The United Kingdom famously has no codified constitution. We have a constitution of statute, yes, but also of memory, practice, and trust: a living settlement made not just by jurists, but by generations of free people learning how to govern themselves. Our liberties were not bestowed by international courts. They were recognised, won, defended, and preserved through Parliament, common law, custom, conscience, and the habits of a democratic people.

After the Second World War, the democratic nations of Western Europe had to look hard at what had happened on their soil and under their governments. Unlike our neighbours on the Continent, we in Britain did not have to be ashamed of what our leaders had done. The Continent, marked by trauma, sought for itself a new political architecture in European integration. Britain emerged with renewed confidence in its own institutions—so much so that we helped the nations of the continent draft a Convention, based on the principles already embedded in British law, to defend individual rights against a future tyrant.

From 1972 onwards, that confidence was steadily surrendered. The European Communities Act and the Human Rights Act were different statutes with a common goal of displacing the judgement of elected representatives and elevating international law above the democratic will of the British people.

The vote to leave the European Union in 2016 has been both a triumph and a failure. A triumph because, against the combined pressure of official, judicial, diplomatic and media opinion, the ballot box prevailed. A failure because, ten years on, Brexit remains unfinished. The whole United Kingdom, and Northern Ireland especially, remains subject to laws made in Brussels, by institutions for which our people did not vote and by decision makers we cannot dismiss. The present Labour Government is proposing still closer alignment with Brussels, as though the 2016 referendum never happened.

If the United Kingdom is to withdraw from the European Convention on Human Rights, it must not repeat the mistakes of Brexit. Withdrawal must be done properly, with clarity, foresight, and clear planning.

That is why this report by the Prosperity Institute matters. It moves the argument from public advocacy to a draft statute, a workable model for how the UK might leave the ECHR.

The purpose of Parliament is to preserve and enhance the freedom and prosperity of the British people. That requires borders that mean something, laws that are made by those we can dismiss, and rights are rooted in the citizenship, duties, and inheritance of this country. It is not moral courage to insist that international law compels us to extend every benefit of citizenship to anyone who succeeds in setting foot on our soil. It is a failure of national responsibility.

Britain must regain its confidence and its capacity to self-govern. I welcome this report as an important contribution to the debate about the means to do what is necessary: to leave the ECHR in an orderly and responsible way, and to finally take back control of our borders and our laws.

Danny Kruger MP

“The restoration of a properly functioning democratic constitution must start with the repeal of the Human Rights Acts which takes power from voters and gives it to unaccountable judges. This report shows how it could be done.”

The Rt. Hon. Sir Jacob Rees-Mogg

Damien Shannon is Director of Governance at the Prosperity Institute. He leads the Institute’s work into government and institutional reform. He is a former civil servant with over a decade of experience in the Cabinet Office, the Home Office and 10 Downing Street.

His research interests include the relationship between Ministers and officials, public accountability and transparency, and improving competition and competence in the Civil Service.

Although this report bears my name as its author, it is the product of a lengthy period of debate, discussion, and reflection across the entire research team within the Prosperity Institute. It has been my good fortune to give expression to the collective wisdom of my colleagues, and I am grateful for their efforts in the creation of this report and the attached Bill. I am also indebted to Amar Johal, formerly of the Prosperity Institute, who set in motion our legislative drafting efforts and provided the groundwork for this report to be possible. I am also indebted to the various lawyers, civil servants, academics, peer reviewers, and politicians who have commented, criticised, and encouraged us in drafting this report. Any mistakes are entirely my own.

Damien Shannon

ECHR: European Convention on Human Rights

ECtHR: European Court of Human Rights

ERA: Employment Rights Act

HRA 1998: Human Rights Act 1998

TCA: Trade and Cooperation Agreement

In a previous Prosperity Institute paper, Why and How to Leave the ECHR: Roadmap to Freedom, authors Suella Braverman and Guy Dampier set out a high-level argument and roadmap for the United Kingdom’s withdrawal from the European Convention on Human Rights (‘ECHR’, ‘the Convention’).

The purpose of this follow-up paper and its accompanying draft Bill is to develop the previous paper’s plans into credible draft legislation. We have produced a draft Bill which would provide direct statutory authority for the Prime Minister to issue a Notice of Denunciation under Article 58 of the Convention, so withdrawing the United Kingdom from the Convention. Our Bill would also repeal the Human Rights Act 1998 (‘the HRA 1998’).

The HRA 1998, in giving domestic effect to the Convention rights, is a core constitutional statute of the United Kingdom. The purpose of the HRA 1998 and Convention is to serve as a guardrail on the capacity of Ministers, Parliamentarians, Assembly Members, and public authorities to legislate, deliberate, decide, and act.

We envisage two primary effects of withdrawing from the Convention and repealing the HRA 1998. One is that public authorities will be able to discharge their functions in ways that are presently unlawful because they are incompatible with the Convention rights. Two is that there will be a significant reduction in the grounds upon which individuals and corporations can challenge the exercise of state power.

The result is that it would become easier for public authorities to take many decisions, to take them quickly, and they would face a lower probability of judicial scrutiny. This would extend the capacity of those public authorities to take positive, or at least popular, decisions in a timely fashion. It would, however, also expand the scope for them to make significant, perhaps grave, mistakes. Some of those mistakes would not be easily susceptible to ex ante or ex post judicial inquiry without the HRA 1998 in place.

Were our Bill to be enacted, the United Kingdom would return to something closer to its historic, Diceyan constitution in which there are no limits on Westminster’s parliamentary authority. In such a constitution, the political accountability mechanisms of Parliament take on decisive importance. The capacity and willingness of parliamentarians to question, probe, expose, deny, censor, and direct the executive, its agents, and the wider emanations of the state would become the central protection against excessive and authoritarian government.

We are presenting this Bill for two reasons. The first is to raise public understanding that withdrawal from the Convention, and repeal of the HRA 1998, is not a purely mechanistic process and involves significant policy choices.

