherence to the Convention, has been greatly
exaggerated. It is more a matter of perception and politicisation of legal possibility than actual
reality. Yet, the statement that withdrawal is a clear policy option open to the UK345
is
questionable when attention is given to the consequences of the Lisbon Treaty’s introduction
of a new legal framework.
It would seem that the UK, depending on their obligations under EU law to ratify legislation,
would be bound to remain a party to the Convention by virtue of the EU's accession to the
Convention. Even if withdrawal did materialise, the practical reasons for doing so could
become pointless or at least greatly limited as the Convention and the Strasbourg court, via its
interlinking relationship with the Charter, are reintroduced into the UK, but with added
authority by virtue of being EU law. While the Convention regime would still be present for a
number of subsequent years, applying to existing Strasbourg cases,346
it is it is the effect of the
common law that provides a striking reminder that parliament cannot take back with one hand,
what they have once given with the other. Although it is still unclear, it is argued that
subsequent political consequences would also make withdrawal an unfruitful task. There are
342
ECHR.
343
M Elliot (n 339).
344
R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013]
QB 618 [88] (LJ Toulson).
345
See Lord Hoffman, ‘The Universality of Human Rights’ (2009) 125 LQR 416.
346
ECHR, Art 58.

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current calls for a definitive clarification of the Lisbon treaty’s effects on the UK,347
however
it is unlikely that the position will differ from what is already stated.
It is contended then that the UK, to the disappointment of many, is unlikely to ever completely
escape the grasp of the Convention system, placing the likelihood of a future UK BoR
decoupled from the ECHR as minimal.
347
Ministry of Justice, ‘Review of the Balance of Competences: MOJ’ < https://www.gov.uk/review-of-the-
balance-of-competences > Accessed January 2014.

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CHAPTER 5
Devolution and the ‘Ownership’ Issue
Within the last 16 years the domestic constitutional landscape of the UK has seen a radical
transformation from a unitary to a quasi – federal state.348
A continuance of power delegation
to the devolved regions of Northern Island349
(NI), Scotland350
and Wales351
has meant that the
autonomy of the devolved has greatly increased while Westminster’s legislative power has
subsequently decreased.
Yet within the BoR context the significance of this ‘devolution dimension’ has been given
insufficient thought.352
As stated, the Commission’s strongest argument was that a British
rebranded UK BoR which still incorporated the ECHR, could tackle the lack of ‘ownership’
and satisfaction of the HRA. Indeed, as shown, such a model coupled with already stated
features353
could provide a workable solution. However, would such a BoR really gain the
necessary ‘ownership’ in what now, more than ever, is an increasingly dis-United Kingdom?354
Framed thus, does devolution seek to undermine the BoR ‘ownership’ objective and as a
consequence could it undermine the possibility of such a document being enacted?
5.1 Disorder of the Legal Orders
What up to now seems to have been underestimated, is the differing views and attitudes towards
human rights within this pluri-national UK. The BoR Commission reported that there was little,
348
V Bogdanor, The New British Constitution (Hart Publishing 2009).
349
Northern Island Act 1998 [NIA 1998].
350
Scotland Act 1998 [SA]; Scotland Act 2012.
351
Government of Wales Act 1998; Government of Wales Act 2006 [GWA].
352
C Bell, ‘Christine Bell: Bills of Rights and Devolution: From the Universal to the Particular’ (UK Const. L.
Blog, November 15th 2011) < http://ukconstitutionallaw.org > Accessed 2 February 2014; P Sands & H
Kennedy, ‘In Defence of Rights’ in Commission on a Bill of Rights, ‘A UK Bill of Rights: The Choice before
us’ 18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013.
353
Chapter 3 Final Thoughts.
