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The Conservative Party and

Constitutional Reform: Revisiting the


Conservative Dilemma through
Cameron's Bill of Rights
Peter Munce
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Author Afliations
Centre for British Politics, School of Politics, Philosophy and International
Studies, University of Hull, Hull, HU6 7!, U"
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Correspondence$ p%&unce'hull%ac%u(

)e*t Section
Abstract
In +une ,--6 the Conservative Party leader, .avid Ca&eron
&ade a speech to the Centre for Policy Studies% In it he
co&&itted a future Conservative /overn&ent to repeal the
Hu&an i/hts Act 0HA1 and replace it 2ith a British Bill of
i/hts 0BBo1% 3he purpose of this article is to su45ect .avid
Ca&eron6s BBo proposal to closer scrutiny 4y placin/ it in
the 2ider conte*t of Conservative thin(in/ a4out
constitutional refor&% It does this 4y revisitin/ an essay
pu4lished in 789- 4y the late and distin/uished political
scientist, )evil +ohnson, 2here he e*plored so&e of the core
dile&&as for Conservatives that arise 2hen they :nd
the&selves in the position of prota/onists for constitutional
refor& in Britain% It is ar/ued in this article that +ohnson6s
ori/inal essay offers a useful analytical lens throu/h 2hich
to consider further .avid Ca&eron6s proposal to replace the
HA 2ith a BBo% 3he central ar/u&ent of the article is that
Ca&eron6s approach to addressin/ Conservative concerns
a4out hu&an ri/hts la2 in Britain 4y advocatin/ the repeal
of the HA and replacin/ it 2ith a BBo is inconsistent 2ith
&any of the (ey the&es of a /enerally orthodo*
conservative approach to constitutional refor&%
Previous Section
)e*t Section
1. Introduction
Before the Hu&an i/hts Act 0HA1 2as passed in 7889 as
part of the ;a4our Party6s pac(a/e of constitutional refor&s,
the U", it is ar/ued, 2as /enerally thou/ht to 4e an
<inhospita4le environ&ent for the develop&ent of a ri/hts
revolution= 0>pp, 7889, p% 7771% Britain6s political
constitution, 2here the po2er of /overn&ent 2as
constrained lar/ely 4y political &eans rather than 4y for&al
le/al processes, 2as constructed on the .iceyean foundation
of parlia&entary soverei/nty and respect for the rule of la2%
3he U" also had a conservative 5udicial culture, 2hich
esche2ed 5udicial activis& in la2 &a(in/ in favour of
deference to the le/islature, and a political culture that had
not a4sor4ed ri/hts discourse in the sa&e 2ays as other
countries% 3a(en to/ether these factors could 4e considered
as si/nposts in a constitutional 5ourney that 2ould point
Britain in a di?erent direction to other Co&&on2ealth
nations such as Canada and )e2 @ealand and the ne2ly
for&ed states that e&er/ed after the fall of co&&unis& and
the spread of de&ocracy in >astern >urope 2ho had all, in
one for& or another, enacted )ational Charters of i/hts to
provide for either constitutional or statutory protection of
hu&an ri/hts% Ho2ever, and the story is 2ell (no2n, Britain
4eca&e part of this /lo4al pheno&enon (no2n as the ri/hts
revolution 2hen the HA too( e?ect on , Acto4er ,---
incorporatin/ into do&estic U" la2 the ri/hts contained in
the >uropean Convention of Hu&an i/hts 0>CH1% 3hese
develop&ents have 4een so si/ni:cant that accordin/ to one
scholar the HA represents <the cornerstone of the ne2
British Constitution= 0Bo/danor, ,--8, p% 6,1%
Ho2ever, since 7887 si/ni:cant voices 2ithin the
Conservative Party have e*pressed unease 2ith Britain6s
ri/hts revolution to the e*tent that its ne2 leader, of 5ust
over si* &onths, .avid Ca&eron in +une ,--6 &ade a
speech to the Centre for Policy Studies 0CPS speech1 2here
he outlined ho2 a future Conservative /overn&ent 2ould
consider repealin/ the HA and replacin/ it 2ith a BBo% 3he
purpose of this article is to su45ect .avid Ca&eron6s BBo
proposal to closer scrutiny 4y placin/ it in the 2ider conte*t
of conservative thin(in/ a4out constitutional refor&% It does
this 4y revisitin/ an essay pu4lished in 789- 4y the late and
distin/uished political scientist, )evil +ohnson, 2here he
e*plored so&e of the core dile&&as that arise for the
Conservative Party 2hen they :nd the&selves in the position
of prota/onists for constitutional refor& in Britain% It is
ar/ued in this article that +ohnson6s ori/inal essay offers a
useful analytical lens throu/h 2hich to consider further
.avid Ca&eron6s proposal to replace the HA 2ith a BBo%
Bhen conservatives :nd the&selves in the position of
proposin/ refor& to an aspect of the constitution t2o
Cuestions &ust 4e as(ed% Dirst, to 2hat e*tent does the
radicalis& of a proposal for constitutional refor& 4rin/ itself
into tension 2ith traditional conservative approaches to
constitutional refor&E Secondly, to 2hat e*tent are
proposals for constitutional refor& constructed on a4stract
principles rather than on the concrete circu&stances of
social, cultural and political life in the 2orld as it isE 3he
intention of this article is to provide so&e ans2ers to these
Cuestions throu/h the case of Ca&eron6s BBo proposal%
3he central ar/u&ent of the article is that Ca&eron6s
approach to addressin/ Conservative concerns a4out hu&an
ri/hts la2 in Britain 4y advocatin/ the repeal of the HA and
replacin/ it 2ith a BBo is inconsistent 2ith &any of the (ey
the&es of a /enerally orthodo* conservative approach to
constitutional refor&% Ulti&ately, it ar/ues that Ca&eron6s
Bill of i/hts proposal is profoundly unconservative and
offers no /uarantee that it can solve the pro4le&s
Conservatives have identi:ed 2ith the HA%
It is 2orth notin/ at the outset that this article 2ill not
e*plore either the speci:c su4stance of 2hat that ne2 BBo
&i/ht containF its relationship 2ith the >CH or the 2ider
politics 4ehind the HA and BBo de4ate% Instead, it 2ill
focus on an alternative aspect of the de4ate and e*plore
Ca&eron6s BBo proposal fro& the perspective of
conservative thin(in/ a4out the constitution% In doin/ so it is
intended to &a(e a contri4ution to2ards the rather thin
a&ount of acade&ic literature on the Conservative Party
and the constitution 0+ohnson, 789-F Graha& and Prosser,
7898F Burch and Holliday, 788,F )orton, ,--HF Dlinders,
,--8c1% 3his article proceeds in the follo2in/ 2ay% Dirst, it
4e/ins 4y e*a&inin/ the ideational conte*t 4ehind
Ca&eron6s BBo proposal throu/h consideration of t2o
Cuestions$ 2hat does a conservative approach to
constitutional refor& loo( li(e and ho2 did the Conservative
Party respond to )e2 ;a4our6s constitutional refor&sE
Secondly, it 2ill e*a&ine the political conte*t 4ehind the
pled/e that Ca&eron &ade to repeal the HA and replace it
2ith a BBo 4y outlinin/ ho2 Conservatives have responded
to the HA since it :rst too( e?ect 4efore, :nally, e*plorin/
the central ar/u&ent of this article that Ca&eron6s BBo
proposal neatly illustrates the dile&&a facin/ Conservatives