The second is that the policy ambitions of Labour, Reform UK, and the Conservatives, particularly their commitments to improve deportation rates of those individuals deemed ineligible for asylum or humanitarian protection in the UK, will continue to be difficult to achieve for so long as the HRA 1998 remains on the statute book.

Our Bill states that repeal of the HRA 1998 would not come into force in Northern Ireland until two years after the day on which the Bill received Royal Assent. Our view is that a negotiated agreement on the future of civil rights in Northern Ireland would be a preferable outcome to the unilateral imposition of a solution from Westminster.

We conclude against the introduction of a British Bill of Rights to replace the HRA 1998, as this would either defeat the purpose of repeal if effective or serve little purpose if not.

We are frank that departure from the ECHR and repeal of the HRA 1998 presents both a risk and an opportunity. The risk is that advocates of a rights-based constitution are proven correct and that our political institutions prove to be incapable of protecting our rights. But the opportunity is that our government may finally respond to democratic will and that the quality of our institutions will improve. We find in favour of the opportunity.

In a previous Prosperity Institute paper, Why and How to Leave the ECHR: Roadmap to Freedom, authors Suella Braverman and Guy Dampier set out a high-level roadmap for the United Kingdom to withdraw from the European Convention on Human Rights (ECHR, ‘the Convention’).[1] They laid out the reasons for withdrawal, refuted the primary arguments in favour of remaining, made clear the lawfulness and precedent for subsequent amendment of the Belfast Agreement, and outlined a structured and careful plan for enacting withdrawal.

In this follow-up paper, we have produced a draft Bill which provides direct statutory authority for the Prime Minister to issue a ‘Notice of Denunciation’ under Article 58 of the Convention, so withdrawing the United Kingdom from the Convention. Our Bill would also repeal the Human Rights Act 1998 (‘the HRA 1998’).

The Bill is attached at Annex A. We explain below the policy, diplomatic, and legal considerations that informed our drafting approach to the Bill and why we adopted certain clauses, particularly in relation to Northern Ireland.

This will be the first of an ongoing series of papers which will set out some of the opportunities and risks presented by repeal of the HRA 1998 and withdrawal from the Convention.

The significance of leaving the ECHR

There is a popular aphorism that the constitution of the United Kingdom can be described in just eight words: “Whatever the King-in-Parliament enacts is law”. The origin of that rule is a mixture of court decisions, scholastic research, and history, and it has perhaps been best elucidated by A.V. Dicey in his 1885 Introduction to the Study of the Law of the Constitution. In the Diceyan theory of the British constitution, there are three basic rules: parliamentary sovereignty is unlimited; no Parliament may bind a successor; and no court or other body may question an Act of Parliament. Dicey’s approach has been repeatedly affirmed as correct by our highest courts.

In this constitutional settlement, government is both drawn from and accountable to Parliament, and the House of Commons is in turn accountable to the electorate through the ballot box. The wisdom of government action or inaction is a judgment left to the electorate. Our courts confine themselves to ensuring that those who exercise public functions act within the legal authority conferred upon them by Parliament.

The twentieth century saw two major innovations that challenged, although did not extinguish, this historic British constitution. The first came in 1972, when Parliament enacted the European Communities Act and incorporated into our domestic legal system the principle of the supremacy of the law of the European Union. For the first time in the United Kingdom’s history, our courts were granted the power to strike down Acts of Parliament that were inconsistent with the laws and treaties of the European Union.

The second came in 1998, when the Convention was given effect in domestic law through the HRA 1998. Crucially, the Convention requires judges to both consider the proportionality of government decision making and to balance competing interests—an inherently normative exercise that compels judges to subjectively adjudicate on what are often political disputes.

The enactment of the HRA 1998 was a central pillar of the lasting peace and constitutional settlement secured in Northern Ireland by the Belfast Agreement. The devolved Parliaments and Assemblies in Scotland, Wales, and Northern Ireland are all forbidden from legislating in a way that is incompatible with the Convention rights. All Bills introduced by government into the United Kingdom Parliament must expressly state, on the face of the Bill, whether they are in the sponsoring Minister’s view compatible with the Convention, whilst all Acts of the United Kingdom Parliament are susceptible to judicial review to determine their compatibility. All other decisions and acts of government—including secondary legislation—are subject to the full range of remedies of our domestic courts, including strike-down powers, if they are found to be incompatible with the Convention.

The purpose of the HRA 1998 and Convention is to serve as constraints on the capacity of Ministers, Parliamentarians, Assembly Members, and public authorities to legislate, deliberate, decide, and act. In some areas of public policy that are nominally the responsibility of Ministers, especially immigration and border control, the HRA 1998 helped transfer decision-making responsibility to courts and tribunals. Between 1990 and 2010, the number of applications for permission to bring a judicial review in England and Wales increased almost five-fold, an increase almost entirely driven by immigration claims.[2]

The HRA 1998 is one of the primary enablers of two developments in our constitution: the politicisation of the judiciary, and the judicialisation of politics. Both have served to undermine the core relationship of accountability between voters and parliamentarians, enfeebling democracy and instead requiring a legal clerisy to determine the morality of state action.

It is now the open policy of two of the United Kingdom’s political parties—the Conservatives and Reform UK—to withdraw from the Convention and repeal the HRA 1998. Were their ambitions to be realised, we envisage two primary effects.

One is that all public authorities would be able to act, or refrain from acting, in ways that are presently unlawful because they are incompatible with the Convention. In some areas, especially immigration and removals policy, this would mean political considerations of the community—as represented by Ministers—may play a greater role than the legal rights of individuals subject to removal and deportation. The role of politics would be expanded, and the role of judges would be reduced.

The other effect is that there would be a reduction in the grounds upon which individuals and corporations could challenge the exercise of state power. It follows that the breadth, if not necessarily the quantity, of legal challenges would likely be reduced. This would mean that some decisions become easier for public authorities to take, and the time between a decision being taken and the perceived public result would begin to lessen as fewer decisions face suspensory effect pending the determination of a public law challenge.