354
Harvey C, ‘Colin Harvey: Engaging with Human Rights in a Disunited Kingdom’ (UK Const. L. Blog 13
March 2012) < http://ukconstitutionallaw.org/2012/03/13/colin-harvey-engaging-with-human-rights-in-a-
disunited-kingdom/ > Accessed 2 February 2014; Sumption J, ‘The Disunited Kingdom: England, Ireland and
Scotland’ (Denning Society Lecture 2013) < http://supremecourt.uk/news/speeches.html > Accessed 15
February 2014.

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if any, criticisms of the current UK human rights system within the devolved regions.355
Rather
the devolved, especially Scotland, strongly support the HRA and Convention system. Scotland
have stated that they see the HRA and ECHR as foundations from which to build upon,356
not
diminish. Such an attitude is mirrored in NI and Wales.357
It could be argued that the called for
changes are then particularly English;358
a view quite clearly expressed by Wales in the BoR
investigations.359
An explanation for this support could be that the HRA and ECHR are more deeply embedded
within the constitutional fabric of the devolved. Unlike Westminster, the devolved institutions
cannot legislate incompatibly with ‘Convention rights’,360
nor can they modify the HRA.361
The
HRA’s rights362
and sections (s 2, 3 and 7) are further tied into the devolution statutes via
provisions363
or case law364
and ultimately the Act was clearly an important pillar of the new
constitutional framework of devolution in 1998.
The introduction of a UK BoR would entail repealing and replacing the HRA, altering the way
Convention rights are domestically incorporated. Here lies the initial problem. How can a BoR
instrument be trusted and seen as the UK’s own, let alone seen as symbolic,365
when it is so
unwelcomed and its predecessor so strongly supported by the devolved? Such ownership is
unlikely. But this is not the only problem however.
Although a UK BoR would have ‘at its core the rights currently in the ECHR’,366
it is doubted
whether the rights-based content of a UK BoR instrument would be able to cater for the varying
wants of the entire UK. This is demonstrated by the fact that the Magna Carta and the right to
355
Commission on a Bill of Rights, A UK Bill of Rights: The Choice before us 18 December 2012 Vol. 1 <
http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013, 163.
356
Joint Committee on Human Rights, A Bill of Rights for the UK? (HL 165-II/HC 150-II, July 2008) 59, 60.
See A Miller, ‘To Scots, Repealing the Human Rights Act is a Backward Step’ The Guardian (14 December
2011) < http://www.theguardian.com/law/2011/dec/14/scotland-repeal-human-rights-backward-step > Accessed
14 March 2014.
357
A Hirsch, ‘Hating the Human Rights Act - An English Phenomenon’ The Guardian (8 February 2010) <
http://www.theguardian.com/commentisfree/henryporter/2010/feb/08/human-rights-act-devolution-constitution-
labour-conservatives > Accessed January 24 2014.
358
The Commission’s Report (n 355) 163, para 9.3.
359
ibid 167, para 9.21.
360
SA s 29 (2)(d) and s 57 (2); NIA s 6 (2)(c) and s 24 (1)(a); GWA 2006 s 81 (1) and s 94 (6) (c).
361
SA, s 29 and Schedule 4; NIA S. 6 (2f) and 7(1).
362
HRA, s 1; See, s 126, SA; s 98 NIA; s 158 GWA 2006.
363
NIA s 83; SA s 101; GWA 2006 s 154.
364
Anderson v Scottish Ministers [2001] UKPC D5, [2003] 2 AC 602 [8]; Clancy v Caird [2000] SLT 546 [3]
(Lord Sutherland).
365
See Chapter 2.4 More than just a Legal document.