2hen they :nd the&selves as intentional advocates for
constitutional refor& and that, ulti&ately, it is profoundly
unconservative%
Previous Section
)e*t Section
2. Conservatives and the constitution
>*plorin/ the tradition of conservative political thou/ht
a4out the constitution and constitutional refor& that
Ca&eron inherits is essential for understandin/ the
ideational conte*t 4ehind Ca&eron6s BBo proposal% As one
pu4lic la2 scholar ar/ues, <there is no neutral lan/ua/e of
pu4lic la2% Be can understand 2hat a 2riter is sayin/ only if
2e understand the political tradition 2ithin 2hich the 2riter
2or(s= 0;ou/hlin, 788,, p% ,I-1% In other 2ords, it is only 4y
understandin/ the tradition of thin(in/ a4out approaches to
constitutional refor& 2ithin conservatis& that ena4les us to
assess 2hether Ca&eron6s proposal to repeal the HA and
replace it 2ith a BBo runs counter to an orthodo*
conservative approach to constitutional refor&% 3his section
considers the ideational conte*t 4y :rst e*plorin/ 2ider
conservative thou/ht a4out constitutional refor& and ho2
the Conservatives responded to )e2 ;a4our6s constitutional
refor&s%
2.1 The Conservative dilemma: continuity vs. change
3he articulation of /rand visions for the U"6s constitution has
4een a rare occurrence in British politics% Instead,
constitutional de4ate in the U" has lar/ely 4een
characterised 4y the pra/&atic en/a/e&ent of politicians
and political parties 2ith Cuestions of constitutional refor&
0Prosser, 78861% 3his tradition of <pra/&atic e&piricis&=
0JcCrudden, ,--K, p% ,,71 has &eant that &any politicians
fro& across the ideolo/ical and party political spectru& have
historically chosen to address constitutional Cuestions on the
4asis of 2hat the constitution is, rather than 2hat it could
4e% 3he essentially political character of the U"6s
constitution is a fa&iliar the&e in discussions a4out the
British constitution 0Grifth, 7878F 3o&(ins, ,--HF Bella&y,
,--7, ,-77F Gee, ,--9F Gee and Be44er, ,-7-1% In the
i&&ediate postL2ar era the constitution 2as lar/ely
accepted as a fait aco&pli in British politics 2ith very fe2
prota/onists callin/ for constitutional chan/e% As Philip
)orton hi/hli/hts, <for &ost of the t2entieth Century,
Conservatives 2ere co&forta4le in defendin/ the
constitution= 0)orton, ,--H, p% 871 and to a lar/e e*tent the
political consensus in the i&&ediate postL2ar period in
support of the constitutional status Cuo suited the
Conservative Party% )ot only did it spea( to their underlyin/
3ory philosophy of scepticis& a4out /rand sche&es to
re&a(e the 2orld 4ut also &eant there 2as a conver/ence
4et2een Conservative approaches to the issue of
constitutional refor& and to the nature of the constitution
itself%
3he orthodo* approach of the Conservative Party to
constitutional refor& can 4e descri4ed as evolutionary% It is
heavily inMuenced 4y Bur(ean philosophyNpreferrin/
evolutionary develop&ent to radical departures fro& 2hat
has /one 4efore% 3he Conservatives, /enerally, have not
4een hostile to constitutional chan/eF it is 5ust that they
have preferred this to 4e evolutionary rather than
revolutionary% As )orton notes, <the fact that it is
evolutionary rather than static &eans that it ad&its of the
&eans of chan/e% Conservatives are 2ith Bur(e in 4elievin/
that a state 2ithout the &eans of so&e chan/e is 2ithout
the &eans of its o2n conservation= 0)orton, ,--H, p% 8H1%
Put di?erently, the 3ory disposition 2hen it co&es to
proposals for constitutional refor& should 4e driven 4y
<traditionalis&, or/anicis& and scepticis& 2hich should 4e
distinctive Conservative attitudes in considerin/
constitutional chan/e= 0Patten, 789I, p% 7,1%
3he orthodo* Conservative approach to constitutional
refor&, e&phasisin/ their co&&it&ent to evolutionary
refor&, can 4e seen in these 2ords fro& one of its for&er
Party Chair&en, Brian Ja2hinney, 2ho ar/ued in a pa&phlet
for the Conservative Political Centre that$
OConservative opposition to radical constitutional refor& is
not an arcane attach&ent to the archaic% It is reco/nition
that the e*perience of /enerations, the accu&ulation of
2isdo& and practice over centuries, provide a 4etter and
safer 2ay of safe/uardin/ li4erty than the trendy theories
and instant &odern solutions of la2yers, acade&ics or even,
dare I say it, politicians% Aur constitution has continued to
evolve as the nation has developed% 0Ja2hinney, 7886, p% H1
P
3he dile&&a for the Conservative tradition, 2hen it co&es
to constitutional refor&, is 2hat Philip )orton has descri4ed
as the <inherent conMict 4et2een continuity and chan/e=
0)orton, ,--H, p% 881% In other 2ords once a pro4le& 2ith an
aspect of the constitution has 4een identi:ed, 2hat should
Conservatives do a4out itE 3o 2hat e*tent should
Conservatives e&4race radicalis& and chan/e if that chan/e
is necessary to construct a 4etter constitutional settle&entE
3hese are the Cuestions facin/ Conservatives intent on
repealin/ the HA and replacin/ it 2ith a BBo% As 2ill 4e
discussed in the ne*t section the HA is a pro4le& that
Conservatives have identi:ed 2ith the constitution and as
such they face the dile&&a of 2hat to do a4out it% Indeed,
.avid Ca&eron6s BBo proposal causes a profound dile&&a
for Conservatives 4ecause it /oes to the very heart of this
tension 4et2een continuity and chan/e 2ithin conservative
political thou/ht on constitutional refor&% It 2as precisely
these Cuestions that caused the late political scientist )evil
+ohnson to reMect on the tensions 2ithin conservative
thou/ht 2hen Conservatives :nd the&selves as intentional
advocates of refor&s to the constitution% 3he (ey para/raph
fro& +ohnson6s 0789-1 essay that 2ill assist in the unpac(in/
of this article6s central proposition ar/ues that,
OAs the Conservative constitutional theorist see(s to identify
2hat can 4e restored and ho2, he is driven to solutions
0partial or &ore farLreachin/1 2hich in fact chan/e the
/round on 2hich he stands% 3he 2ouldL4e protector 4eco&es
the innovator, the Conservative ris(s :ndin/ hi&self playin/
the part of radical refor&er /uided 4y a4stract principles%
0789-, p% 7I-1
P
Dro& this it is possi4le to discern t2o ele&ents of +ohnson6s
ar/u&ent that directly pertain to the Bill of i/hts issue and
2hich illustrate neatly the dile&&as for Conservatives 2hen
it co&es to constitutional refor&% Dirst, there is a dile&&a for
conservatives 2hen proposed constitutional refor&s are
4ased upon a set of a4stract principles or ideas, as 2ill 4e
ar/ued is the case 2ith Ca&eron6s BBo proposal,
particularly 2hen there e*ists an aversion 2ithin
conservatis& to2ards the construction of social and political
institutions on the 4asis of a4stract principles and ideas%
Secondly, there is a dile&&a for conservatives 2hen they
4eco&e intentional advocates of constitutional chan/e, as