The likely result is that it would become easier for public authorities to take decisions quickly, and with a narrowing of the grounds for judicial scrutiny. This would extend the capacity of those public authorities to take positive, or at least popular, decisions in a timely fashion. It would, however, also expand the scope for them to make significant, perhaps grave, mistakes without ex ante or ex post judicial inquiry.

There are instances of the abuse and misuse of power by British public authorities which may well have been left to stand, but for the presence on the statute book of the HRA 1998. For example, in 2001, Tony Blair introduced indefinite imprisonment of terrorism suspects without trial, a practice only abandoned after it was comprehensively criticised by the Appellate Committee of the House of Lords for want of compliance with the Convention.[3]

Equally, there are examples of tribunal and court decisions which rely upon the HRA 1998, which have generated significant political and public concern, but which cannot lawfully be overridden by Parliament for so long as we remain a signatory to the Convention. For example, in 2005, the European Court of Human Rights (‘ECtHR’) decided that the UK’s longstanding ban on prisoners being able to vote in general elections was incompatible with the Convention.[4] Similarly, the attempt by Parliament to draw an end to the prosecution of armed forced veterans who served in Northern Ireland, where the relevant legislation was ruled incompatible with the HRA 1998 by the Northern Ireland High Court and Court of Appeal, has been the subject of severe criticism.[5]

Withdrawal from the Convention and repeal of the HRA 1998 are decisions which should not be considered, or taken, in isolation from or without significant prior deliberation as to what would follow such a decision. They affect the entire constitutional settlement the UK has reached in the post-Blair era.

Were our Bill to be enacted, the United Kingdom would return to something closer its historic, Diceyan constitution. The political accountability mechanisms of Parliament would take on decisive importance. The capacity and willingness of Parliamentarians to question, probe, expose, deny, censor, and direct the executive, its agents, and the wider emanations of the state would become the central protection against excessive and authoritarian government. MPs, unlike judges, are compelled by democratic accountability to respond to public pressure. With fewer controls from our courts and international law to circumscribe their decisions, Parliamentarians would need to rely upon their own judgment when deciding whether and how to respond to the endless flow of challenges that politics presents.

We intend to explore these challenges in future papers and have considered them briefly in the conclusion to this paper.

Why are we presenting a Bill?

The twentieth-century model of British politics is that, ahead of a general election, political parties produce broad-brush written manifestos which contain high-level political commitments upon which they then campaign. Once elected to office, political leaders entrust the contents of their manifestos to civil servants. In so doing, politicians immediately delegate almost all operational, legal, and policy control to officials who they have very little capacity to appoint, dismiss, or otherwise induce to behave in a certain way.

This places newly elected politicians in a position of dependency upon officials. If, for whatever reason, those officials are slow or reluctant to enact policies or to respond to political direction, this leaves politicians with few levers at their disposal to effectuate their ambitions.

We are presenting a Bill for two reasons. The first is to raise public understanding that withdrawal from the Convention, and repeal of the HRA 1998, is not a purely mechanistic process. There are many policy choices which will need to be taken to inform how politicians go about achieving their goals and we have sought to address the key ones in this paper and the attached Bill.

The second is that the policy ambitions of Labour, Reform UK, and the Conservatives, particularly their commitments to improve deportation rates of those individuals deemed ineligible for asylum or humanitarian protection in the UK, will continue to be extremely difficult to achieve for so long as the HRA 1998 remains on the statute book. There is thus a strong case to be made for an incoming government, elected on a mandate to withdraw from the Convention, to be able to achieve that goal as quickly as possible and not leave their ambitions contingent upon the willingness and expeditiousness with which civil servants produce a Bill.

The Notice of Denunciation under Article 58 of the Convention

The process for leaving the ECHR is governed by Article 58 of the Convention. This article requires a signatory state to issue a formal notice of denunciation to the Secretary General of the Council of Europe. Withdrawal is not instantaneous. A six-month period commences from the date of notice, during which the UK remains a signatory and is bound on the international law plane to continue to accept the jurisdiction of the ECtHR.

Upon the expiry of the six-month period, all nations and regions of the United Kingdom, along with overseas territories and crown dependencies where it applies, would cease to be a signatory. There is no mechanism within the Convention for a partial withdrawal—the entire state withdraws.

In R (Miller) v Secretary of State for Exiting the European Union (‘Miller 1’), the Supreme Court held that, where the exercise of the prerogative power to withdraw from a treaty would frustrate rights enacted by Parliament (in that case, the European Communities Act 1972), prior parliamentary approval is required to authorise treaty withdrawal.[6] We anticipate that our courts might take a similar view of any attempt to withdraw from the Convention through exercise of the prerogative. Therefore, Clause 1 of our Bill provides express statutory authority for the issuing of the denunciation notice.

Whilst notification of treaty withdrawal would ordinarily be carried out by the Foreign Secretary, our view is that the Prime Minister, acting on behalf of the whole government, should issue the denunciation notice. We anticipate that, notwithstanding direct parliamentary authorisation, attempts at judicial review are almost certain. Our view is that the most robust position from which to resist such challenges is Downing Street, and we have some concerns over whether Foreign Office lawyers could be entrusted to manage such litigation effectively.

Preserving the prerogative

Although we have introduced Clause 1 to safeguard against the possibility of a judicial review challenging the issuing of the Notice of Denunciation, our view is that the HRA 1998 is sufficiently different from the European Communities Act 1972 that Miller 1 may not apply. It would thus be entirely appropriate for the Prime Minister to issue the Notice of Denunciation by exercising prerogative powers.

Clause 2 of our Bill affirms that nothing in the Bill would affect His Majesty’s prerogative in relation to the conduct of international relations or otherwise. It also states that the issuance, or purported issuance, of a notice of denunciation before the Bill came into force should be treated as if it were issued under Clause 1.

