Conservative politicians have been keen for some time to replace the Human Rights Act 1998 (HRA), which incorporates the European Convention on Human Rights (ECHR), with a British bill of rights, which may or may not be underpinned by the ECHR. This article will explore the difficulties of making such a constitutional change, the relevance of the constitutional principles of parliamentary sovereignty and the rule of law to the debate, and the opportunities that might arise in reframing civil rights and liberties in a ‘British’ bill of rights.
The UK was one of the original signatories to the ECHR, which was drafted by British and French lawyers in 1949 as a response to the violation of rights associated with Nazi Germany and gained international treaty status in 1953. It was not, however, incorporated into UK law at that time, and given Britain’s unwritten constitutional arrangements, the protection of rights for citizens lacked the certainty and clarity that could be found in other countries with codified constitutions. Indeed, the UK’s common law tradition favoured negative liberty, where restrictions on individual freedom determined the extent of residual rights, rather than the positive rights clearly set out in the ECHR.
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