has happened in proposin/ to replace the HA 2ith a BBo,
particularly 2hen the tradition of conservative thou/ht
a4out constitutional refor& stresses the i&portance of an
evolutionary, incre&ental and or/anic approach to chan/e%
2.2 Conservatives and Blair's constitutional reforms
Aver the past K- years or so the historic reverence for
Britain6s constitution has 4een challen/ed and the 4road
crossLparty consensus in favour of the constitutional status
Cuo has 4e/un to fra/&ent% Its unravellin/ 4e/an in the
787-s 2ith the call for a 2ritten constitution and a Bill of
i/hts to address 2hat the for&er Conservative ;ord
Chancellor, ;ord Hailsha& fa&ously ar/ued 2as Britain6s
<elective dictatorship= and the /ro2in/ unease e*pressed
that Britain6s representative institutions 2ere inadeCuate
and that the po2er of Parlia&ent 2as 4eco&in/ increasin/ly
e&asculated 4y the /overn&ent of the day% 3he &ove&ent
for constitutional refor& /ained &o&entu& in the 789-s and
early 788-s 2ith the for&ation of or/anisations such as
Charter 99 ca&pai/nin/ for constitutional refor&% 3his
cul&inated in the early to &idL788-s 2ith the adoption 4y
the ;a4our Party of a nu&4er of proposals for constitutional
refor& that 2ould 4e introduced after the 7887 /eneral
election% Dro& 7887Q,--H the ;a4our Party introduced a
series of refor&s that altered Britain6s constitutional
landscape$ devolution to Scotland and Bales, House of
Lords refor& and incorporation of the >CH into U"
do&estic la2 throu/h the HAF freedo& of infor&ation
le/islation and the creation of a ne2 Supre&e Court that
2ould assu&e the 5udicial functions previously carried out 4y
the House of Lords%
3he i&pact and nature of 4oth )e2 ;a4our6s constitutional
refor&s 0>vans, ,--IF HaRell et al%, ,--IF Dlinders, ,--H1 and
the chan/es in Britain6s constitution that have occurred over
a lon/er period since the 787-s 0e%/% Bic(s, ,--6F Bo/danor,
,--8F Dlinders, ,--8aF "in/, ,--8F Jc;ean, ,--81 have 4een
su45ect to a nu&4er of acade&ic co&&entaries% 3his
scholarship is 4roadly in a/ree&ent on the o4vious fact that
the constitution is di?erent fro& 2hat it 2as 4efore )e2
;a4our entered of:ce% Ho2ever, 2hat it does disa/ree on is
the e*tent of that chan/e 0Ga&4le, ,--61% Dor e*a&ple, on
the one hand acade&ics such as .avid JarCuand ar/ue that
Blair6s constitutional &easures <heralded a constitutional
revolution= 0JarCuand, ,---, p% ,681 2hilst Bo/danor ar/ues
that <Blair6s /overn&ent 2ill 4e pri&arily re&e&4ered for
the &assive and radical constitutional chan/es it introduced=
0Bo/danor, ,-7-, p% HI1% An the other hand, scholars such as
Jatthe2 Dlinders ar/ue that the cu&ulative e?ect of )e2
;a4our6s refor&s is one of <&odi:ed &a5oritarianis&=
0Dlinders, ,--H, ,--8a1 in the sense that 2hilst constitutional
refor&s 2ere introduced that altered the purely &a5oritarian
nature of the Best&inster &odel of de&ocracy it &ust 4e
re&e&4ered that those refor&s <2ere desi/ned and
i&ple&ented 2ithin the contours of 2hat re&ains a po2er
hoardin/ de&ocracy= 0Dlinders, ,--8a, p% ,971% Accordin/ to
Dlinders, )e2 ;a4our6s approach to constitutional refor&
should 4e considered as <4iLconstitutional= applyin/ <di?erent
de&ocratic for&s or &odels 4ased upon distinct
funda&ental principles at di?erent levels of /overnance=
0Dlinders and Curry, ,--9, p% 77I1% Dor Dlinders this &eans
that at a national level a &odi:ed version of the
Best&inster &odel 2as &aintained, 2hilst at su4national
and local levels a &ore consensual &ode of de&ocracy 2as
introduced%
Ane of the si/ni:cant criticis&s &ade of Blair6s
constitutional refor&s 2as that there 2as no /uidin/
philosophy or constitutional telos 4ehind the refor&s
0)orton, ,--7F Dlinders, ,--8a,41% As )orton ar/ues 3ony
Blair <set off 2ith an a/enda in 2hich he had little interest,
he /enerated a set of constitutional chan/es that do not
han/ to/ether, and he 4eCueaths to his successor an
a4sence of any coherent vie2 of 2hat type of constitution is
appropriate for the United "in/do&= 0)orton, ,--7, p% ,7-1%
Dlinders has descri4ed this situation as one of <constitutional
ano&ie= 2here refor&s are introduced <4ereft of any
underlyin/ lo/ic or e*plicit principles co&4ined 2ith the
ina4ility to adopt a strate/ic approach that is sensitive to the
interrelated nature of any constitutional con:/uration=
0Dlinders, ,--84, p% I9H1% Blair6s lac( of a constitutional telos
can 4e attri4uted to 4oth the le/acy of political
constitutionalis& in Britain 4ut also the fact that, as
3hea(ston notes, <constitutional issues are only infreCuently
on the political a/enda= of the Pri&e Jinister of the day
03hea(ston, ,--H, p% 771% Bith the e*ception of Gordon
Bro2n and to a lesser e*tent, Harold Bilson, postL2ar British
Pri&e Jinisters have /enerally sho2ed little interest in
constitutional refor& or constitutional &atters%
Si&ilarly, there is an underdeveloped sense of 2hat .avid
Ca&eron6s underlyin/ constitutional telos is or 2hether, in
fact, he has a /uidin/ constitutional philosophy at all% 3hree
years into his ti&e as Pri&e Jinister one has very little sense
of 2hat his approach to constitutional &atters is% Indeed, to
date, it appears that the Pri&e Jinister6s a/enda on
constitutional refor& has 4een driven &ore 4y the political
constraints and considerations of a Coalition /overn&ent
2ith the ;i4eral .e&ocrats and 4y the de&ands of his
4ac(4ench JPs than 4y principle or a /uidin/ constitutional
telos% In &any 2ays the Conservatives proposal to replace
the HA 2ith a BBo could 4e considered as &erely a
sy&pto& of the condition that Dlinders descri4es as
<constitutional ano&ie= in the sense that it is unclear
2hether Ca&eron6s BBo proposal :ts 2ithin any 2ider
strate/ic constitutional thin(in/ 2ithin the Conservative
Party a4out the nature of /overnance in Britain in the ,7st
Century% It 2ould appear, to date, that .avid Ca&eron &ay
vie2 the Conservatives perceived pro4le&s 2ith the HA as,
:rst and fore&ost, a political pro4le& to 4e addressed rather
than as a funda&ental constitutional issue% 3his is not to say
that addressin/ constitutional issues such as the relationship
4et2een the three 4ranches of po2er, the politicisation of
5ud/es and parlia&entary soverei/nty have not 4een
&entioned in speeches 4y hi& and other senior Conservative
:/ures 2ho have considered this issue 4ut that the political
Cuestions of party political &ana/e&ent and political
positionin/ appear to 4e Ca&eron6s overridin/ concerns%
Jany 2ithin the Conservative Party reacted 2ith /reat
hostility to 2hat they ar/ued 2as the <constitutional
vandalis&= 0Conservative Party, 3, ,-7-1 of the )e2 ;a4our
years% Ho2ever, the reality 2as that as stated a4ove,
irrespective of one6s vie2 a4out the constitutional chan/es,
the British constitution had chan/ed durin/ )e2 ;a4our6s
ti&e in of:ce% 3he challen/e for Conservatives, as 4oth
