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  • 1 Vernon Bogdanor, The New British Constitution, Oxford: Hart Publishing, 2009, 59-62.
  • 2 Ibid., 65-68.

1The Human Rights Act (HRA), which incorporated most of the European Convention on Human Rights (ECHR) into British law from October 2000, was described by Professor Vernon Bogdanor as the “cornerstone” of the new constitutional order instituted after the 1997 general election, and a real watershed in terms of how rights were understood in the UK. In his 2009 book The New British Constitution, Bogdanor explained that the Act was drafted as a compromise between the principle of parliamentary supremacy and the rule of law, understood as the need to protect rights, including against Parliament. Strictly speaking, the HRA did not exactly “integrate the ECHR into British domestic law”: indeed, it did not include section 13 regarding the right to an “effective remedy before a national authority”, which means that UK courts cannot force Parliament to change the law. Courts can only issue a “declaration of incompatibility”, and what remedy should be brought is a question that lies with Parliament. The situation is different, however, for devolved administrations, whose laws have to be compatible with the ECHR and can be struck down by the courts if they are found to be in contradiction with its provisions.1 Bodganor predicted then that the HRA was likely to strengthen the judiciary and to create controversy regarding the possible “political” nature of decisions by judges.2

  • 3 R (on the application of S and Others) v Secretary of State for the Home Department [20 (...)
  • 4 David Cameron, “Balancing Freedom and Security: A Modern British Bill of Rights”, Speech to t (...)
  • 5 Conservative Party, Invitation to Join the Government of Britain, 2010, 79, 114.
  • 6 Conservative Party, Strong Leadership, A Clear Economic Plan, A Brighter, More Secure Future, (...)
  • 7 Vernon Bogdanor, The New British Constitution, op. cit., 62.
  • 8 Magnus Gardham, “Sturgeon and Welsh First Minister Carwyn Jones in Joint Call over EU vote”, (...)
  • 9 Theresa May, “The United Kingdom, the European Union, and our place in the world”, Gov.UK, Ap (...)
  • 10 Conservative Party, Get Brexit Done – Unleash Britain’s Potential, 2019, 48.

2Indeed, at the time when Bogdanor was writing in 2009, the Act had already come under criticism. In the wake of the July 2005 terrorist attacks in London, concerns over terrorism led to allegations that the HRA constituted a threat to national security, on the grounds that it made the extradition of foreign suspects of terrorism more difficult. Tony Blair himself suggested limiting the role of the courts in human rights cases, after being angered by a 2006 High Court decision on the case of nine Afghan men who were allowed to stay and work in the UK after hijacking a plane to flee the Taliban regime.3 However, it was mostly the Conservative Party which took the lead in criticising the HRA and/or the ECHR. The Conservative leader, David Cameron, declared in a 2006 speech that the HRA had “helped to create a culture of rights without responsibilities”, and insisted that it was necessary to “[balance] the rights of terror suspects against the rights of British citizens”.4 Four years later, the party’s 2010 general election manifesto promised to “replace the Human Rights Act with a UK Bill of Rights”, as well as a UK Sovereignty Bill enshrining the sovereignty of Parliament.5 The commitment to “scrap” the HRA was subsequently made in the Conservative Party’s 2015 general election manifesto.6 The prospect of a repeal of the HRA created tensions between the British government and the devolved administrations in Scotland, Wales and Northern Ireland, as the Act was an integral part of the devolution settlement.7 On June 3rd, 2015, the heads of the Scottish and Welsh governments, Nicola Sturgeon and Carwyn Jones, issued a joint declaration to voice their opposition to the project of repealing the Human Rights Act: “[...] UK Ministers have given absolutely no thought to the implications of such a move for devolved government in the UK, with human rights being embedded in the devolution settlements of Wales and Scotland and in the Good Friday Agreement. Both our governments are fundamentally opposed to this regressive move and will do everything we can to resist it”.8 Beyond the HRA, the ECHR also came under strong criticism from Conservative politicians. Decisions against the UK in a few high-profile cases (such as the Hirst case on prisoners’ voting rights, and later the controversy over Abu Qatada) were much commented upon and sometimes led to statements questioning the legitimacy of the ECHR. For example, in April 2016, Theresa May, then Home Secretary in David Cameron’s government, made the following statement: “The ECHR can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals [...]”.9 The summer of 2016, during which the more pressing issue of Brexit took centre stage, seemed to provide a temporary respite to the HRA. However, after being eclipsed by Brexit for a few years, repeal of the Act was still on the Conservative agenda, as shown by the pledges in the party’s 2019 general election manifesto to “update the HRA” and “set up a Constitution, Democracy and Rights Commission”.10 The Johnson government then proceeded to set up an Independent Human Rights Act Review (IHRAR) in December 2020 – on the eve of the implementation of the final Brexit deal. The Act eventually came close to being repealed, with a Bill of Rights Bill being introduced in Parliament on June 22, 2022 – but the passage of the bill was halted in September 2022 after Liz Truss became Prime Minister, and the bill was eventually dropped under Rishi Sunak’s government in June 2023.