366
The Commission’s Report (n 355) 177, para 12.11

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trial by jury, both seen as historic British constitutional institutions,367
do not gather such strong
respect in the devolved (especially Scotland) as they do in England.368
Thus, their often called
for inclusion within a BoR369
would be problematic. It cannot be forgotten that there are
differing legal traditions in England, NI, Scotland and Wales and therefore obvious divides
regarding human rights in the UK. In fact, as Speaight asserts, the devolved regions have and
are, incrementally developing their own unique separate rights based agenda’s.370
Scotland has recently launched a ‘UK first’ human rights action plan371
establishing its
commitment to internationally agreed human rights via the UN treaty system, and the report
on their potential independence evidences their intent to further socio –economic rights372
(as
have NI373
) such as the right to health care; something the UK has always been particularly ill-
disposed to due to the complexities in resolving social or economic problems.374
NI provides the strongest example as they edge closer by virtue of the Belfast Agreement
(BA)375
to their own BoR. The nature of devolution in NI is slightly different. The NIA was
primarily enacted as a consequence of the BA;376
a multi-dimensional international Treaty
which acted as a peace agreement between nationalist and unionist divisions in NI and a
367
Pinto-Duschinsky M, Bringing Rights Back Home: Making human rights compatible with Parliamentary
Democracy in the UK (London: Policy Exchange, 2011) < www.policyexchange.org.uk > Accessed September
20 2013, 60.
368
JUSTICE, Devolution and Human Rights (8 February 2010 Report) <
http://www.justice.org.uk/resources.php/30/devolution-and-human-rights > Accessed 11 January 2013.
369
See Helen Fenwick, ‘Conservative Anti-Rhetoric, the Bill of Rights ‘Solution’ and the Role of The Bill of
Rights Commission’, in R Masterman & I Leigh (eds), The United Kingdom's Statutory Bill of Rights:
Constitutional and Comparative Perspectives (OUP/British Academy 2013) 328.
370
Anthony Speaight QC, ‘Devolution Options’ in Commission on a Bill of Rights, ‘A UK Bill of Rights: The
Choice before us’ 18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013.
371
BBC News, ‘Scotland in ‘UK first’ Human Rights Action plan’ BBC (10 December 2013) <
http://www.bbc.co.uk/news/uk-scotland-scotland-politics-25319265 > Accessed 22 January 2014.
372
Scottish Constitutional Futures, ‘Human Rights and Scotland’s Constitutional Future (SCFF Blog 6 June
2013)
<http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/Articl
eView/articleId/1698/Human-Rights-and-Scotlands-Constitutional-Future.aspx > Accessed 15 February 2014.
373
D Grieve, ‘Can the Bill of Rights do Better than the Human Rights Act?’ (Middle Temple Lecture, 30th
November 2009) < http://www.dominicgrieve.org.uk/news/can-bill-rights-do-better-human-rights-act >
Accessed 10 March 2014, ‘In Northern Ireland, a Bill of Rights is under consideration, although the report of its
Commission has proved controversial in its advocacy of socio-economic rights which are definitely not under
consideration for a Conservative UK Bill of Rights.’
374
The Commission’s Report (n 355) 152, 8.28; See also Chapter 4.1 The Charter on Fundamental Rights and
Freedoms; V Bogdanor, Human Rights and The New British Constitution, (JUSTICE Tom Sargant Memorial
Annual Lecture 2009) < www.justice.org.uk > Accessed September 15 2013. See as an example R v
Cambridgeshire Health Authority, ex parte B [1995] 1 WLR 898 (Bingham L) ‘Difficult and agonizing
judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the
maximum number of patients. This is not a judgment which the court can make.’
375
The Belfast agreement 1998 (BA), formally entered into force on the 2 December 1999; also known as the
Good Friday Agreement (GFA).
376
BA, Preamble.

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foundation from which to establish a devolved government.377
A duty was established on the
NI Human Rights Commission to create a BoR for NI which, once formalised, would comprise
of the ECHR and additional supplementary rights ‘to reflect the particular circumstances of
NI’;378
a duty incorporated in the NIA.379
Although the lengthy NI BoR forum, launched by the
St Andrews Agreement,380
has in recent years stalled,381
work on its implementation
continues.382
In Wales it has been highlighted that there is an emerging Welsh equalities agenda which is
more suited to the everyday needs of Wales.383
In particular there has been a focus on extending
the protection of children’s discrimination rights via the UNCRC.384
As Wales’s legislative
primary power increases,385
it is likely that further inroads will be made into this area.