Philip )orton 0,--H1 and Jatthe2 Dlinders 0,--8c1 have
previously considered, 2as ho2 a future Conservative
Govern&ent should react to these chan/es% )orton ar/ues
that there 2ere three options for Conservatives to consider$
the reactionary, conservative and radical approach% It is
2orth e*plorin/ these approaches 4rieMy% Dirst, the
reactionary option is one that 2ould 4e least co&forta4le
2ith ;a4our6s constitutional chan/es see(in/ instead to
<return the constitution to the position it 2as in 2hen the
Conservatives 2ere last in of:ce= 0)orton, ,--H, p% 7-61%
Secondly, the conservative option accepts that chan/e has
occurred, so&e of 2hich &i/ht not 4e to the Conservatives6
taste, 4ut that it is 4etter to &ove on, accept the chan/es
and see( to i&prove the constitutional fra&e2or( inherited
throu/h evolutionary, pra/&atic chan/es% Ulti&ately, this
option see(s to conserve <that 2hich e*ists at the ti&e that
the party returns to of:ce= 0)orton, ,--H, p% 7-61% 3hirdly,
the radical option see(s to craft a <ne2 constitutional
settle&ent= on the 4asis that the old constitution is no lon/er
capa4le of perfor&in/ that 2hat is e*pected of it 0)orton,
,--H, p% 7-91%
As early as 7889, the Conservatives 4e/an to reco/nise that,
in practical ter&s, it 2ould 4e e*tre&ely difcult to reverse
&any of )e2 ;a4our6s constitutional refor&s and that to, in
the 2ords of then leader Billia& Ha/ue <return the
constitution to its status Cuo ante 2ould 4e a futile tas(=
0Ha/ue, 78891% 3he Conservative Party have, to a lar/e
e*tent, adopted an essentially conservative approach to the
4ul( of )e2 ;a4our6s constitutional refor&s, acceptin/ the
chan/es and see(in/ to i&prove the& throu/h incre&ental
refor&s 2ithin the 4road fra&e2or( of the 2ay the
constitution is after ;a4our6s refor&s% Ho2ever, one
si/ni:cant area 2here the Conservatives esche2ed this
conservative approach in favour of pursuin/ a &ore radical
a/enda 2as on hu&an ri/hts throu/h Ca&eron6s proposal to
repeal the HA and replace it 2ith a BBo% Ho2ever, 4efore
e*plorin/ this ar/u&ent further, this article no2 turns to
consider the political conte*t to the Conservative6s proposal
throu/h e*a&inin/ ho2 they have en/a/ed 2ith the HA
since its inception%
Previous Section
)e*t Section
3. The Conservative Party and the HRA
Bhen the HA too( e?ect it &eant that for the :rst ti&e U"
citiRens could rely e*plicitly upon their Convention ri/hts in
the do&estic le/al syste&% Section , of the Act reCuires
British courts considerin/ a case connected 2ith a
Convention ri/ht to <ta(e into account any 5ud/e&ent,
decision, declaration or advisory opinion of the >uropean
Court of Hu&an i/hts= 2hilst section I states that
le/islation &ust 4e interpreted so as to /ive e?ect to
Convention ri/hts% In e?ect, this &eans that the courts &ust
strive for a ConventionNco&pati4le interpretation, not an
interpretation that &ost closely reMects Parlia&ent6s intent%7
3he Conservative Party have had an uneasy relationship 2ith
the HA since the draft hu&an ri/hts 4ill 2as :rst de4ated in
Parlia&ent% 3he :rst opportunity that Parlia&ent had to
de4ate the draft Bill 2as on second readin/ in the House of
Lords in )ove&4er 7887% Bet2een then and the present day
conte*t of Coalition /overn&ent it is possi4le to discern four
overlappin/ phases to the Conservative Party6s response to
the HA$ initial opposition, ine?ectual opposition, purposeful
opposition and constrained opposition% 3his article 2ill no2
turn to consider, 4rieMy, each of these phases and outline
the &ain characteristics of the Conservative response durin/
this period%
3.1 nitial o!!osition
3he :rst phase, initial opposition, 4et2een 7886 and ,--7
overlaps 4et2een the tenure of +ohn Ja5or and Billia&
Ha/ue as party leader and the 7887 /eneral election% 3he
Conservative Party6s opposition to the ;a4our Party6s policy
of incorporation of the >CH 2as &ade clear 4y the then
Pri&e Jinister, +ohn Ja5or 2ho ar/ued that pursuin/ such a
policy 2ould si/ni:cantly under&ine Parlia&entary
soverei/nty and unnecessarily involve 5ud/es in the political
process$
OI (no2 that so&e people ar/ue that the freedo& of the
individual 2ould 4e 4etter protected if Britain had a 2ritten
constitution or a ne2 4ill of ri/hts, settin/ out a list of
funda&ental ri/hts% I don6t a/ree% I si&ply don6t 4elieve that
you could enshrine in a sin/le piece of le/islation the British
conception of freedo& S And 2e have no need for a 4ill of
ri/hts 4ecause 2e have freedo&% Any atte&pt to de:ne our
freedo&s 4y statute 2ould di&inish Parlia&ent6s historic role
as the defender of individual freedo&s% +ud/es 2ould
4eco&e the /uardians of a 2ritten constitution or 4ill of
ri/hts, and the supre&acy of the elected representatives of
the people in Parlia&ent 2ould Q for the :rst ti&e since the
77th Century Q 4e eroded% Is that really the 2ay 2e 2ant to
/oE I thin( not% 0Ja5or, 78861
P
Conservative responses durin/ this period 2ere do&inated
4y a profound concern over the transfer of po2er fro& the
le/islature to the 5udiciary% In the de4ates in Parlia&ent on
second readin/ of the ;a4our /overn&ent6s Hu&an i/hts
Bill Conservative Party contri4utions relied heavily on a
<court sceptic= narrative to e*press opposition to the
le/islation% .urin/ the le/islation6s second readin/ in the
House of Co&&ons, Sir Brian Ja2hinney, the
Conservative6s shado2 Ho&e Secretary outlined
Conservative opposition to the Bill ar/uin/ that,
OBhether intentional or not, the Bill is a4out di&inishin/ the
soverei/nty of Parlia&entF it is a4out 2ea(enin/ our
de&ocracy and chan/in/ funda&entally the 4alance of the
separation of po2ers 4et2een the >*ecutive, the le/islature
and the 5udiciary% 3he result 2ill 4e a further increase in the
po2er of the >*ecutive, the di&inution of Parlia&ent and
the politicisation of the 5udiciary% 0HC .e4 76 De4ruary 7889
vol I-6 cc78I1
P
<Court sceptic= ar/u&ents provide a useful analytical
fra&e2or( 2ith 2hich to consider Conservative responses
durin/ this period% 3he ter& 2as :rst introduced into the
literature 4y the Canadian political scientist +anet Hie4ert in
an article that appeared in the Jodern ;a2 evie2 0Hie4ert,
,--61 to su&&arise a /ro2in/ 4ody of acade&ic scholarship
e*pressin/ scepticis& a4out the constitutional entrench&ent
of individual ri/hts in the for& of a national charter of ri/hts
0e%/% Baldron, 788I, 7888F 3o&(ins, ,--HF Bella&y, ,--71%
Dor Hie4ert a court sceptic is so&eone 2ho accepts <the
le/iti&acy of individual ri/hts 4ut dou4tTsU the prudence of
/ivin/ courts :nal responsi4ility for interpretin/ and
resolvin/ political disa/ree&ents involvin/ ri/hts, for a ran/e
of reasons such as de&ocratic concerns or institutional
co&petence= 0Hie4ert, ,--6, p% 7-1% 3his <court sceptic=
narrative 0Hie4ert, ,--61 is /rounded in a distinctly
Conservative vie2 of the British constitution of support for
