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Dominic Raab: New minister with a tricky brief (photo: Policy Exchange)

With victory in the 2015 general election comes an opportunity for the Conservative government to implement its commitments on reform of our laws on human rights. David Cameron has put the responsibility for doing this into the hands of two of his most talented MPs — Michael Gove, Dominic Raab — and a top QC, Lord Faulks. They will need all their intellectual and diplomatic powers to steer ahead while avoiding the icebergs in their path.

On the positive side, there has been considerable progress since the ill-fated Commission on a Bill of Rights was effectively blocked in 2011-12 from giving consideration to the core issue of parliamentary sovereignty. The terms of debate have changed. Senior judges, current and recently retired, as well as academics have come to accept that judicial interpretations of broadly worded human rights conventions may lead to an undermining of the powers of democratically elected legislatures.

On the negative side, there is the fearsome complexity of the new legal system created not only by treaties signed by the UK with the Council of Europe but also with the European Union and the United Nations. The intended replacement of the Human Rights Act of 1998 with a British Bill of Rights will have relatively little effect unless several icebergs stemming from these international commitments are avoided.

First, as long as the UK remains signed up to the European Convention on Human Rights, anyone in the country may take a case directly to the European Court in Strasbourg and win damages against a UK government which refuses to implement its judgments.

Second, the Lisbon Treaty has brought into law the EU Charter of Fundamental Rights adjudicated by the Court of Justice of the European Union in Luxembourg. The opt-out from the Lisbon Treaty negotiated by the last Labour government has turned out to be fairly meaningless. The Luxembourg court may become a considerably greater threat to Westminster’s law-making authority than Strasbourg has ever been.

Third, there is the question of whether the UK could realistically remain within the jurisdiction of the Strasbourg court were it to regard its decisions merely as “advisory”, as set out in October 2014 by the then Justice Minister Chris Grayling. This would be contrary to the UK’s obligations under the European Convention on Human Rights. It is true that other countries ignore the court’s rulings in hundreds of cases, whereas only in exceptional cases, such as prisoner voting rights, has the UK been reluctant to comply. Dominic Raab has written that the UK could ignore the court without causing more than a “mild diplomatic prang”. The distinguished former judge Sir Stephen Sedley has spoken to the same effect.

A fourth issue is whether a UK exit from the jurisdiction of the Strasbourg court would have an undesirable impact on the rule of law in other members of the Council of Europe, such as Russia and Turkey. This “Russia argument” is constantly cited as part of the rhetoric against the Conservative party proposals. If Strasbourg decisions were to be advisory only for the UK, the same would apply to some of the more dubious regimes. Since such regimes frequently disregard Strasbourg judgments anyway, the strength of this argument is open to debate.

Apart from these points of substance, there are possible political pitfalls. Government proposals would be subject to defeat in the House of Lords and to rebellion, albeit limited, on Tory benches in the Commons. They could also conflict with the Good Friday Agreement in Northern Ireland and with legislation concerning devolution in Scotland. Any reform might therefore be applicable only in England and Wales.

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