The jurisdiction of the European Court of Human Rights during and after the denunciation period

During the denunciation period, the United Kingdom would remain bound on the international law plane to comply with the decisions of the ECtHR. We also expect the ECtHR would continue to assert ongoing jurisdiction, after the denunciation period, in relation to facts that gave rise to any legal claim prior to the end of the denunciation period.

Given the core rationale for withdrawal from the Convention is to restore decision making authority to Parliament, the continuing, undiminished recognition and compliance with decisions of the ECtHR after any Bill authorising withdrawal were enacted would not, in our view, be politically sustainable. It would give rise to the possibility of core decision making functions of the government—especially in relation to border control—continuing to be policed by the ECtHR long after Parliament’s formal decision to withdraw from the Convention.

Accordingly, Clause 3 of our Bill states that it would be the policy of His Majesty’s Government to no longer recognise the jurisdiction of the ECtHR after the end of the denunciation period.

During the denunciation period, our Bill states that decisions of the ECtHR would have no domestic legal effect, but that Ministers would retain the discretion to award damages or compensation where the ECtHR so directs.

This provision would not preclude Parliament from voluntarily choosing to comply with a specific judgment through primary legislation if MPs deemed this appropriate. However, the Bill would leave no binding domestic law obligation to obey a decision of the ECtHR.

Whilst we recognise that this Clause will be controversial, it is designed to avoid a situation in which the ECtHR continued to supervise the core functions and powers of Ministers and Parliament. The residual power to make awards of damages or compensation means individuals who made successful claims to the ECtHR would not be left entirely without remedy.

Repeal of the HRA 1998

Clause 4 of the Bill would repeal the HRA 1998. This repeal raises profound political and constitutional questions, which we have explored below in the order that they are addressed in the Bill.

The status of judicial interpretations made under Section 3 of the HRA 1998

Under Section 3 of the HRA 1998, our courts and tribunals are under an obligation to interpret primary and subordinate legislation compatibly with the Convention rights “so far as it is possible to do so.” These interpretations can amend the plain meaning of statute, effectively rewriting legislation from the bench. Perhaps surprisingly, there exists no comprehensive record of how often the courts have used this power, leaving Parliamentarians somewhat in the dark as to the current state of the law. Academic researchers have estimated the power is not frequently used, but these remain estimates. A database published by the Ministry of Justice also indicates that the power has not been frequently used but its authors have made clear that it does not purport to be exhaustive.[7]

Two notable examples can be considered for our current purposes:

Example: R v A (No. 2) [2001] UKHL 25[8]

In this criminal law case, the accused was due to be tried for rape. His defence included his claim that the accuser had consented, and he further claimed that he had been in a consensual sexual relationship with the accuser for approximately three weeks prior to the alleged rape. His counsel sought to admit evidence and cross-examine the accuser about that relationship. Under Section 41 of the Youth Justice and Criminal Evidence Act 1999, there was a broad presumption against the cross examination of an accuser in a sexual offence case about their sexual history. The House of Lords exercised their power under Section 3 of the Human Rights Act 1998 to imply additional words into Section 41 of the Youth Justice and Criminal Evidence Act 1999 which would admit evidence and allow questioning where a matter is so relevant to the issue of consent that its exclusion would endanger the fairness of the trial.

Example: Gilham v Ministry of Justice [2019] UKSC 44

Joanna Gilham, a district judge, had raised concerns about the effects of court service cuts, including insecure and unsuitable courtroom accommodation, increased workload, and administrative failures. She said those disclosures led to a series of detriments, including delay in dealing with her grievance, bullying, being undermined, and damage to her health. She brought Employment Tribunal proceedings, but the whistleblowing claim depended on her being a “worker” under Part IVA of the Employment Rights Act 1996 (‘ERA’). The tribunal, the Employment Appeal Tribunal, and the Court of Appeal all held that she was not. The Supreme Court unanimously allowed her appeal in a judgment given by Lady Hale. The Court relied upon section 3 of the HRA 1998, drawing on Ghaidan v Godin-Mendoza. Lady Hale held that it was possible to read section 230(3)(b) ERA compatibly with Articles 10 and 14 so that it covered judicial office-holders for whistleblowing purposes.

In both these examples, judges, relying upon the powers of the HRA 1998, effectively enacted amendments to existing legislation, a function which, in our view, rightly belongs to Parliament.

We have through Clauses 5(1)-(2) of our Bill introduced the principle that all interpretations of statute made in reliance on Section 3 would cease to have effect once the Bill received Royal Assent. This would largely restore the orthodox common law rules of statutory interpretation.

Recognising that Ministers may decide that some Section 3 interpretations have been beneficial or remain practically necessary, we have proposed a safeguard. Ministers could under Clauses 5(4)-(5), and subject to affirmative resolution in both Houses, preserve individual interpretations that they judged ideal or necessary. This would ensure that, while the principle of Section 3 is abolished, certain legal outcomes could be retained through a process of parliamentary consent.

Although we have not included within the attached Bill a schedule of preserved Section 3 interpretations, we remain open to this as a conceptual approach and may identify some possible interpretations that ought to be preserved in future publications.

Pending proceedings before courts and tribunals

At any point in time when the HRA 1998 is repealed, there would be a significant number of pending cases before the courts and tribunals of the United Kingdom that had been advanced or resisted based on the HRA 1998’s being in force. While our Bill would not prevent these outstanding cases from continuing through the courts, it would restrict the available remedies the courts could grant.

If our Bill were to receive Royal Assent, the only remedy a court could award for a breach of the HRA 1998 found in an ongoing case is the remedy of damages. All other remedies previously within the gift of the courts—including mandatory orders, injunctions, quashing orders, and declarations of incompatibility—would be expressly withdrawn for actual or anticipated breaches of the Convention.

The Bill further provides that, once the Bill had received Royal Assent, no new claims could be advanced in our domestic courts based on a breach of the Convention rights. This is to secure a clean break with the Convention and the jurisprudence of the ECtHR.