2hat Jatthe2 Dlinders calls <&a5oritarian notions of
de&ocracy= 0,--8c, p% ,K81 that 2ould include stron/
support for parlia&entary soverei/nty, defence of the
Best&inster &odel of de&ocracy and Cuestions the
appropriateness of resolvin/ disputes a4out ri/hts in the
courts%
3.2 neffectual o!!osition
3he second phase in the Conservative response to the HA,
ine?ectual opposition, ca&e 2hen Iain .uncan S&ith and
su4seCuently Jichael Ho2ard 2ere leaders of the party%
.urin/ this period Conservative discontent 2ith the HA 2as
constrained 4y a political party stru//lin/ to connect 2ith
the pu4lic in the after&ath of another historic defeat in the
,--7 /eneral election and, despite their dissatisfaction 2ith
the HA, the lac( of any credi4le or 2ell thou/ht out
alternative to it% Durther&ore, the developin/ Conservative
critiCue shifted fro& 2hat 2ere previously constitutional
ar/u&ents a/ainst the HA to concerns a4out its i&pact on
other issues% 3his 2as driven partly as a response to the
chan/in/ security and counter terrorist conte*t 4rou/ht
a4out 4y the attac(s of 77 Septe&4er 4ut also the
Conservative6s response to /ro2in/ political pressures and
unease in the Conservative 4ac(4enches a4out the HA%
Dirst, there 2as a /ro2in/ concern a4out the e?ect of the
HA on national security% Iain .uncan S&ith6s :rst
conference speech as party leader echoed these concerns
a4out the HA$
O3he Hu&an i/hts Act passed t2o years a/o is provin/ an
o4stacle to protectin/ the lives of British citiRens% Bhen 2e
cannot deport those 2ho threaten the life of a British Pri&e
Jinister and pro&ote terroris& fro& the safety of our o2n
country, 2hen 2e cannot refuse entry to terrorist suspects
on the /rounds of national security, 2hen 2e cannot even
e*tradite people accused of violence a/ainst A&erica to the
United States, then it is ti&e to chan/e the la2%, 0.uncanL
S&ith, ,--71
P
Secondly, there 2as a Conservative perception that
i&4alances in the cri&inal 5ustice syste& e*isted that
favoured the ri/hts of perpetrators of cri&e over victi&s and
a /ro2in/ ri/hts culture that <re2ards co&pensationLchasers
and cri&inal trou4le&a(ers= 0.avis, ,--K1% As the then
Shado2 Ho&e Secretary .avid .avis ar/ued,
O3he Hu&an i/hts Act has spa2ned too &any spurious
ri/hts S it has fuelled co&pensation out of all sense and
proportion% And all too often, it see&s to /ive cri&inals &ore
ri/hts than the victi&s of cri&e% 3his has to stop S our
society needs &ore discipline, decent values and respect%
0Guardian, ,K Au/ust ,--K1
P
Under Jichael Ho2ard as Conservative leader the
Conservatives co&&itted to initiate a revie2 :rst 4efore
possi4le repeal% As Ho2ard ar/ued in a speech 4efore the
,--H election$
O3hat6s 2hy the Conservative Party is revie2in/ Jr Blair6s
Hu&an i/hts Act% And if it can6t 4e i&proved it 2ill 4e
scrapped% I a& deter&ined to ensure that the ri/hts of those
2ho play 4y the rules are respected, that the scales of
5ustice are re4alanced and that fair play returns to the heart
of the 5ustice syste&%I
P
3.3 Pur!oseful o!!osition
3hese policy positions provided the conte*t for .avid
Ca&eron6s announce&ent in +une ,--6 that he 2ould repeal
the HA, 4efore a revie2, and replace it 2ith a BBo% 3he
third phase, accordin/ly, in Conservative policy to2ards the
HA could 4e descri4ed as purposeful opposition% Ca&eron6s
speech to the CPS 2as his :rst si/ni:cant intervention on the
hu&an ri/hts de4ate% His speech raised fa&iliar the&es
a4out the ne/ative i&pact the HA had had on the cri&inal
5ustice syste& and in national security issues particularly
re/ardin/ the deportation of terrorist suspects and the
restrictions that Stras4our/ 5urisprudence has placed on
)ational Govern&ents% It also raised the issue of havin/ a
ho&e /ro2n Bill of i/hts that 2ould address the sense of
alienation felt 4y the pu4lic that the HA so&eho2 reMected
the forei/n i&position of ri/hts and li4erties$
OSo I 4elieve that the ti&e has no2 co&e for a ne2 solution
that protects li4erties in this country that is ho&eL/ro2n and
sensitive to Britain6s le/al inheritance that ena4les people to
feel they have o2nership of their ri/hts and one 2hich at the
sa&e ti&e ena4les a British Ho&e Secretary to stri(e a
co&&onLsense 4alance 4et2een civil li4erties and the
protection of pu4lic security% 0Ca&eron, ,--61
P
Dour o4servations are 2orth hi/hli/htin/ fro& the speech%
Dirst, Ca&eron ac(no2led/ed that <so&e of the direct
conseCuences of the HA have 4een positive ones=
0Ca&eron, ,--61% He pointed to so&e of the case la2 that
had 4een developed as <i&portant precedents that 2e can
all 2elco&e=% Secondly, it re5ected the notion of U"
2ithdra2al fro& the >CH on the 4asis that it 2ould <send a
&essa/e to all those countries that 2e encoura/ed to si/n
up to it that you cannot have ri/hts and security at the sa&e
ti&e= 0Ca&eron, ,--61% 3his co&&it&ent fro& Ca&eron is
an i&portant reference point in the Conservative Party6s
internal de4ate especially 2hen set a/ainst the profound
concern e*pressed 4y Conservative politicians a4out the
U"6s relationship 2ith the >CH and the inMuence of the
Stras4our/ Court in British politics fro& ,-77 on2ards%
3hirdly, it proposed the creation of an internal Conservative
Party Bill of i/hts Co&&ission to ta(e the 2or( of creatin/
a <ho&e /ro2n Bill of i/hts= for2ard% As the Shado2
Attorney General .o&inic Grieve ar/ued,
O3his is a &a5or enterprise, 2hich 2ill not 4e rushed, and
2hich 2ill involve de4ate 4oth 2ithin and outside the party
to try and achieve consensus a4out 2hat a Bill of i/hts
should contain% It is intended that the Bill of i/hts 2ill 4e
co&pati4le 2ith the >uropean Convention on Hu&an i/hts
0>CH1 4ut 2ill 4oth de:ne ri/hts &ore clearly, and protect
core civil li4erties, 2hich are i&portant to our country
0Grieve, ,--71%
P
3he Co&&ission co&prised seven &e&4ers 4ut did not
produce a :nal report% It &i/ht 4e thou/ht that the 2or( of
the Co&&ission 2ould have 4een inte/rated 2ith the
Conservative6s de&ocracy tas(force esta4lished 4y Ca&eron
in ,--6, under the Chair&anship of "en Clar(e JP, as one of
si* policy revie2s esta4lished after he 4eca&e party leader
4ut there does not appear to have 4een any coordination
4et2een 4oth Co&&issions 2ho see&ed to 4e 2or(in/ in
parallel rather than to/ether% Durther&ore, it 2as "en Clar(e,
the chair of the party6s policy revie2 on /overnance issues
2ho 2as one of the &ost vocal critics of Ca&eron6s BBo
plan dis&issin/ the idea as <*enopho4ic and le/al nonsense=
03he Independent, ,9 +une ,--61%K Dourthly, it is 2orth
notin/ that in ter&s of Ca&eron6s &odernisation strate/y of
presentin/ the Conservative Party under his leadership as
so&ethin/ di?erent fro& 2hat had preceded hi& since the
landslide electoral defeat in 7887 Ca&eron had to 4e careful,
in ar/uin/ a/ainst the HA, that he did not sound illi4eral,
out of touch and pursuin/ another pet 3ory pro5ect that