  • 11 Frederick Cowell, “Introduction – Defining and understanding the case against the Human Right (...)
  • 12 Ibid., 7.
  • 13 Frederick Cowell, “The Three Eras of Opposition to the Human Rights Act”, UK Constitutional (...)
  • 14 Vernon Bogdanor, The New British Constitution, op. cit., 56.
  • 15 Frederick Cowell, “Introduction – Defining and understanding the case against the Human Right (...)
  • 16 Zoé Jay, “A Tale of Two Europes: How Conflating the European Court of Human Rights with (...)
  • 17 Paul Taggart and Aleks Szczerbiak, “The Party Politics of Euroscepticism in EU Member a (...)

3Frederick Cowell, in Critically Examining the Case Against the 1998 Human Rights Act (2019), considered that “the case against the HRA [was] unprecedented and it [was] hard to find any direct parallels in British legal history of a statute exciting such high levels of opposition”, adding that the Act had served as “a lightning rod for populist political anger”.11 Cowell identified three broad types of criticism against the HRA,12 which he later refined in a 2022 blog post for the UK Constitutional Law Association.13 He identified a first phase, from 1997 to 2006, characterised by a focus on the constitutional question, with the HRA being accused of upsetting the constitutional order, threatening the sovereignty of Parliament by giving too much power to the judiciary. The second phase from 2006 to 2016 marked the shift towards a political debate, in the context of rising frustration among the Conservatives against the courts following decisions regarding criminals, suspected terrorists and asylum seekers (the categories that Bogdanor called “unpopular minorities”, who are not likely to benefit from the protection of public opinion).14 This phase, mainly driven by the positions taken by then Home Secretary Theresa May, led to explicit consideration being given to the repeal of the HRA. In the third phase, from 2016, the political debate came to be dominated by concerns over sovereignty, in the context of Brexit, with a discourse founded on “general hostility to supranationalism, which the European Court of Human Rights (ECtHR) became caught up in as anti–European Union (EU) sentiment increased in wider society”.15 Indeed, as Zoé Jay established, there was a frequent conflation in political discourse between hostility to the European Union, or Euroscepticism, and hostility towards the ECHR and the Strasbourg court, which she called “Strasbourgscepticism”.16 The term “Euroscepticism” itself has been used to cover a wide range of negative attitudes towards Europe, in particular since the Maastricht Treaty of 1992. In their seminal work on Euroscepticism and party politics in the early 2000s, Paul Taggart and Aleks Szczerbiak identified two types of Euroscepticism: “hard” and “soft”. Hard Euroscepticism consisted in a “principled opposition to the EU and European integration” as a whole, on the part of political parties, the archetype of this position at the time being a single-issue party like UKIP. Soft Euroscepticism, by comparison, was characterised either by a “qualified opposition to the EU” or by a “sense that ‘national interest’ [was] currently at odds with the EU’s trajectory”.17

