Introduction
The United Kingdom’s departure from the European Union, formalised by the European Union (Withdrawal) Act 2018, initiated a profound reconfiguration of the constitutional relationship between domestic law and supranational rights frameworks. Two legislative episodes since Brexit crystallise the tensions inherent in that reconfiguration: the Retained EU Law (Revocation and Reform) Act 2023 (REULA), which dismantled the special domestic status of EU-derived law, and the abandoned Bill of Rights Bill 2022, which proposed replacing the Human Rights Act 1998 (HRA) with a more restrictive domestic charter. The question posed invites an assessment of whether these developments demonstrate that the UK’s relationship with supranational rights protection is now governed by political expediency rather than constitutional principle.
This essay argues that the proposition captures a genuine and important shift, but overstates it in two respects. First, political expediency and constitutional principle are not wholly separable in a system governed by parliamentary sovereignty; in such a system, what counts as a constitutional principle is itself partly a product of political settlement. Second, although the REULA and the Bill of Rights Bill saga each exhibit features of opportunistic executive-driven policy, both also engage principled constitutional arguments about democratic self-governance, the proper source of fundamental rights, and the institutional relationship between Parliament, the courts, and supranational bodies. The stronger critique is not that principle has been abandoned entirely, but that the principles invoked have been deployed selectively and inconsistently, subordinated to short-term political objectives, and implemented through mechanisms that weaken rather than strengthen constitutional accountability. The relationship with supranational rights protection is accordingly best characterised as one of principled rhetoric masking expedient practice.
The Constitutional Framework: Parliamentary Sovereignty and Rights Protection
Any assessment of the UK’s relationship with supranational rights must begin with the doctrine of parliamentary sovereignty. Under orthodox Diceyan theory, Parliament possesses the legal authority to make or unmake any law, and no body can override or set aside an Act of Parliament (Dicey, 1885). This doctrine has been reaffirmed, albeit with qualifications, in modern case law. In R (Jackson) v Attorney General [2005] UKHL 56, the House of Lords confirmed parliamentary sovereignty as a foundational principle while several Law Lords suggested, obiter, that it might be subject to constitutional limits. In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court treated parliamentary sovereignty as the reason why the executive could not use prerogative powers to trigger Article 50, since EU law had become a source of domestic rights that only Parliament could remove.
The significance of this framework is that membership of supranational rights regimes — whether EU law or the European Convention on Human Rights (ECHR) — has always been, in domestic constitutional terms, a product of parliamentary choice rather than a limitation on parliamentary power. The European Communities Act 1972 (ECA) gave domestic effect to EU law; the HRA gave domestic effect to Convention rights. Both were ordinary Acts of Parliament, albeit ones described by the courts as having constitutional significance (Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), per Laws LJ). The argument from constitutional principle, therefore, cuts both ways: Parliament’s decision to withdraw from these frameworks can be presented as an exercise of the same sovereign authority that created them, but the manner, process, and motivation of withdrawal remain open to constitutional critique.
The critical question is therefore not whether Parliament has the power to reshape the UK’s relationship with supranational rights protection — it plainly does — but whether the manner in which that power has been exercised reflects a coherent constitutional vision or an opportunistic response to political pressures. It is to this question that the REULA and the Bill of Rights Bill must be examined.
The Retained EU Law (Revocation and Reform) Act 2023: Sovereignty Reclaimed or Executive Power Grab?
The REULA emerged from the government’s desire to complete what it described as the process of “Brexit freedoms” — the removal of EU-derived law from the domestic statute book and the restoration of full legislative autonomy. The Act’s genesis lay in the European Union (Withdrawal) Act 2018, which had preserved EU law as “retained EU law” (REUIL) to ensure legal continuity on exit day. This was widely regarded as constitutionally pragmatic: without it, significant areas of employment, environmental, consumer, and equality law would have lapsed overnight (Craig, 2018). However, retained EU law occupied an anomalous constitutional position. It was domestic law, yet it derived from a supranational source. Certain categories — retained direct EU legislation — were not the product of any domestic parliamentary process. Moreover, under section 5(2) of the 2018 Act, the principle of the supremacy of EU law continued to apply to pre-exit legislation, meaning retained EU law could, in certain circumstances, take priority over prior domestic statutes.
The government’s initial proposal, contained in the Retained EU Law (Revocation and Reform) Bill as introduced in September 2022, was dramatic: a “sunset clause” under which all retained EU law not expressly preserved would automatically expire on 31 December 2023. This proposal attracted sustained constitutional criticism. The House of Lords Constitution Committee warned that automatic sunsetting of thousands of legislative instruments, many of which had received no meaningful parliamentary scrutiny, raised serious rule-of-law concerns (House of Lords Constitution Committee, 2023). The Hansard Society argued that the sunset mechanism effectively reversed the normal constitutional presumption: instead of Parliament deciding what law to repeal, all law would be repealed unless ministers chose to preserve it, amounting to an extraordinary transfer of legislative power to the executive (Hansard Society, 2022). The government eventually retreated, replacing the universal sunset with a schedule listing specific instruments for revocation, enacted as section 1 of and Schedule 1 to the REULA as passed.