o4sessed his 4ac(4enches 4ut not the pu4lic% .urin/ this
period, the de4ate 2ithin the Conservative Party a4out the
HA appeared to 4e at its &ost purposeful than at any other
ti&e since the HA too( e?ect in Acto4er ,---%
3." Constrained o!!osition
Dinally, as the third phase of purposeful opposition ca&e to
an end 2ith the for&ation of the Coalition Govern&ent
4et2een the Conservatives and ;i4eral .e&ocrats the :nal
phase, 4et2een ,-7- and the ne*t /eneral election, can 4e
descri4ed as constrained opposition% 3he Conservative Party
and ;i4eral .e&ocrats entered the ,-7- General >lection
2ith very di?erent policies to2ards the HA% Bhilst the
Conservatives 2ere co&&itted to replacin/ it 2ith a BBo,
their Coalition partners, the ;i4eral .e&ocrats 2ere eCually
co&&itted to protectin/ the HA and to defendin/ its
political le/acy% As a result of the Coalition A/ree&ent a
co&pro&ise 2as found on the HA throu/h the creation of a
Bill of i/hts Co&&ission esta4lished 4y the Govern&ent in
Jarch ,-77% It 2as esta4lished under the leadership of Sir
;ei/h ;e2is, a retired senior Civil Servant, and, consisted, of
ei/ht part ti&e Co&&issioners% 3he purpose of this
Co&&ission 2as to investi/ate, <the creation of a BBo that
incorporates and 4uilds on all our o4li/ations under the
>uropean Convention on Hu&an i/hts= 0HJ Govern&ent,
,-7-, p% 91% 3he clear intention of the Coalition partners in
esta4lishin/ the Co&&ission 2as to put the issue of the HA
and Britain6s relationship 2ith the >CH into cold stora/e
until after the ne*t /eneral election and navi/ate a course of
least resistance until 4oth parties 2ere at /reater li4erty to
ar/ue for their respective distinctive positions on the HA
and the protection of hu&an ri/hts in the U"%
3he Co&&ission 2as, ar/ua4ly, destined for stale&ate fro&
its inception as its co&position, <&erely reMected the
dividin/ lines 2ithin the coalition on the HA 2ith its
&e&4ership eCually divided 4et2een those 2ho 2anted to
(eep it and those 2ho 2anted to repeal it= 0Junce, ,-7,, p%
6,1% Accordin/ to its Chair, the retired senior civil servant Sir
;ei/h ;e2is, it represented <the classic response to a political
i&passe= 0;e2is, ,-7I1% 3he &ain pro4le& 2ith the
Co&&ission 2as that its co&position 2as reMective of the
2ider fault linesH in the Coalition on the HA% Dor ;i4eral
.e&ocrats the fact that a Co&&ission 2as esta4lished to
4uild upon the foundations of the >CH should 4e
considered a si/ni:cant victory for li4eral de&ocrats 0HaRell
and Voun/, ,-7,1% Dor so&e Conservative JPs, ho2ever, the
fact that Britain6s relationship 2ith the Convention 2as not
2ithin the re&it of the Convention 2as pro4le&atic% In
enterin/ a Coalition 2ith a party so co&&itted in its support
and defence of the HA, Conservative opposition to the HA
2as destined to 4e per&anently constrained for the duration
of the Coalition%
Previous Section
)e*t Section
4. The dilemma of continuity vs. change revisited! Cameron"s #ill of
Rights
Havin/ set out the outline of a conservative narrative
to2ards constitutional chan/e, considered ho2 the
Conservatives responded to Blair6s constitutional refor&s
and e*plored the conte*t 4ehind Ca&eron6s BBo proposal
4y e*a&inin/ the Conservative response to the HA since its
inception this article no2 turns to consider ho2 Ca&eron6s
BBo proposal neatly illustrates the dile&&a for
Conservatives that arise 2hen they :nd the&selves in the
position of prota/onists for constitutional refor& in Britain
and that ulti&ately his BBo proposal is unLconservative%
Dirst, +ohnson hi/hli/hts that, for Conservatives, <political
institutions should not 4e constructed on a4stract principles=
0+ohnson, 789-, p% 7,71% Conservative political thou/ht has
al2ays stressed the i&portance of dealin/ 2ith the 2orld as
it is rather than atte&ptin/ to construct institutions or
constitutional &echanis&s on a4stract, idealist principles% As
+ohnson 2rites, <the criticis& of the appeal to a4stract
principles is consistent 2ith the e&phasis /iven in
conservative thou/ht to the do&inant inMuence of social
4ehaviour and relationships in the co&ple* processes
throu/h 2hich political institutions and practices evolve=
0+ohnson, 789-, p% 7,71% In other 2ords the dile&&a for
Conservatives 2hen it co&es to proposin/ a Bill of i/hts is
the dan/er that its content, desi/n and scope ris(s 4ein/
constructed upon a set of idealised <a4stract principles=
i&posed and not or/anically connected to Britain6s
constitutional order% As )orton ar/ues,
O3here is thus a re5ection of <&echanical secrets6 such as
codi:ed constitutions and Bills of i/hts that are the product
of a particular /eneration% i/hts, to the Conservative, do
not derive fro& such arti:cial and ti&eL4ound contraptions
S ;ife is /iven &eanin/ throu/h for&in/ an inte/ral part of
this livin/ or/anis& and not fro& detached and arti:cial
constructs% 0)orton, ,-7,, p% 7,H1
P
>d&und Bur(e, one of the (ey thin(ers 4ehind
conservative6s evolutionary constitutional thou/ht, ar/ued
that ri/hts could not 4e conceived of in isolation of the
particular traditions, custo&s and ha4its of the 4ody politic%
3herefore 2ithin speci:c and distinct national traditions,
ri/hts 2ould evolve or/anically% 3he radical i&position of
lon/ lists of the ri/hts of &an or in &odern ter&s the
i&position of constitutional charter of ri/hts runs counter to
the type of conservative thin(in/ that stresses the or/anic
evolution of ideas, concepts and practices% Bur(e o4served
that, <Govern&ent is not &ade in virtue of natural ri/hts,
2hich &ay and do e*ist in total independence of itF and e*ist
in &uch /reater clearness, and in a &uch /reater de/ree of
a4stract perfection$ 4ut their a4stract perfection is their
practical defect% By havin/ a ri/ht to everythin/ they 2ant
everythin/= 0Bur(e, ,--8, p% 6-1% A conservative account of
hu&an ri/hts then considers ri/hts not in a4stract isolation
to the particular custo&s, ha4its and traditions of a
particular society 4ut only in li/ht of these circu&stances% It
is also /rounded in a pra/&atic assess&ent a4out 2hether
these ri/hts can 4e actually 4e delivered 4y the 4ody politic%
As Bur(e ar/ued, <2hat is the use of discussin/ a &an6s
a4stract ri/ht to food or &edicineE 3he Cuestion is upon the
&ethod of procurin/ and ad&inisterin/ the&% In that
deli4eration I shall al2ays advise to call in the aid of the
far&er and the physician, rather than the professor of
&etaphysics= 0Bur(e, ,--8, p% 671% Jany of the speci:c
ri/hts contained in the HA are uncontroversial in and of
the&selves reMectin/, as they lar/ely do, the historical civil
and political li4erties and freedo&s protected 4y the
co&&on la2 in Britain% As Conservative JP, +esse )or&an
ar/ues,
O3he Hu&an i/hts Act thus operates in a peculiarly
conservative 2ay% It confers no ne2 ri/ht 2hich has not
