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‘A complete waste’: Tories revisit judicial review and Human Rights Act in latest manifesto pledges

The Conservative Party has been criticised for looking to rekindle the debate over judicial review and the Human Rights Act should it win the upcoming general election, with the creation of a Constitution, Democracy & Rights Commission also on the agenda.

The stripped-back manifesto promises to ‘update the Human Rights Act and administrative law to ensure there is a proper balance between the rights of individuals, our vital national security and effective government.’

The commitment is less robust than the party’s 2015 manifesto, which pledged to scrap the Human Rights Act and introduce a British bill of rights in its place. Former Conservative Party leader and Prime Minister David Cameron also proposed replacing the Human Rights Act during the 2010 general election, but had his plans hindered by failing to secure a majority.

‘It’s a complete waste of everybody’s time,’ Doughty Street Chambers solicitor Adam Wagner told Legal Business. ‘Despite first being floated 13 years ago, the Tories have never found a coherent, principled way of replacing the Human Rights Act. It’s an argument they’ve lost every single time.’

The party – strongly favoured in the polls – has also promised to end the ‘abuse’ of judicial review, while ensuring to ‘protect the right of individuals against an overbearing state.’ Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.

‘Any attempts to weaken the Human Rights Act and judicial review will struggle in parliament unless they get a huge majority,’ Wagner continued. ‘There is clearly a conflict within the party about how far to go on the changes, and that’s why the commitments are vague.’

Hickman & Rose head of civil law Daniel Machover is similarly doubtful, commenting: ‘I’m not aware of any evidence to justify the claim that judicial review is being “abused to conduct politics”, as the Conservatives claim in their manifesto. Yes, many judicial reviews taken over the decades have involved challenges to government ministers, but the fact that many such challenges have succeeded shows they were made legitimately – those without any merit were no doubt stopped in their tracks at the permission stage.’

The manifesto also floats the creation of a Constitution, Democracy & Rights Commission in 2020/21 at the cost of £3m. The commission will be charged with examining the changes to the Human Rights Act and judicial review, as well as other constitutional matters arising should the United Kingdom leave the European Union.

On Brexit, the party commits to bringing a Brexit withdrawal agreement to parliament before Christmas. Not all are convinced of the timelines, however, argues Herbert Smith Freehills Brexit director Paul Butcher: ‘The elephant in the room is seeking to get a deal done by the end of 2020. There’s a fairly unanimous feeling that it’ll be tough to meet that deadline and that an extension will be required come July.’

And in a significant pledge for press regulation and media law, the Conservatives will repeal section 40 of the Crime and Courts Act 2014, which the party alleges ‘seeks to coerce the press.’ A Conservative government will also choose not to proceed with the second stage of the Leveson inquiry into the conduct of the press.