Whilst we recognise that this approach would be controversial and would be a departure from the orthodox approach outlined in Section 16 of the Interpretation Act 1978, it would not be without precedent. The alternative would be years of first instance decisions and appeals, advanced on the basis of the Convention, and which would have the potential to bind the capacity of Parliament and Ministers to act—particularly in the field of border control—long after the United Kingdom had withdrawn from the Convention and repealed the HRA 1998. We do not think it would be politically sustainable for Ministers to continue to be bound by the Convention in this way.

Other legislation which references the Convention rights or the HRA 1998

Where other legislation confers powers or makes the discharge of functions by a public authority subject to compliance with the HRA 1998 or the Convention rights, Clause 7(1) of our Bill would render those clauses without effect. Clauses 7(2)-(3) would confer upon Ministers a time-limited power to amend other Acts of Parliament that expressly refer to the Convention rights or the HRA 1998, to preserve the coherence of the statute book.

Preservation of law enforcement and judicial cooperation

Part Three of the UK-EU Trade and Cooperation Agreement (‘TCA’), concerning law enforcement and judicial cooperation, allows either party to terminate that Part if the other denounces their membership of the Convention. Under the terms of the TCA, that termination cannot happen before the end of the denunciation period provided for under the Convention.

It is thus inescapable that the effect of denouncing the Convention is that the United Kingdom would run the significant risk of Part Three of the TCA being terminated as a direct result.

To potentially avoid this eventuality from occurring, Clause 7(4) of our Bill would allow the Secretary of State to make such regulations as they consider appropriate for preserving the core elements of Part Three of the TCA. It does, however, place some hard constraints on that power by specifying in Clause 7(5) that it cannot be used to reincorporate the Convention rights or give legal effect to any international agreement.

We have drafted these clauses on the supposition that any future government may have a strong interest in preserving law enforcement and judicial cooperation with the European Union. There would need to be a rapid period of negotiation, once the power in Clause (1) of the Bill had been exercised, to arrive at a position both the United Kingdom and European Union were happy to accept.

Ongoing effect of the Convention in domestic law

It is not just central government which is bound by and subject to the HRA 1998 and the Convention. All public authorities in the United Kingdom are bound by both, and that legal obligation has given rise to an array of guidance, policies, statutory rules, procedures, and even culture within public authorities that have adapted to the requirements of the Convention. Without this being directly addressed, it is possible that public authorities will simply leave materials, processes, and rules that reference the Convention in place. This could easily give rise to the impression, or cultural reality, of dead hand law continuing to govern the United Kingdom.

Clause 8(1) of our Bill clarifies that, in the discharge of their functions, public authorities that were within scope of the HRA 1998 would no longer be allowed take account of the Convention rights or seek to give effect to them. Clause 8(2) would require those same public authorities, within one year of the Bill’s receiving Royal Assent, to review any guidance, policy, or other published document and modify its contents to ensure they were consistent with our Bill.

Clause 8(3) clarifies that any previous decision of any court or tribunal that relied upon the Convention rights, and that does not otherwise fall within the scope of Clause 5 relating to judicial interpretations of statute, would cease to bind any court or tribunal (to the extent it otherwise would have done) once the Bill receives Royal Assent. We have, however, through Clause 8(4) allowed Ministers, by regulation, to preserve the effect of individual judgments.

We anticipate that there will be some examples of Convention-derived decisions where political and cultural expectations are that they should be preserved, and this power allows preservation without enactment.

We fully acknowledge that this gives rise to an administrative and legal challenge akin to that faced by government and civil servants in the years before the United Kingdom fully withdrew from the European Union. Namely, that it is preferable for the law of the land to only change once, rather than having a clean break with ECtHR jurisprudence at the end of the denunciation period before selectively deciding over future years which previous elements of that jurisprudence we ought to reincorporate into our domestic statute law. We nonetheless cannot see any obvious, preferable legislative alternative to the approach we have outlined here.

Our previous paper, Why and How to Leave the ECHR, proposed the establishment of a Case Law Review Commission for this very purpose and we remain of the view that this would be an appropriate mechanism to identify any case law that Ministers ought to preserve.[9]

The position in Northern Ireland

Clause 12(3) of our Bill states that repeal of the HRA 1998 would not come into force in Northern Ireland until two years after the day on which the Bill receives Royal Assent.

We have adopted this approach for several reasons.

First, on our reading, the Belfast Agreement does require the Convention to be given effect in the law of Northern Ireland.[10]

Second, we are of the view that a negotiated agreement on the future of civil rights in Northern Ireland would be a preferable outcome to the unilateral imposition of a solution from Westminster.

Third, we recognise that any such agreement would necessarily need to follow a period of negotiation, primarily between the governments of the United Kingdom and Ireland but involving all communities and parties in Northern Ireland itself. The success of such a negotiation necessarily depends upon factors that cannot be known in advance: who the interlocutors are; the scope and flexibility of their negotiating mandates; their capacity to make concessions; the attitudes of the relevant legislatures and assemblies; and the willingness of all parties to embrace alternatives versus becoming entrenched in their positions.

We accept that the form of words in our Bill implies a conditional commitment by the United Kingdom to breach the Belfast Agreement unilaterally, and that this cannot be interpreted by Ireland, or indeed other interested parties, as anything other than a threat or menace. Whilst we acknowledge this, we can envisage only two alternatives.

One would be disapplying the HRA 1998 immediately in Northern Ireland and without any negotiation at all. We have rejected this on the basis that the best possible outcome is a negotiated agreement, and that even a failed negotiation is better than no attempt at negotiation.

The other would be preserving the HRA 1998 in perpetuity until Ireland agrees to some other form of words. This latter approach would be functionally identical to that taken by former Prime Minister, Theresa May, in her draft withdrawal agreement with the European Union, which envisaged keeping the entire United Kingdom within significant parts of the single market until the European Union agreed that we could leave. This was rejected by Parliament at the time, and we see no reason a similar approach to the Convention would be treated differently by a future Parliament.