The differing stances on human rights within the UK evidences the difficulty of a UK BoR
being owned by all. Quebec provides a useful example when it formally rejected the proposed
Canadian constitution in 1980, stating that it would be deprived of autonomy in relation to
French language and education rights.386
377
Austen Morgan, The Belfast Agreement: A Practical Legal Analysis (TSO 2000).
378
BA, Rights, Safeguards and Equality of Opportunity, para.4 ‘The new Northern Ireland Human Rights
Commission will be invited to consult and to advise on the scope for defining, in Westminster legislation, rights
supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of
Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to
reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and
– taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland’.
379
NIA 1998 s 69 (7).
380
St Andrew’s Agreement 2006.
381
Colin Harvey, ‘Where Now For the Northern Island Bill of Rights Process?’ (UK Const. L. Blog, 28 July
2011) < http://ukconstitutionallaw.org/2011/07/28/colin-harvey-where-now-for-the-northern-ireland-bill-of-
rights-process/ > Accessed 2 February 2014.
382
Amnesty International UK, Northern Ireland Bill of Rights (Amnesty 30 October 2013) <
http://www.amnesty.org.uk/northern-ireland-bill-rights#.Ux-979GPPX4 > Accessed 12 March 2013.
383
Paul Chaney, Equal Opportunities and Human Rights: The First Decade of Devolution in Wales (EHRC
2009) < http://www.equalityhumanrights.com/wales/library/equal-opportunities-and-human-rights-the-first-
decade-of-devolution-in-wales/ > Accessed 12 March 2014.
384
United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2
September 1990) 1577 UNTS 3 (UNCRC); The ‘Rights of Children and Young Persons (Wales) Measure’
2011.
385
Welsh Referendum 2011 (Welsh Government March 2011) <
http://wales.gov.uk/legislation/referendumpowers/?lang=en > Accessed 12 March 2014. See recently Steven
Morris, ‘Give Wales Power over Police and Justice – Devolution Report’ The Guardian (3rd
March 2014) <
http://www.theguardian.com/uk-news/2014/mar/03/wales-devolution-report-policing-justice > Accessed 12
March 2014; See Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers
to Strengthen Wales (3rd
March 2014) < http://commissionondevolutioninwales.independent.gov.uk/search/doc-
type/papers/ > Accessed 12 March 2014.
386
Geoffrey Marshall, `Canada’s New Constitution (1982): Some Lessons in Constitutional Engineering’, in
Vernon Bogdanor, Constitutions in Democratic Politics (Dartmouth Publishing 1988).

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There are those that believe this could be resolved by a UK BoR with an ‘irreducible core’ of
rights available throughout the UK then being augmented by additional devolved rights
applying solely within their respective jurisdictions.387
Speaight, in criticising the ‘theoretical
attraction of a single set of rights throughout a sovereign state’,388
argues that such a model is
present in many parts of the world. However as Bell states, some argue that differentiated
regional rights can be too locally driven389
and O’Cinneide asserts that ‘As a matter of
constitutional principle, an instrument to guarantee fundamental rights… should ideally apply
to the whole territory.’390
Even if such a model was desirable, this still disregards the fact that the devolved are strongly
against changing and replacing the HRA. Furthermore this is still incompatible with NI’s
situation. Any UK BoR, even one containing a separate NI chapter (as has been suggested),
would clearly contravene the Irish Parliament’s wishes.391
It is argued that it could even
potentially reignite tensions within the NI divide.392
More fundamentally it would put the UK
in direct breach of the BA and the governments’ obligation to ensure implementation of a
separate NI BoR.393
This problematic ‘ownership’ issue is heightened by the fact that notions of sub-state liberal
nationalism are alive and increasing394
within the pluri-national UK. One Scottish minister in
responding to the JCHR said ‘we consider ourselves Scottish and we consider those south of
the border to be English’,395
rather than British. Such a view is indicative of the current Scottish
independence agenda which places further emphasis on the lack of unity. Even the name ‘UK’
BoR could cause tension in regards to the nationalist and republican sections of NI.396
This places further doubt on whether a BoR could truly be ‘supported by the (British)
communities and peoples that it is designed to be used by’397
and thus owned, due to the
387
The Commission’s Report (n 355) 149, para 8.17.