already 4een lon/ reco/nised in co&&on la2, or to 2hich
the U" has not already lon/ 4een co&&itted% 0)or&an and
A4orne, ,-7-, p% ,61
P
Ho2ever, for the Conservatives to repeal the HA and start
a/ain 2ith a ne2 list of ri/hts, &any of 2hich &ay still
&aintain that connection to the ri/hts and li4erties already
found in the co&&on la2, is to ris( a4straction and to
conceive of an entirely ne2 political institution that is an
i&position rather than an or/anic evolution%
3he Bur(ean approach to chan/e, as has 4een &entioned, is
evolutionary ac(no2led/in/ and e&4racin/ chan/e 2hen it
is necessary to conserve 4ut 2hat happens 2hen the
conservative is faced 2ith an institution or constitutional
practice that, as they see it, is 4eyond repair and 2hose
continued e*istence, for conservatives, threatens the entire
edi:ce of the constitutional architectureE In &any 2ays this
is the scenario the Conservatives have presented 2ith their
proposal to repeal the HA and replace it 2ith a BBo%
Accordin/ to the Conservatives the introduction of the HA
has upset the 4alance in Britain6s historic constitution
4et2een the le/islature and the 5udiciary% As )ic( Her4ert,
spea(in/ as Shado2 +ustice Secretary in ,--9, ar/ued
OAne of the /reatest i&pacts of the Act has 4een the
under&inin/ of Parlia&entary soverei/nty S to tolerate Q let
alone cele4rate Q the erosion of Parlia&entary soverei/nty is
to i/nore the fact that Parlia&ent has 4een a staunch
defender of ri/hts in this country% And it poses a challen/e
for all de&ocrats$ 4y losin/ faith in de&ocracy li(e this, are
2e not also losin/ faith in the people 2hose ri/hts 2e clai&
to defendE 0Her4ert, ,--91
P
In other 2ords, part of the Conservative6s narrative on
repealin/ the HA is that tin(erin/ round the ed/es is not
enou/h, the HA has done too &uch da&a/e to 4e refor&ed
or &odi:ed 4ut rather instead, radical sur/ery is reCuired to
deal 2ith its ne/ative e?ect on the constitution% Ho2ever, as
)evil +ohnson re&inds us, <the intention e*pressed in
Conservative constitutional ar/u&ent is /enerally not
radically to chan/e or redesi/n the constitution 4ut to see(
its restoration or reinvi/oration= 0+ohnson, 789-, p% 7,81%
Bhilst Ca&eron in proposin/ to repeal the HA and 4e/in
a/ain 2ith a ne2 BBo has the stated ai& of see(in/ to
restore and reinvi/orate Britain6s constitution it is,
nevertheless, a farLreachin/ proposal to redesi/n 2hat has
4eco&e an i&portant aspect of Britain6s constitution%
3his leads to the second of ele&ent of +ohnson6s ar/u&ent
relevant to this article that conservative6s lac( an <adeCuate
e*planation of deli4erate chan/e= 2hen it co&es to
constitutional refor& 0+ohnson, 789-, p% 7,71% In other 2ords
2hat happens 2hen Conservatives :nd the&selves, as the
a/ents pressin/ for constitutional chan/e 2hen the tradition
of conservative political thou/ht on the constitution 2ould
su//est other2iseE As has 4een esta4lished this tradition of
thou/ht stressed evolution, rather than revolution% Ho2ever,
in proposin/ to replace the HA 2ith a BBo Ca&eron has
found hi&self in the position of advocatin/ <deli4erate
chan/e= to an ele&ent of Britain6s constitution% It is ar/ued,
therefore, that Ca&eron6s BBo proposal is an act of
deli4erate constitutional chan/e that sits uneasy 2ith
conservative thin(in/ on constitutional refor&%
It is i&portant to consider 2hy and ho2 Ca&eron6s proposal
to replace the HA 2ith a BBo is such a radical proposal for
constitutional refor&% 3o do so, :rst, it is necessary, to return
to )orton6s threeLfold typolo/y for e*plorin/ ho2
Conservatives could reply to )e2 ;a4our6s constitutional
refor& 0reactionary, conservative, radical1, to understand
ho2 Ca&eron6s BBo proposal can 4e considered as such a
radical proposal% Dirst, a reactionary approach to the HA, 4y
Conservatives, 2ould repeal the HA and not replace it% It
2ould return Britain6s constitutional order to the 2ay it 2as
4efore the HA 2as passed% Secondly, a conservative
approach 2ould accept the HA is part of Britain6s
constitutional order, for 4etter or for 2orse, (eep it on the
Statute 4oo(s and 2or( to refor& and i&prove the operation
of the HA% 3hirdly, the radical approach to the HA 2ould
ar/ue that the HA has da&a/ed Britain6s constitutional
order 4eyond repair and that a ne2 syste& or institution is
reCuired% It is the third narrative that Conservatives have
pursued 2ith rene2ed vi/our since .avid Ca&eron 4eca&e
leader of the Conservative Party%
3he second issue to consider is that, at the ti&e of 2ritin/, it
is al&ost 7I years since the HA too( e?ect% In that ti&e it
has 4eco&e <part of the United "in/do&6s constitutional
order= 0Junce, ,-7,, p% 661 and as Wernon Bo/danor
descri4es it the cornerstone of the ne2 British constitution
0,--8, pp% HHQ9H1% As such the HA is puttin/ do2n roots in
the 4oth the U"6s constitutional order and in the le/al and
political culture of the nation% Philip )orton ar/ues that, for
Conservatives, <once an institution is in place, helpin/ shape
4ehaviour and for&in/ part of a net2or( of sta4le
relationships, then there 4eco&es, for the Conservative, a
pro4le& in 5ustifyin/ a4olition or radical sur/ery= 0)orton,
,--H, p% 7-61%
Bhen applied to the HA the pro4le& for Ca&eron is that
the HA represents such an institution that is 4eco&in/ part
of a <net2or( of sta4le relationships= 2ithin Britain6s
constitutional fra&e2or(% Dor e*a&ple the HA has set in
train 4oth directly and indirectly ne2 political &echanis&s to
facilitate a ne2 culture of ri/hts under the HA 0Hie4ert,
,-7,1% 3hree are 2orth &entionin/% Dirst, sK of the HA
per&its 5ud/es to issue declarations of inco&pati4ility 2hen
a statute is inconsistent 2ith a Convention ri/ht% 3his 2as
desi/ned in such a 2ay so as to preserve parlia&entary
soverei/nty 4y /ivin/ the le/islature the :nal say 2hen the
courts rule that a Convention ri/ht has 4een a4ro/ated%
Indeed, as one scholar has ar/ued the HA <represented a
co&pro&ise 4et2een those 2ho 2anted a USLstyle full Bill of
i/hts 2hich 2ould have per&itted the courts to stri(e do2n
le/islation, and those 2ho 2ished to &aintain the unli&ited
authority of Parlia&ent to le/islate as it sa2 :t= 0A= Cinneide,
,-7,, p% I71% It has 4een ar/ued that this <co&&on2ealth
&odel of constitutionalis&= 0Gard4au&, ,--7, ,-7I1
preserves parlia&entary soverei/nty and crucially institutes
a ne2 dialo/ue 4et2een the 5udiciary and le/islature over
the protection of ri/hts% Secondly, s78 of the HA reCuires
that a Jinister report to Parlia&ent 4efore second readin/ of
a Bill to declare that the Bill is either co&pati4le or
inco&pati4le 2ith Convention ri/hts and thirdly, in 4uildin/
upon the HA, the creation of a +oint Parlia&entary
Co&&ittee to e*a&ine hu&an ri/hts issues 0+CH1 at
Best&inster% 3he HA did not specify the creation of such a
co&&ittee 4ut <2as conceived, politically, as a 2ay to