We do not see how open-ended commitments, extinguishable only with the goodwill of the other party to a diplomatic negotiation, are compatible with the sovereignty of Parliament. We have, albeit with some reluctance and acknowledgment of the risks, alighted upon the two-year suspensive clause until the Bill repeals the HRA 1998 in Northern Ireland.

We have, through Clause 12(6) of the Bill, proposed a power for the Secretary of State to bring forward the two-year date only if they are satisfied that His Majesty’s Government has reached an agreement with the Government of Ireland for an alternative form of civil rights protection in Northern Ireland.

We have sought in this paper to introduce a defensible, credible Bill that any political party could use to effectuate the United Kingdom’s withdrawal from the Convention and secure repeal of the HRA 1998. In so doing, we have sought to draw attention to some of the complexities and decisions that arise as an unavoidable consequence of this political goal.

The five-year period over which the United Kingdom left the European Union was noteworthy for the overwhelming devotion of political and official resource toward achieving Brexit without much in the way of corresponding thought within political parties as to what to do with autonomy from the European Union, once achieved. The importance of avoiding a replica of that approach with the Convention is one of the reasons we have produced this Bill and why we will be following it with a series of papers which examine some of the core risks and opportunities presented by withdrawal from the Convention and repealing the HRA 1998.

The absence of a British Bill of Rights

The possibility of replacing the HRA 1998 with a new British Bill of Rights has been frequently discussed since the build-up to the 2016 Brexit referendum. It was promised by the Conservatives in their 2015 election manifesto.[11] In 2022, a Bill of Rights Bill was put forward by then-Justice Secretary Dominic Raab, but this was withdrawn in 2023.[12]

The appeal of such a Bill of Rights is understandable. The HRA 1998 serves to limit the powers of the state in four ways: as a sense check on the legislation enacted by Parliament; as a control on the discretionary power of elected government both central and local; as a set of obligations placed upon the judiciary; and as a series of positive and negative duties placed on all public authorities. A Bill of Rights could serve the same purposes.

It is our position that such a Bill of Rights would be undesirable. The Supreme Court of the United Kingdom, and the Appellate Committee of the House of Lords before it, have long embraced the Diceyan concept of parliamentary supremacy. For any British Bill of Rights to constrain the executive and act as a check on Parliament, our view is it would require constitutional entrenchment. This is to both save against implied repeal, and because the moral and legal force of the Bill would amount to little if every subsequent, incompatible Act of Parliament automatically authorised any breach of the very rights the Bill sought to protect.

The longstanding view of our highest courts has been that there cannot be any entrenchment of an Act of Parliament. Any attempt to entrench a British Bill of Rights would seem to require one of two forms of innovation: parliamentary or judicial. We do not think constitutional innovation of that kind can fairly be left to the courts. If Parliament and politicians wish to contemplate the entrenchment of rights, our view is that this must be consciously done.

We are not endorsing the view that a written constitution is desirable—rather, we believe that if politicians wish to replicate the functions of the HRA 1998 through a purely domestic legal basis, this will require constitutional innovation, and it cannot readily be achieved through a simple Act of Parliament. Such innovation would, in our view, effectively defeat the purpose of repeal.

We are further of the view that the substantive rights a British Bill of Rights sought to protect, and any remedies it offered for breach, should be the subject of considered parliamentary and public debate, with participants consciously aware of the commitments into which they are entering.

In the alternative, if a British Bill of Rights were to be purely cosmetic and descriptive, without providing legal remedies for individuals, it does not require the considered deliberation of lawyers, policy makers, civil servants, or indeed a think tank. It would matter little what its contents were.

The future of rights in Britain

The post-1945 history of Britain might be summarised as the gradual accretion of international and domestic legal commitments that sought to place various normative goals beyond politics. Individual rights, climate change, global free trade, European Union membership, and other goals have been argued by their proponents to be so central to human welfare that they are beyond the capacity of the democratic process to scrutinise, query, or abrogate. Successive generations of elected political leaders have freely entered into these commitments, often against the popular wishes of their own voters or, on occasion, without even consulting them.

There is only a narrow window of history within which Britain’s Diceyan constitution coexisted with universal suffrage. Democracy was suspended for a decade after 1935. By 1951 Britain was already a signatory to the Convention, and by 1963 Britain was seeking to dilute its sovereignty within the European Economic Community.

With the United Kingdom’s withdrawal from the European Union, domestic politics asserted itself over international law. To withdraw from the Convention represents a similar assertion of political process over judicial authority: of community interests supervening individual rights where, today, it is often the other way around.

If our Bill were enacted, it would mean that a significant share of our individual and collective rights and liberties would rest on the capacity of our democratic processes to preserve them.

This presents us with both a risk and an opportunity. The risk is that the advocates of rights-based constitutions are proven right and that our political process cannot be entrusted with such responsibilities.

The opportunity, on the other hand, is that our government may, finally, begin to respond to democratic will. MPs will once again shoulder the burdens of legislative deliberation and political responsibility which have for too long been outsourced to the courts. Whatever its faults, democratic politics is the only population-wide aggregation of individual preferences that exists anywhere in the world. It is the only proven peaceful mechanism by which national communities can agree who to entrust to exercise power and how they should exercise it. Even free markets only capture the preferences of those with the resources to participate in them. Withdrawing from the ECHR and repealing the HRA 1998 will restore the judiciary to their historic place as interpreters, not legislators. Political power will return to the British people, exercised through their representatives in Parliament and their decisions at the ballot box, before which both prince and pauper stand as equals.