388
Speaight QC (n 370).
389
Bell (n 352).
390
JUSTICE, Devolution and Human Rights (8 February 2010 Report) <
http://www.justice.org.uk/resources.php/30/devolution-and-human-rights > Accessed 11 January 2013.
391
See Parliamentary Debates (21 October 2009, vol 692, (3) Answer of the Taoiseach in response to a question
by Deputy Eamon Gilmore) < http://debates.oireachtas.ie/Xml/30/DAL20091021.PDF. >, p. 564.
392
JUSTICE (n 390) 164.
393
BA, Rights, Safeguards and Equality of Opportunity, para.4.
394
C Harvey, ‘Taking the Next Step? Achieving another Bill of Rights’ [2011] 11 (1) European Human Rights
Law Review 24.
395
Joint Committee on Human Rights, A Bill of Rights for the UK? (HL 165-II/HC 150-II, July 2008) 59, 60.
396
JUSTICE (n 390).
397
J Wadham ‘Why Incorporation of the European Convention on Human Rights is not enough’ in Gordon, R.
and Wilmot-Smith, R. (eds.) Human Rights in the United Kingdom (Oxford: Oxford University Press, 1996).

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divergent views within the UK. Due to the increasing autonomous nationalism of the devolved
regions, it is unlikely that it would spawn ‘a moment of national definition’,398
failing to satisfy
the identificatory function of a BoR.399
However from this spawns a further problem. Upon a closer look of the UK’s legal
constitutional framework, this lack of ‘ownership’, acceptance or even want of a UK BoR from
the devolved, could undermine the complete possibility of such an instrument even being
introduced.
5.2 Who has the power? The Devol-ution is in the detail of the statutes
In line with chapter one’s confirmation of the doctrine of parliamentary sovereignty,400
in
theory Westminster Parliament is free to legislate as it wishes,401
including the enactment of a
UK BoR. The devolution concept was always based on the delegation of power, without the
relinquishing of sovereignty.402
However as many have rightly stated,403
any alteration of UK human rights law which touched
upon devolved competencies would trigger the Sewel convention.404
This constitutional
convention states that for Westminster to legislate on devolved matters, consent from the
respective legislatures is required through what is known as a ‘Sewel motion’.
What is a devolved matter or not, is determined by the devolution statutes. ‘Excepted’405
or
‘reserved’406
matters such as immigration and national security to name a few, remain entirely
within the legislative competence of Westminster. The devolved have legislative competence,
398
Joint Committee on Human Rights (n 395) 28, para. 88.
399
See Chapter 2.3.2 More Than Just a Legal Document.
400
See chapter 1.1, Underlying principles of the constitution; See also confirmation in SA s 28 (7); NIA s 5 (6);
401
Dicey, A.V. An Introduction to the Study of the Law of the Constitution (10th edn, 1959).
402
Mark Elliot, ‘Parliamentary Sovereignty and the New Constitutional Order: Legislative Freedom, Political
Reality and Convention [2002] 22(3) Legal Studies 340.
403
R Masterman & I Leigh (eds), The United Kingdom's Statutory Bill of Rights: Constitutional and
Comparative Perspectives (OUP/British Academy 2013); See also JUSTICE (n 390).