i&prove parlia&entary ri/htsL4ased scrutiny of le/islative
4ills= 0Hie4ert, ,-7,, p% I71% In other 2ords, the HA is
helpin/ to shape le/al and political culture and 4eco&in/
part of Britain6s constitutional order% 3herefore, it is ar/ued,
that to uproot the HA and start a/ain 2ith a ne2 Bill of
i/hts is not tin(erin/ around the ed/es 4ut a farLreachin/
overhaul of a syste& that is <4eco&in/ part of the settled
la2 of the nation= 0Junce, ,-7,, p% 661%
It is 2orth notin/ at this point that considera4le de4ate still
e*ists a4out the capacity of Britain6s constitution to
reco/nise that a separate cate/ory of constitutional
statutes, such as the HA, e*ists distinct to <ordinary la2=% In
3ho4urn v Sunderland City Council6 ;ord +ustice ;a2s, one of
the Appeal +ustices, ar/ued that <2e should reco/nise a
hierarchy of Acts of Parlia&ent as it 2ere OordinaryP statutes
and OconstitutionalP statutes=% As such <constitutional=
statutes 2ould not 4e su45ect to i&plied repeal 2here if an
Act of Parlia&ent 2as found to 4e in conMict 2ith an earlier
piece of le/islation the latter Act 2ould supersede the earlier
le/islation and the conMictin/ parts of the earlier Act of
Parlia&ent are repealed% Dor ;a2s, the HA should 4e
considered as one such constitutional statue 4ecause of the
fact that it <conditions the le/al relationship 4et2een citiRen
and State in so&e /eneral, overarchin/ &anner=%7 Ho2ever,
irrespective of 2hether the HA is an ordinary or a
constitutional statute to propose, as the Conservatives have
done, its repeal and replace&ent 2ith a BBo does not alter
the fact that to do so is still a radical, unconservative
solution to the Conservatives perceived pro4le&s 2ith the
HA%
Conservatives, it is ar/ued, should value the collective
2isdo& and (no2led/e of institutions that has accrued and
evolved over the /enerations% Ane scholar refers to this as
the <(no2led/e principle= 0A6Hara, ,-771% Dro& the
<(no2led/e principle= Mo2s scepticis& of a&4itious pro5ects
for re&a(in/ societal institutions particularly 2here the
outco&e is uncertain and as A6Hara ar/ues, <2ithout
sufcient (no2led/e S there can 4e no /uarantee that
policies desi/ned to produce radical chan/e in a society 2ill
succeed=% 0A6Hara, ,-77, p% H71 In other 2ords, it could 4e
ar/ued, Ca&eron6s proposal to repeal the HA and replace it
2ith a ne2 BBo i/nores the (no2led/e principle% A ne2 Bill
of i/hts is a 4rave ne2 2orld that Ca&eron has set off
to2ards, 4ut one 2here there is insufcient (no2led/e to
provide any reassurance that the proposed chan/es to
hu&an ri/hts le/islation 2ill 2or( and address the perceived
pro4le&s that Ca&eron has hi/hli/hted% As A6Hara ar/ues,
<the innovator cannot (no2 for sure 2hether the desired
outco&e can 4e achieved, 2hile the steps ta(en to reach
that outco&e &ay 4e counterproductive= 0A6Hara, ,-77, p%
971% ather than accept that the HA no2 has a place as part
of the U"6s 4ody politic and constitutional order .avid
Ca&eron has co&&itted the Conservative Party to uprootin/
the HA and to plantin/ a ne2 &echanis& for the protection
of ri/hts in the for& of a BBo 2ith no /uarantee that any
of his or the Conservative6s criticis&s a4out it can 4e
addressed%
Previous Section
)e*t Section
$. Conclusion
3his article has sou/ht to consider .avid Ca&eron6s proposal
to repeal the HA and replace it 2ith a BBo 4y returnin/ to
an inMuential analysis of Conservative approaches to
constitution refor& 4y )evil +ohnson, and in doin/ so e*plore
the dile&&as for the Conservative Party 2hen they :nd
the&selves in the position of intentional advocates for
constitutional refor&% It is su4&itted that this is e*actly the
position the Conservatives have found the&selves in throu/h
their BBo proposal and 2hich neatly illustrates the tensions
for the Conservative Party 4et2een their proposal to repeal
the HA and the tradition of conservative political thou/ht
on constitutional refor&% Ulti&ately, it ar/ues, that in doin/
so Ca&eron6s approach runs counter to an orthodo*
conservative approach to constitutional refor&% ;oo(in/
4eyond the ne*t election and indeed 4eyond Ca&eron6s ti&e
as leader of the Conservative Party it is possi4le to ar/ue
that unease 2ith the HA and hu&an ri/hts la2 /enerally
2ill persist 2ithin the Conservative Party% Ho2ever, the
direction of constitutional refor& in Britain, for the
&eanti&e, rests 2ith the Coalition /overn&ent and the
co&ple* 2e4 of political co&pro&ises and ne/otiations that
led to its for&ation% In the conte*t of coalition politics and
&indful of the ;i4eral .e&ocrats stron/ support for the HA,
it is certain that for the duration of the Coalition, the
Conservatives 2ill not /et their 2ay on a BBo to replace the
HA% If the Conservatives are to realise their co&&it&ent to
repeal the HA and replace it 2ith a BBo they 2ill need to
2in the ne*t election outri/ht and /overn alone%
Previous Section
)e*t Section
Ac%no&ledgements
I 2ould li(e to ac(no2led/e and than( the ;everhul&e 3rust
2ithout 2ho& the research for this article 2ould not 4e
possi4le% 3heir /rateful assistance throu/h the provision of
an >arly Career Dello2ship has allo2ed the author to pursue
further research on the topic of British Conservatis& and the
protection of ri/hts% I 2ould also li(e to than( the t2o
revie2ers for their insi/htful and very helpful su//estions
and co&&ents on an earlier version of this article%
Previous Section
)e*t Section
'ootnotes
#
7
I than( one of the revie2ers for this helpful
su//estion%
#
,

http$XXne2s%44c%co%u(X7XhiXu(YpoliticsX7H8769-%st&%
#
I
3he 3i&es 0;ondon, >n/land1, Driday, 79 Jarch
,--HF p% ,F Issue 69II9%
#
K
<"en Clar(e 4rands Ca&eron plan for Bill of
i/hts as *enopho4ic= 3he Independent, ,9 +une ,--6%
http$XX222%independent%co%u(Xne2sXu(XpoliticsX(enL
clar(eL4randsLca&eronLplanLforL4illL of Lri/htsLasL
*enopho4icLK-H787%ht&l%
#
H
3he ;i4eral .e&ocrats appointed four &e&4ers
and the Conservatives appointed four &e&4ers% 3he
;i4eral .e&ocrat appointees 0Anthony ;ester ZC,
Helena "ennedy ZC, Philippe Sands ZC and Professor
Sir .avid >d2ard ZC1 all supported the >CH and the
idea of incorporation of Convention ri/hts into U"
do&estic la2 2hist the four Conservative appointees
0+onathan Disher ZC, Jartin Ho2e ZC, Jichael PintoN
.uschins(yNlater replaced 4y Anthony Spai/ht ZC and
;ord Daul(s1 2ere 4roadly sy&pathetic to the ar/u&ent
of 2ithdra2in/ fro& the >CH and enactin/ a U" Bill of
i/hts to replace the HA%
#
6
3ho4urn v Sunderland City Council T,--,U
>BHC 78H 0Ad&in1 079 De4ruary ,--,1%
http$XX222%4ailii%or/Xe2XcasesX>BHCXAd&inX,--,X78H%h
t&l%
#
7
3ho4urn v Sunderland City Council T,--,U
>BHC 78H at 6,%
[ 3he Author T,-7IU% Pu4lished 4y A*ford University Press on
4ehalf of the Hansard SocietyF all ri/hts reserved% Dor per&issions,
please eL&ail$ 5ournals%per&issions'oup%co&
Previous Section

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