4Through its pluridisciplinary approach, this volume proposes to look at all the dimensions of the debate around the HRA identified above, through contributions in the fields of constitutional law, human rights and welfare law, political science and political history. The reality and ubiquity of the conflation between the HRA, the ECHR and even sometimes the EU in British political discourse explains why, in this publication, we propose to look at both criticism against the HRA and criticism against the ECHR as an expression of a form of Euroscepticism, which is not confined to criticism of the EU per se, but encompasses all forms of perceived European encroachment on British sovereignty. Therefore, the contributions focus mostly on “soft” Euroscepticism through the attitudes of the governing parties, which were in a position to have a direct impact on policy regarding the HRA and the ECHR over the period from 1998 to 2022. They are not looking specifically at UKIP, as the party had little to no representation in the UK Parliament over that period, even though the progress they made at each and every European parliament election between 1999 and 2014 undoubtedly contributed to putting pressure on the mainstream parties, especially the Conservative Party. Thus, this volume is meant to provide an overview of the debates during a period when it seemed that the HRA might be doomed, namely until the end of the Johnson government in 2022. Time will tell whether the return of the Labour Party to government in 2024 will have relegated these debates safely to the past, or whether it is to be only a temporary reprieve.

5The first part looks into attacks on the Human Rights Act and the European Convention on Human Rights based on the claim that they represent a threat to the sovereignty of the United Kingdom.

6Peggy Ducoulombier provides a detailed analysis of the report of the Independent Human Rights Act Review (IHRAR), set up by the Johnson government in December 2020 to examine the workings of the HRA and recommend changes. The article first sets the review into its wider political and legal context, explaining how successive Conservative governments tried to place the issue of reforming or replacing the HRA at the top of the political agenda. This was reflected in their electoral manifestos from 2010 to 2019, as well as in the decision to set up a commission on a British Bill of Rights in 2011-2012. Using populist and nationalist arguments, the Conservative Party tried to push the idea that the Act was incompatible with the tradition of British parliamentary supremacy and had given too much power to the courts. This created tensions with the devolved institutions, which are more protective of the HRA, in part because it was an integral part of the devolution settlements in Wales, Scotland and Northern Ireland. The scepticism over the Human Rights Act also spread to the judiciary, with British judges showing much restraint in issuing “declarations of incompatibility”, and increasingly emancipating their decisions from the tutelage of Strasbourg case law. The article then shows that the findings of the IHRAR did not in fact support the government’s claims – which did not, however, stop the government from carrying on with their plans for reform in the immediate aftermath, in contradiction with the experts’ recommendations.

7Anne Cousson explores the question of how Euroscepticism and penal populism permeated British parliamentary discourse on the question of the prisoners’ right to vote, in the years that followed the Hirst v United Kingdom (N°2) decision of the ECtHR on 6 October 2005. The court ruled that the blanket ban on the right to vote for prisoners violated Article 2 of the First Protocol of the ECHR, prompting many negative reactions from MPs in the House of Commons, as well as from the British press. Such reactions are emblematic of the dichotomy in the representation of human rights in British political discourse, between an ideal to aspire to, and a tool for criminals or terrorists to escape justice. Through a qualitative analysis of fourteen parliamentary speeches between 2005 and 2017, the author shows that the frequent emphasis on “sovereignty” is not limited to a constitutional debate over a power struggle between the ECtHR and Westminster, but extends to a nationalist view of sovereignty, pitting the British people against a loosely defined “Europe”, often lumping together the ECtHR and the EU, and extolling Britain as having a superior and older human rights culture. “Penal populism”, which prioritises the perceived preferences of public opinion over the protection of fundamental rights, was used to appeal to voters in a context of divisions over the question of the UK’s EU membership. As an unpopular minority, criminals are excluded from this definition of the British “people”, and the judges of the ECtHR are portrayed as an illegitimate, foreign elite. This contribution shows that the inflammatory language used in many British tabloids permeated parliamentary discourse, and how differences in discourse between the three major parties (the Conservatives, Labour and the Liberal Democrats) can be connected to their own difficulties or internal divisions on European issues.

