Keeping human rights, while scrapping them

It's the end of the world as we know it. Or it's a plan to "reform and modernise our human rights legal framework".

We'll just describe it as the Conservative government's longstanding plan to replace the Human Rights Act 1998 with a British Bill of Rights.

The European dimension

Today's Daily Telegraph front page claims that "David Cameron has ruled out withdrawing from the European Convention on Human Rights", or ECHR. The legal commentator Joshua Rozenberg—who is also our legal adviser—agrees that this is off the agenda. But he says the government still intends to go ahead with its plans to introduce a British Bill of Rights.

So what's the difference between pulling out of the ECHR and scrapping the Human Rights Act—and which would be the greater change?

Rolling back the legislation—and the years

The Human Rights Act is legislation that can be amended or repealed by parliament. The ECHR is an international treaty that can be changed only with the agreement of all 47 signatories. Countries that really don't like the treaty can pull out.

As new justice secretary Michael Gove has pointed out, not having a Human Rights Act would be a reversion to the 1990s. By contrast, the British signature on the ECHR dates from 1950.

The ECHR affects what scrapping the Human Rights Act would achieve

Using the ECHR, UK citizens have been able to take cases to the European Court of Human Rights since 1966. The government's formal promise to abide by the judgments given by that Court is binding in international law. Repeal the Human Rights Act tomorrow, and that's still the case.

Leaving this system wouldn't transform the UK into Belarus overnight. But it would allow the government to be far more radical in its Bill of Rights.

We wouldn't be constrained by a treaty obligation to implement decisions of the European court, more of which are likely to go against the UK if we're doing our own thing on human rights.

How people can use human rights in our courts makes a big difference

A Bill of Rights along the lines of the ECHR could still shake things up. It depends what's in it. If British judges retained the powers they have under the Human Rights Act, and the rights were word-for-word identical with the ECHR, a Bill of Rights could be seen as little more than a rebranding exercise.

Nothing stops the government abolishing, for instance, the power of the courts to declare legislation "incompatible" with human rights, inviting Parliament or a minister to change the law (they usually do). It could even stop judges forcing public bodies to live up to human rights standards. Those were new departures, introduced by the Human Rights Act.

But if a Bill of Rights is going to "replace" the Human Rights Act in any meaningful sense, it would be odd if people couldn't actually use it in court. So what we end up with seems likely to be, at the very least, a similar system, but with adjustments to try to clamp down on what the government considers to be abuses. One such suggestion is to introduce an onus on the courts to give more weight to public safety in cases involving terrorists.

The further a Bill of Rights gets from the human rights law made by the European court, the greater the chances of tension.