[1] Suella Braverman and Guy Dampier, Why and How to Leave the ECHR: Roadmap to Freedom (London: Prosperity Institute, 2025). (link)

[2] Ruth Dixon and Christopher Hood, written evidence, Department of Politics and International Relations, University of Oxford, July 2013 [PHS0024]. (link)

[3] A and others v. Secretary of State for the Home Department [2004] UKHL 56, on appeal from: [2002] EWCA Civ 1502. (link)

[4] Hirst v the United Kingdom (No. 2). App no. 74025/01 (ECtHR, .6 October 2005). (link)

[5] Dillon & Ors v Secretary of State for Northern Ireland ([2024] NICA 59). (link)

[6] R (Miller and another) v Secretary of State for Exiting the European Union [2016] UKSC/2016/0196. (link)

[7] Ministry of Justice, “Cases involving an interpretation under section 3 of the Human Rights Act 1998”, 24 October 2023. (link)

[8] R v A (No. 2) [2001] UKHL 25. (link)

[9] Braverman and Dampier, Why and How to Leave the ECHR, 37-38.

[10] Braverman and Dampier, Why and How to Leave the ECHR, 23-35.

[11] Conservative Party, The Conservative Party Manifesto 2015, 60. (link)

[12] UK Parliament, “Bill of Rights Bill”, 2022-23. (link)

A and others v. Secretary of State for the Home Department [2004] UKHL 56, on appeal from: [2002] EWCA Civ 1502. https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&oth-1.htm

Braverman, Suella and Guy Dampier. Why and How to Leave the ECHR: Roadmap to Freedom. London: Prosperity Institute. 2025. https://www.prosperity.com/wp-content/uploads/2025/07/WHY-AND-HOW-TO-LEAVE-THE-ECHR-Updated.pdf

Conservative Party. The Conservative Party Manifesto 2015. https://www.theresavilliers.co.uk/files/conservativemanifesto2015.pdf

Dillon & Ors v Secretary of State for Northern Ireland ([2024] NICA 59). https://www.bailii.org/nie/cases/NICA/2024/59.html

Dixon, Ruth and Christopher Hood. Written evidence. Department of Politics and International Relations. University of Oxford. July 2013. [PHS0024]. https://committees.parliament.uk/writtenevidence/45622/html/

Hirst v the United Kingdom (No. 2). App no. 74025/01. ECtHR. 6 October 2005. https://hudoc.echr.coe.int/eng?i=001-70442

Ministry of Justice. “Cases involving an interpretation under section 3 of the Human Rights Act 1998”. 24 October 2023. https://www.gov.uk/government/publications/cases-involving-an-interpretation-under-section-3-of-the-human-rights-act-1998

R (Miller and another) v Secretary of State for Exiting the European Union [2016] UKSC/2016/0196. https://supremecourt.uk/uploads/uksc_2016_0196_judgment_ce390bd976.pdf

R v A (No. 2) [2001] UKHL 25. https://publications.parliament.uk/pa/ld200001/ldjudgmt/jd010517/regina-1.htm

UK Parliament, “Bill of Rights Bill”, 2022-23. https://bills.parliament.uk/bills/3227

European Convention on Human Rights (Withdrawal) Bill 202x

A Bill to make provision about the United Kingdom’s withdrawal from the European Convention on Human Rights; to repeal the Human Rights Act 1998; to make consequential and transitional provision; and for connected purposes.

e it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows—

PART 1

WITHDRAWAL FROM THE CONVENTION

1       Duty to give notice of denunciation

2       Saving for prerogative powers

(1) Nothing in this Act affects His Majesty’s prerogative in relation to the conduct of international relations or otherwise.

(2) No inference shall be drawn from section 1 as to whether His Majesty’s Government would otherwise have had power to give notice of denunciation.

(3) If His Majesty’s Government have given, or have purported to give notice of denunciation before the commencement of this Part, that notice or (as the case may be) purported notice shall, after the commencement of this Part, be treated for all purposes as if it had been given in discharge of the Prime Minister’s functions under section 1(1) of this Act.

3       Jurisdiction of European Court of Human Rights etc.

(1) It shall be the policy of His Majesty’s Government not to recognise the jurisdiction of the European Court of Human Rights to give judgment in a case in which the United Kingdom is a party after the expiry of the denunciation period.

(2) Where, during the denunciation period, the European Court of Human Rights delivers a judgment in a case in which the United Kingdom is a party, the judgment shall have no effect under the law of any jurisdiction to which this Part extends.

(3) Nothing in subsection (2) shall prevent (but nor shall it require) the payment of sums to another party to the case awarded by the European Court of Human Rights to that party by way of just satisfaction during the denunciation period.

(4) No inference shall be drawn from the provisions of this section as to any effect which judgments of the European Court of Human Rights otherwise have under the law of any jurisdiction to which this Part extends.

PART 2

REPEAL OF HRA 1998

4       Repeal of HRA 1998

(1) HRA 1998 is repealed in accordance with the provisions of this Part.

(2) Notwithstanding the repeal of HRA 1998—

• • (a) if the holder of a judicial office within the meaning of section 18(1) of HRA 1998 is a judge of the European Court of Human Rights when this Part is commenced, section 18(3)-(5) of HRA 1998 continues to apply in respect of the holder of that office until the end of the denunciation period; and

  • (b) the Judicial Pensions (European Court of Human Rights) Order 1998 SI 1998/2768 shall continue to have effect, with such modifications as may be prescribed, in relation to any holder of a judicial office within the meaning of section 18(1) of HRA 1998 who served as a judge of the European Court of Human Rights before the end of the denunciation period.

5       Interpretations reached under section 3 of HRA 1998

(2) Where this subsection applies, the legislation must, after the commencement of this Part, be read and given effect in the way in which it would otherwise have been read and given effect.

(3) Subsection (2) applies in relation to events occurring before the commencement of this Part, as well as to events occurring after its commencement.

(4) The Secretary of State may by regulations provide that, in the case of prescribed legislation, subsection (2) does not apply to such extent as may be prescribed.

• • (a) may modify primary or subordinate legislation to give further effect to provision made under that subsection; and

  • (b)may provide for provision made under that subsection to have effect subject to prescribed modifications.