8Victoria Hooton explores the reluctance of the European Court of Human Rights (ECtHR) and of the Court of Justice of the European Union (CJEU) to engage human rights norms in cases relating to national welfare policies. The article’s focus is on the interpretation by the two courts of the legal frameworks of ECHR law and EU law, rather than on the UK’s national approach to welfare benefits and human rights protection under the HRA. The author demonstrates, through an in-depth analysis of ECtHR and CJEU case law, how relevant many national UK cases, as well as cases from the two European courts concerning UK law, are to the discussion of fundamental rights and access to welfare benefits. The article aims to show how the political climate of Euroscepticism in the UK and in Europe, the rhetoric relating to EU free movement law and “benefit tourism”, as well as populist narratives about the “interference” by “foreign” judges and institutions, have all played a role in the development of EU free movement law. This is particularly true in the area of EU citizenship, residence, and welfare access. The author concludes that as both the ECtHR and the CJEU show a level of non-engagement with such politically sensitive matters as welfare access, and a preference for granting deference to states when constructing their national laws and policies, the current political climate and Euroscepticism in Europe have the potential to shape and influence the parameters of human rights norms in welfare access cases.

9The second part deals with challenges to the British perspective on human rights in the devolved nations, examining the cases of Scotland and of Northern Ireland.

10Daniel Cetrà and Michael Keating first remind us that human rights, though intrinsically universal, have been acted upon within the framework of the nation-state, and thereby linked to nation-building projects. In recent decades, however, they have also been articulated at the supranational level as well as at the substate level. The authors thus explore the use of human rights by British and Scottish nationalists as a ‘nation-building instrument’, in the aftermath of the incorporation of the ECHR into UK domestic law under the HRA, and its concomitant entrenchment into the devolution settlement put in place in Scotland. Reviewing the proposals for a British Bill of Rights from both the Labour and the Conservative parties, and their reception in Scotland, the authors insist that, though coming from different perspectives, these proposals had the common objective of rebuilding the British national project, on the basis of shared British values, and according to a conception of the UK as a unitary state. In Scotland, however, these proposals were consistently opposed by both the Scottish government and Parliament, as they were seen as based in essence on the English constitutional tradition, and ignoring Scotland’s constitutional history, and thus in complete contradiction with the widely-accepted view, since devolution, of the UK as a plurinational union. Consequently, while in the debate on human rights legislation at the UK level, the incorporation of Convention rights into UK domestic law has been attacked as an encroachment on the sovereignty of the British Parliament, in Scotland, the HRA has been welcomed by the Scottish government and Parliament, for entrenching Convention rights while also allowing for the emergence of a distinct human rights regime in Scotland.

11Annie Thiec investigates the emergence of a distinct human rights culture which has gradually become embedded in Scotland’s institutional framework post devolution, with a narrative centring on the ambition to lead the way on human rights protection in the UK. In the context of the successive consultations on proposals for a British Bill of Rights since 2011, the Scottish government has made a point of underlining the complexity of the human rights regime in place in Scotland, which is the direct consequence of the position of human rights in the Scottish devolution framework. The HRA incorporated the fundamental rights and freedoms set out in the ECHR into domestic law across the UK, while preserving the principle of the sovereignty of the British Parliament. In Scotland, however, the devolution settlement put in place under the Scotland Act 1998, prohibited the Scottish Parliament and the Scottish government from legislating or implementing policy which was incompatible with the ECHR. Besides, while human rights are not explicitly reserved under the Scotland Act 1998, which implies that the Scottish Parliament can enact legislation relating to human rights issues within devolved policy areas, it is, however, specifically prohibited from amending the HRA. In its contribution to the debate on proposals for reform of the UK’s human rights legislation, the Scottish government has made clear its opposition to the repeal of the HRA, and its ambition to move the agenda forward on human rights protection in Scotland. In this regard, the Scottish Human Rights Commission (SHRC) has been instrumental in instilling a human rights culture within both the Scottish government and the Scottish Parliament, and its work has also contributed to an increasingly internationalist outlook on their part on human rights protection.