404
HL Deb 21 July 1998, vol 592, col 791, ‘[T]here could be instances where it would be more convenient for
legislation on devolved matters to be passed by the UK Parliament. However, as happened in Northern Ireland
earlier in the century, we would expect a convention to be established that Westminster would not normally
legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament’. Confirmed
in the Memorandum of Understanding dated 13 December 2013 cm 5240, para 13; more recently in the
Memorandum of Understanding and Supplementary Agreements dated September 2012.
405
NIA 1998 Schedule 2.
406
SA 1998 Schedule 5.

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within their respected regions, over ‘devolved’407
or ‘transferred’408
matters including health
and social care and environmental matters.
In regards to human rights however, it appears at first glance that they are a reserved or
excepted matter. The HRA is impliedly a reserved matter as the devolved institutions cannot
modify the HRA409
(entrenchment). ‘International relations’ and ‘foreign affairs’ such as the
relationship with the CoE and the ECtHR also fall under Westminster Parliaments exclusive
competence. Yet as Himsworth states,410
these considerations do not result in ‘human rights’
themselves being formally reserved. This would be a necessary inference from the fact that
human rights are not explicitly reserved to Westminster.411
In fact what does become apparent is that if Westminster attempted to repeal and replace the
HRA with a UK BoR, this would ultimately touch upon devolved competencies in numerous
ways.
Firstly, notwithstanding the reserved nature of international relations and foreign affairs, the
‘observation and implementation’ of the ECHR within their regions is a devolved matter.412
It
could then also be argued that the HRA becomes partly a devolved matter as it is strictly a
domestic vehicle for the Convention, thus associated with the ‘observation and
implementation’ of the ECHR.413
Furthermore a substituted BoR would undoubtedly touch
upon devolved competences through its redefining of Convention rights, possibly ‘in language
reflecting our own heritage and tradition’,414
especially if this entails qualifications on the
meaning or breadth of the Convention rights through attempting to clarify415
or adjust the scope
and balance of rights. This would either reduce or increase devolved competency in areas such
407
SA 1998 ss28 and 29.
408
NIA 1998.
409
SA, s 29 and Schedule 4; NIA S. 6 (2f) and 7(1).
410
Chris Himsworth 'Devolved Human Rights', (School of Law Working Paper Series, 2011/22 SSRN, 2011) <
http://www.law.ed.ac.uk/people/chrishimsworth > Accessed 1 February 2014. See Speaight QC (n 252) (opinion
of James Mure QC).
410
JUSTICE (n 390).
411
JUSTICE (n 390).
412
NIA 1998 Schedule 2, para. 3(c); SA 1998 Schedule 5, para. 7(2); GWA 2006 Schedule 5.
413
JUSTICE (n 390); See also C O’Cinneide, ‘Human rights, Devolution and the Constrained Authority of the
Westminster Parliament’ (UK Const. L. Blog, 4th March 2013) <
http://ukconstitutionallaw.org/2013/03/04/colm-ocinneide-human-rights-devolution-and-the-constrained-
authority-of-the-westminster-parliament/ > Accessed 2 February 2014.
414
The Commission’s Report (n 355) 147, para 8.8.
415
Cameron D, ‘Balancing Freedom and Security – a Modern British Bill of Rights’ The Guardian (June 26,
2006, Centre for Policy Studies) < http://www.theguardian.com/politics/2006/jun/26/conservatives.constitution
> Accessed 5 January 2013, ‘it should protect the fundamental rights set out in the European Convention on
Human Rights in clearer and more precise terms.’

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as criminal justice and education416
and would affect the requirement on the devolved bodies
to comply with Convention rights.417
What’s more, the enactment of additional rights could
introduce further constraints on the legislature’s devolved competency, for example a right to
healthcare which is a devolved responsibility. Not least a BoR would clearly require
amendments to the devolution statutes.
In simpler terms this shows that the enactment of the suggested UK BoR would require clear
consent from the Scottish Parliament and the NI and Welsh Assembly’s. Given the already
shown widespread support for the current human rights system and the doubting views
regarding a replacement BoR, this consent would not be forthcoming.
