It might be harder to scrap the Human Rights Act than the government thinks. Here's why

In their 80-page manifesto the Conservatives dedicated less than 50 words to a subject that is set to become the biggest test of David Cameron’s authority and the Tories’ small parliamentary majority.

“The next Conservative Government,” it said, “will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights (ECHR), and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”

In the run-up to the election most commentators assumed the pledge was only there to appease the Tory right and would be kicked firmly into the long grass – even with a Tory majority government. Now it seems Mr Cameron and his new Justice Secretary, Michael Gove, are deadly serious.

Senior Conservatives have briefed that abolishing Labour’s 1998 Human Rights Act will be a central part of David Cameron’s 100-day policy priorities.

Mr Cameron faces a battle royal with the judiciary and the devolved administrations in Scotland, Wales and Northern Ireland – not to mention significant numbers of his own MPs. At the heart of the proposals is an attempt to rein in a Strasbourg judiciary that the Tory right blames for stopping the Government deporting foreign criminals and restricting the rights of prisoners to vote.

The new British Bill of Rights would restrict the use of human rights laws “to the most serious cases” and allow Parliament to ignore rulings from Strasbourg that it did not like.

The first problem with the Conservative proposal is that it is not possible for the British Government to “break the formal link” between the UK and the European Court of Human Rights without withdrawing from the Convention completely.

That is because, under our treaty obligations, we have accepted the Strasbourg court as the ultimate arbiter of Convention violations.

For years before the Human Rights Act was introduced, members of the public with a legal grievance used to petition the Strasbourg Court directly because they could not go through the English court system. That could happen again if a Tory Bill of Rights is incompatible with the Convention in areas such as prisoner voting.

The only way to guarantee supremacy for a new Bill of Rights would be to withdraw from the Convention altogether. And that would have profound consequences. Britain was one of the first signatories to the Convention, which was drawn up after the Second World War in response to the human rights abuses of Nazi Germany.

It has over 47 signatories and through the ECHR is widely credited with improving human rights in areas such as minority rights, freedom of speech and unlawful detention through international independent judicial oversight.

As the former Conservative Lord Chancellor Kenneth Clarke has pointed out, if Britain decided to pull out of the Convention or ignored the bits it didn’t like, other countries, with far worse human rights records, could do likewise.

Separate but related problems would arise in Scotland and Northern Ireland. The SNP-led Scottish Government is strongly opposed to any attempt to repeal the Human Rights Act or to withdraw from the European Convention on Human Rights.

And, under the terms of the devolution settlement, to do so would, by convention, require the consent of the Scottish Parliament. Without that, the Government could end up in the constitutional quagmire of having a new British Bill of Rights in England that was not accepted or acknowledged in Scotland.

As for Northern Ireland the problems are even more intractable. The ECHR is integrated into the Good Friday Agreement and to fundamentally alter how it is given legal effect in the province would almost certainly require the rewriting of the Good Friday Agreement – not something any British politician would want to undertake lightly.

All this adds up to a mighty headache for Michael Gove, who has been charged with drafting a new British Bill of Rights.

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