12Charlotte Barcat uses Bloody Sunday (30 January 1972) in Northern Ireland as a case study against which to test the claims of “British exceptionalism” in relation to human rights protection, particularly in relation to Article 2, the “right to life”. Since the early 2000s, the ECtHR has interpreted this article as carrying not only a negative obligation to restrain from using lethal force against citizens except in a few clearly established, exceptional circumstances, but also a positive obligation to provide an independent inquiry into the events if lethal force was used in disputed circumstances. Bloody Sunday, when British paratroopers shot dead thirteen civil rights marchers and wounded sixteen others in the city of Derry/Londonderry, certainly qualifies as an Article 2 case. The first inquiry, led by Lord Widgery in 1972, failed to restore confidence and came under harsh criticism from not only the victims’ relatives, but also various outside observers, including the International League for the Rights of Man. Still, the UK Parliament and government accepted it as the final version of events concerning Bloody Sunday. The second Bloody Sunday Inquiry (1998-2010), led by Lord Saville, can be considered as an “Article 2” inquiry, aimed to provide a truly independent and thorough inquiry where the previous one had clearly failed. However, the very long wait and the vigorous campaign that were necessary to obtain this concession from the UK government suggest that it is illusory to assume that the British parliamentary tradition alone would be enough to safeguard such rights. The Bloody Sunday case shows that it is still very hard for the UK government to admit to human rights violations when this admission means potentially throwing their narratives into crisis: indeed, in addition to the claim of being a nation with a long history of human rights protection, the British state has often sought to portray itself as an “honest broker” rather than an actor in the Northern Irish conflict. The difficulty that victims of the state face when demanding truth and justice highlights the importance of the ECHR and of the HRA, which was indeed passed in part as a guarantee for human rights protection in Northern Ireland in the context of the Good Friday Agreement of 1998.

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Bibliographie

BOGDANOR Vernon, The New British Constitution, Oxford: Hart Publishing, 2009.

CAMERON David, “Balancing Freedom and Security: A Modern British Bill of Rights”, Speech to the Centre for Policy Studies, 26 June 2006.

CONSERVATIVE PARTY, Invitation to Join the Government of Britain, 2010.

CONSERVATIVE PARTY, Strong Leadership, A Clear Economic Plan, A Brighter, More Secure Future, 2015.

CONSERVATIVE PARTY, Get Brexit Done – Unleash Britain’s Potential, 2019.

COWELL Frederick (ed.), Critically Examining the Case Against the 1998 Human Rights Act, New York: Routledge, 2019.

COWELL Frederick, “The Three Eras of Opposition to the Human Rights Act”, UK Constitutional Law Association Blog, November 14, 2022, <https://ukconstitutionallaw.org/>.

GARDHAM Magnus, “Sturgeon and Welsh First Minister Carwyn Jones in Joint Call over EU vote”, The Herald, June 3, 2015, <https://www.heraldscotland.com/news/13411315.sturgeon-welsh-first-minister-carwyn-jones-joint-call-eu-vote/>.

JAY Zoë, “A Tale of Two Europes: How Conflating the European Court of Human Rights with the European Union Exacerbates Euroscepticism”, The British Journal of Politics and International Relations, vol. 24, n° 4, 2021, <https://doi.org/10.1177/13691481211048501>.

MAY Theresa, “The United Kingdom, the European Union, and our place in the world”, Gov.UK, April 25, 2016, <https://www.gov.uk/government/speeches/home-secretarys-speech-on-the-uk-eu-and-our-place-in-the-world>.