6       Pending proceedings etc.

(1) No court shall have power to grant a declaration of incompatibility under section 4 of HRA 1998 in proceedings begun before the commencement of this Part.

(2) Where, in proceedings begun before the commencement of this Part, a court would, but for subsection (1) have granted a declaration of incompatibility, it may instead award damages or order the payment of compensation to the applicant.

(3) No person may—

• • (a) begin proceedings under section 7(1)(a) of HRA 1998 after the commencement of this Part; or

  • (b) rely on any Convention right (within the meaning of HRA 1998) in any legal proceedings begun after the commencement of this Part.

(4) Subsection (3) applies to proceedings which relate to matters occurring before the commencement of this Part as it does to other proceedings.

(5) Subsection (6) applies where a person—

• • (a) has begun proceedings under section 7(1)(a) of HRA 1998 before the commencement of this Part; or

  • (b) relies on any Convention right (within the meaning of HRA 1998) in any legal proceedings begun before the commencement of this Part.

(6)Where this subsection applies—

• • (a) a court or tribunal which has the power to award damages or to order the payment of compensation may continue to exercise those powers; and

  • (b)save as provided by this subsection, no relief or remedy may be granted in respect of any act made unlawful by section 6(1) of HRA 1998.

(7) Subsections (2) and (6)(a) shall cease to have effect on the expiry of the denunciation period.

7       Repeal of limitations placed on discharge of functions

(1) Any provision of legislation (other than a provision repealed by the Schedule to this Act) which provides for the discharge of functions by any person to be subject to any provision of HRA 1998 or of the Convention ceases to have effect.

(2) The Secretary of State may, by regulations, repeal or revoke any provision of legislation which is spent by virtue of subsection (1).

(3) The Secretary of State may, by regulations, modify any provision of legislation which is spent by virtue of subsection (1), or replace that provision with such provision as appears to him to be appropriate.

(4) Without prejudice to the generality of subsection (3), regulations may make such provision as appears to the Secretary of State to be appropriate to preserve or improve the effectiveness of arrangements for—

• • (a) extradition or surrender;

  • (b) mutual legal assistance and mutual recognition in criminal or civil matters;

  • (c) information and intelligence sharing for the prevention, detection, investigation or prosecution of serious crime or for the purposes of national security;

  • (d) the transfer or supervision of offenders; or

  • (e) immigration returns and readmission.

8       Effect of the Convention in domestic law

• • (a) delivered by any court or tribunal before the commencement of this Part; and

  • (b) in which the court or tribunal relied upon any provision of the Convention as an essential part of the judgment or decision;

shall, to the extent to which it would otherwise do so, cease to bind any court or tribunal in the United Kingdom.

(4) The Secretary of State may, by regulations, provide that subsection (3) shall not apply to any prescribed judgment or decision.

PART 3

MISCELLANEOUS AND FINAL PROVISION

9       Interpretation and effect of this Act

(1) In this Act—

“the Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed to by the Council of Europe at Rome on 4 November 1950;

“denunciation period” means the period of six months beginning with the day on which notice of denunciation is given;

“the European Court of Human Rights” means the court established under Section II of the Convention;

“HRA 1998” means the Human Rights Act 1998;

“the Northern Ireland Act” means the Northern Ireland Act 1998;

“notice of denunciation” means a notice under Article 58 of the Convention given to the Secretary General of the Council of Europe; and

“prescribed” means prescribed by regulations made by the Secretary of State.

(2) References in this Act to a public authority are to be construed in accordance with section 6 of HRA 1998 immediately before its repeal.

(3) This Act has effect notwithstanding any provision made by or under any other enactment or instrument (including relevant separation agreement law within the meaning of the European Union (Withdrawal) Act 2018).

10    Regulations

may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(4) Any other statutory instrument containing regulations made under this Act shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) A statutory instrument containing—

• • (a) regulations under section 5(4);
  • (b) regulations under section 7(3); or
  • (c) regulations under section 8(4).

may not be made after the end of the period of two years beginning with the day on which this Act was passed.

11     Extent

(1) Part 1 extends to—

• • (a) England and Wales, Scotland and Northern Ireland;

  • (b) the Channel Islands and the Isle of Man;

  • (c) every British overseas territory; and

  • (d) any other territory for whose international relations His Majesty’s Government are responsible.

• • (a) provide that references to HRA 1998 are to be read as references to any corresponding instrument forming part of the law of the dependency or territory; and

  • (b) make such transitional, transitory or saving provision as appears to His Majesty to be necessary or expedient.

(5) The power conferred by subsection (3) is without prejudice to any other power of His Majesty to make laws for any dependency or territory outside the United Kingdom to which Part 1 extends.

12    Commencement

(1) Parts 1 and this Part come into force on Royal Assent.

13    Short title

This Act may be cited as the European Convention on Human Rights (Withdrawal) Act 2026.

SCHEDULE

REPEAL OF DEVOLUTION REFERENCES

(Section 7(6))

Amendments of the Government of Wales Act 1998

1 Omit section 153(2) of the Government of Wales Act 1998.

Amendments of the Scotland Act 1998

Amendments of Northern Ireland Act

Amendments of the Government of Wales Act 2006

23 The Government of Wales Act 2006 is amended in accordance with paragraphs 24–32 below.
24 Omit section 81.
25 Omit Section 108A(2)(e).
26 In section 158(1), omit the definition of “the Convention rights” and the words “other than obligations to observe and implement the Convention rights” in the definition of “international obligations”.
27 In the index of defined expressions in section 159, omit the entry for the “the Convention rights”.
28 In the table in paragraph 1(2) of Schedule 3A, omit the entry in respect of HRA 1998.
29 In Schedule 7A, omit paragraph 10(3)–(4).
30 In the table in paragraph 5(1) of Schedule 7B, omit the entry for HRA 1998.
31 In Schedule 9, omit paragraph 1(1)(e).
32 In Schedule 10, omit paragraph 56.