Legally, constitutional conventions are traditionally not enforceable by the courts,418
and so in
theory Westminster Parliament could, despite an inevitable political backlash, still look to enact
a BoR regardless of consent. Yet, as has been shown, the devolved bodies are able to legislate
in the realm of ‘implementing and observing’419
the ECHR and so as O’Cinneide says, they
could ‘restore much of the status quo.’420
It is likely that the devolved would simply introduce
a HRA equivalent giving equal or even greater protection. But such constitutional restructuring
would be highly undesirable. It would create troubling inconsistencies and complexities within
the UK legal system, not least because powers are not all ‘neatly separated into watertight
compartments’,421
with clear overlaps between devolved and reserved powers, for example
immigration control (reserved) and criminal justice or social welfare (devolved).422
Justice in
their response to the Commission, highlighted that enacting a UK BoR could lead to four
different models.423
To slightly reconfigure Bells recent quote, ‘to produce one Bill of rights
may be regarded as a misfortune. To produce four, looks like carelessness’.424
416
Jack Beatson, Stephen Grosz, Tom Hickman and Rabinder Singh, Human Rights: Judicial Protection in the
UK (Sweet & Maxwell, 2008) 801.
417
SA s 29 (2)(d) and s 57 (2); NIA s 6 (2)(c) and s 24 (1)(a); GWA 2006 s 81 (1) and s 94 (6) (c).
418
M Elliot & R Thomas, Public law (OUP 1ST
edn 2011) 484; See also AG v Jonathan Cape Ltd [1975] 3 All
E.R.
419
NIA 1998 Schedule 2, para. 3(c); SA 1998 Schedule 5, para. 7(2); GWA 2006 Schedule 5.
420
C O’Cinneide, ‘Human rights, Devolution and the Constrained Authority of the Westminster Parliament’
(UK Const. L. Blog, 4th March 2013) < http://ukconstitutionallaw.org/2013/03/04/colm-ocinneide-human-
rights-devolution-and-the-constrained-authority-of-the-westminster-parliament/ > Accessed 2 February 2014.
421
Robert Hazell, ‘The Continuing Dynamism of Constitutional Reform’ [2007] 60(1) Parliamentary Affairs 3,
6.
422
C Himsworth, ‘Devolution and its Jurisdictional Asymmetries’ (2007) 70 MLR 31.
423
JUSTICE, Commission on a Bill of Rights: Do we need a bill of rights? JUSTICE’s Response (November
2011) < www.justice.org.uk > Accessed 15 March 2014, 18, para 33.
424
Bell (n 352).

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5.3 Final Thoughts
The complexities and effect of this ‘devolution dimension’ are underestimated in some areas
as merely ‘the tail wagging the dog’.425
The Commission themselves conceded that they did
not fully realise the implications of this being a ‘Kingdom of different nations.’426
What has been shown is that devolution seriously looks to undermine the ‘ownership’ objective
of a UK BoR. There is a strong support for the current human rights system and thus
subsequently little support for a UK BoR, which is needed to be meaningful and effective.427
Varying and contrasting views on human rights make it particularly difficult for such a
document to represent the needs of all and the increasing autonomy of the devolved, especially
regarding Scottish independence and the NI BoR process, evidences that a UK BoR could have
a highly divisive effect; The UK as a union of four countries, is now hanging by a thread.428
More fundamentally, this ownership issue puts the possibility of a BoR being introduced
beyond reality as it becomes apparent that human rights and devolution regimes are no longer
malleable; the UK is not the place it once was.429
Assessing the legal provisions of the statutes
confirms a now common assertion that the possibility of enacting a UK BoR relies substantially
on the ‘unlikely’ consent of the devolved.430
425
P Sands & H Kennedy, ‘In Defence of Rights’ in Commission on a Bill of Rights, ‘A UK Bill of Rights: The
Choice before us’ 18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013.