R (on the application of S and Others) v Secretary of State for the Home Department [2006] EWHC 1111 (Admin).

TAGGART Paul and SZCZERBIAK Aleks, “The Party Politics of Euroscepticism in EU Member and Candidate States”, Opposing Europe Research Network, Working Paper n°6, 2002.

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Notes

1 Vernon Bogdanor, The New British Constitution, Oxford: Hart Publishing, 2009, 59-62.

2 Ibid., 65-68.

3 R (on the application of S and Others) v Secretary of State for the Home Department [2006] EWHC 1111 (Admin).

4 David Cameron, “Balancing Freedom and Security: A Modern British Bill of Rights”, Speech to the Centre for Policy Studies, 26 June 2006.

5 Conservative Party, Invitation to Join the Government of Britain, 2010, 79, 114.

6 Conservative Party, Strong Leadership, A Clear Economic Plan, A Brighter, More Secure Future, 2015, 58, 60.

7 Vernon Bogdanor, The New British Constitution, op. cit., 62.

8 Magnus Gardham, “Sturgeon and Welsh First Minister Carwyn Jones in Joint Call over EU vote”, The Herald, June 3, 2015, <https://www.heraldscotland.com/news/13411315.sturgeon-welsh-first-minister-carwyn-jones-joint-call-eu-vote/>.

9 Theresa May, “The United Kingdom, the European Union, and our place in the world”, Gov.UK, April 25, 2016, <https://www.gov.uk/government/speeches/home-secretarys-speech-on-the-uk-eu-and-our-place-in-the-world>.

10 Conservative Party, Get Brexit Done – Unleash Britain’s Potential, 2019, 48.

11 Frederick Cowell, “Introduction – Defining and understanding the case against the Human Rights Act” in Critically Examining the Case Against the 1998 Human Rights Act, New York: Routledge, 2019, 3.

12 Ibid., 7.

13 Frederick Cowell, “The Three Eras of Opposition to the Human Rights Act”, UK Constitutional Law Association Blog, November 14, 2022, <https://ukconstitutionallaw.org/>.

14 Vernon Bogdanor, The New British Constitution, op. cit., 56.

15 Frederick Cowell, “Introduction – Defining and understanding the case against the Human Rights Act”, op. cit., 7.

16 Zoé Jay, “A Tale of Two Europes: How Conflating the European Court of Human Rights with the European Union Exacerbates Euroscepticism”, The British Journal of Politics and International Relations, vol. 24, n° 4, 2021, <https://doi.org/10.1177/13691481211048501>.

17 Paul Taggart and Aleks Szczerbiak, “The Party Politics of Euroscepticism in EU Member and Candidate States”, Opposing Europe Research Network, Working Paper n°6, 2002, 7.

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Charlotte Barcat et Annie Thiec, « Introduction »Revue LISA/LISA e-journal [En ligne], vol.23-n°60 | 2025, mis en ligne le 01 décembre 2025, consulté le 17 décembre 2025. URL : http://journals.openedition.org/lisa/17537 ; DOI : https://doi.org/10.4000/157hy

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Auteurs

Charlotte Barcat



Charlotte Barcat is an associate professor in UK politics and history at Nantes Université, France. She specialises in the history and politics of contemporary Northern Ireland. Her research focuses on the peace process, on dealing with the past and on issues of truth and justice. She has published several research articles on the second Bloody Sunday Inquiry, also known as the Saville Inquiry (1998-2010). Her research was supported by the RFI Alliance Europa between 2018 and 2022, and she is currently part of the CRINI research unit and of the Jean Monnet Centre of Excellence UNIPAIX, focusing on developing peace studies in France through a pluridisciplinary approach.

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Annie Thiec



Annie Thiec is associate professor in British and Scottish politics at Nantes Université, France. Her research interests include nationalism, identity politics, elections and political parties in Scotland, party politics in multi-level systems, intergovernmental relations in the United Kingdom, and Scotland and the European Union.

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