426
See M Elliot, ‘A Damp Squib in the Long Grass: The report of the Commission on a Bill of Rights’ [2013]
EHRLR 137-151; referring to the Commission on a Bill of Rights, ‘A UK Bill of Rights: The Choice before us’
18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013, 18, para 43.
427
Wadham (n 397) 35.
428
BBC News, ‘Scottish Independence: Seven Months to Save UK, Cameron Says’ BBC (7 February 2014 <
http://www.bbc.co.uk/news/uk-politics-26071166 > Accessed 10 February 2014.
429
Harvey (n 394).
430
JUSTICE (n 390).

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CHAPTER 6
Conclusion
The UK constitution is not what it once was. In this BoR context what has to be realised is that
the surrendering of power431
to a now ever encroaching EU and the domestic shift to a more
federal UK, means that Parliament’s ability to alter human rights, in practice, is greatly
restricted.
In framing the underlying issues with the HRA and its relationship with the Convention system
and considering current political attitudes,432
it has been highlighted that a change in UK human
rights law is inevitable. In utilising the BoR Commission report433
and its subsequent
criticisms434
two very different BoR models were put forward as possible future reform.
However in grappling first with the European legal framework and then second with the
domestic devolution factor, it becomes apparent that such future reform would prove
particularly difficult, if not impossible.
Although the common reasons for the supposed difficulty of enacting a UK BoR decoupled
from the ECHR do not totally stand up to analysis, it is the current and future effects of the
Lisbon Treaty’s legal changes which make such a model improbable. The effect of the EU’s
accession to the ECHR has clearly not been realised. Furthermore, the Convention system, via
the Charter of fundamental rights now legal affect, is basically reintroduced into the UK. This
restricts the effectiveness of any future change. The clear and direct effect of the Charter has
been recently evidenced by Chris Grayling’s attempt to limit its applicability within the UK.435
Directing attention domestically, the devolution aspect seems to put a final nail in the coffin of
a UK BoR being possible. An ECHR incorporating UK BoR would not fulfil its ‘ownership’
objective when thought is given to the fact that the UK is now anything but united, especially
when it comes to human rights. Harvey states that the UK BoR solution is ‘invested with
431
ECA 1972.
432
M Brown, ‘Scrapping Human Rights Act is a priority for the Tories, vows Theresa May’ Express (October 1st
2013) < http://www.express.co.uk/news/uk/433498/Scrapping-Human-Rights-Act-is-a-priority-for-the-Tories-
vows-Theresa-May > Accessed 18 February 2014.
433
Commission on a Bill of Rights, ‘A UK Bill of Rights: The Choice before us’ 18 December 2012 Vol. 1 <
http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013
434
Elliot M, ‘A Damp Squib in the Long Grass: The report of the Commission on a Bill of Rights’, [2013]
EHRLR 137-151.
435
O Bowcott, UK Government to Use Court Case to Establish Limitations of EU Charter’ The Guardian (29th
January 2014) < http://www.theguardian.com/law/2014/jan/29/uk-government-court-case-establish-limitations-
eu-charter > Accessed 5 February 2014.

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expectations of national renewal that it can never meet.’436
This lack of ownership then
undermines the possibility completely as it is illuminated that due to the effect of the
devolutions statutes and the Sewel convention, any HRA replacement would require the
consent of the devolved. JUSTICE stated that they see any ‘agreement on a system which
reflects – and respects – the devolution settlement’ as impossible.437
The original question posed by this dissertation was whether a UK BoR would be possible
considering the implications of the European and domestic constitutional landscape in the UK?
In the view of this author the effect of the discussed implications on both models strongly puts
such possibility for now, beyond reach.
436
C Harvey, ‘Taking the Next Step? Achieving another Bill of Rights’ [2011] 11 (1) European Human Rights
Law Review 24.
437
JUSTICE, Commission on a Bill of Rights: Do we need a bill of rights? JUSTICE’s Response (November
2011) < www.justice.org.uk > Accessed 15 March 2014.

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