Nevertheless, the Act as enacted retains features that are difficult to reconcile with a principled approach to constitutional reform. Section 2 repealed the principle of the supremacy of EU law, meaning that retained EU law would no longer take priority over domestic legislation. Section 3 abolished the general principles of EU law as an aid to interpretation. Sections 12–15 conferred broad powers on ministers to revoke, replace, or restate retained EU law by secondary legislation. These ministerial powers are significant: they enable the executive to alter substantive legal rights — including those concerning employment protection, environmental standards, and equality — through statutory instruments subject to limited parliamentary scrutiny.
Defenders of the Act invoke a clear constitutional principle: that EU-derived law lacks democratic legitimacy in the UK’s post-Brexit constitutional order and should not enjoy a privileged hierarchical status (Ekins, 2023). There is force in this argument. The supremacy principle was always a judicially constructed EU law doctrine (Case 6/64 Costa v ENEL [1964] ECR 585), and its continued operation in domestic law after exit was, at best, a transitional anomaly. Similarly, the general principles of EU law — proportionality, legal certainty, fundamental rights — were derived from the Court of Justice’s case law rather than from any domestic legislative choice. Their removal can be presented as a principled assertion that fundamental legal norms should derive from domestic constitutional sources.
However, the difficulty is that the Act does not replace these EU-derived protections with equivalent domestic constitutional standards. It removes the supremacy of EU law without establishing any alternative hierarchy for the rights previously protected by that doctrine. It abolishes the general principles of EU law as interpretive tools without legislating domestic equivalents. The result is a net reduction in legally enforceable rights standards, implemented primarily through executive power. As Young has argued, the Act represents not a principled repatriation of sovereignty to Parliament, but a transfer of power from one external constraint (EU law) to the domestic executive (Young, 2023). If the constitutional principle underlying Brexit was that laws affecting UK citizens should be made by their elected Parliament, then delegating the power to amend or revoke those laws to ministers through secondary legislation undermines that very principle.
The legislative process further supports the charge of expediency. The original sunset clause was not a carefully calibrated reform proposal; it was a political device designed to force the pace of regulatory divergence from the EU, announced by the then Business Secretary Jacob Rees-Mogg as part of a programme of post-Brexit deregulation (Department for Business, Energy & Industrial Strategy, 2022). Its abandonment owed less to constitutional reflection than to practical impossibility: the civil service could not identify, review, and preserve all relevant retained EU law within the timeframe. The shift from universal sunset to a targeted schedule was not accompanied by any articulated constitutional criterion for selecting which instruments should be revoked. The process appeared, in Elliott’s terms, to be driven by a political narrative about “taking back control” rather than by any coherent theory of which EU-derived norms should be maintained and which should not (Elliott, 2023).
The Bill of Rights Bill: A Rights Framework Abandoned to Political Calculation
The Bill of Rights Bill 2022, introduced by the then Lord Chancellor Dominic Raab, proposed to repeal the HRA and replace it with a new “Bill of Rights” that would have significantly altered the domestic relationship with the ECHR. Among its principal provisions, the Bill sought to: restrict the interpretive obligation under section 3 of the HRA by replacing it with a more limited duty to interpret legislation in accordance with its “ordinary meaning”; limit the scope of positive obligations; introduce a “permission stage” for human rights claims requiring claimants to demonstrate “significant disadvantage”; restrict the extraterritorial application of Convention rights; and create a framework for Parliament to respond to judgments of the European Court of Human Rights (ECtHR) through a democratic override mechanism. The Bill did not propose withdrawal from the ECHR itself, but it sought to widen the gap between the Convention as interpreted in Strasbourg and the rights enforceable in domestic courts.
The constitutional arguments in favour of reform were not trivial. The Independent Human Rights Act Review (IHRAR), chaired by Sir Peter Gross, reported in 2021 that there were legitimate concerns about the breadth of the section 3 interpretive power, the relationship between sections 3 and 4 of the HRA, and the operation of the “mirror principle” whereby domestic courts follow Strasbourg jurisprudence (R (Ullah) v Special Adjudicator [2004] UKHL 26). Some of these concerns had academic support: Kavanagh (2009) had argued that section 3 confers a power of remarkable breadth, and several judges had questioned whether it had been used to achieve results that amounted to judicial legislation (Ghaidan v Godin-Mendoza [2004] UKHL 30, per Lord Millett, dissenting). The IHRAR recommended targeted reforms, including a revised approach to section 3, but did not recommend repeal of the HRA.
The Bill of Rights Bill departed markedly from the IHRAR’s measured approach. Where the IHRAR proposed calibration, the Bill proposed restriction. The permission stage for human rights claims was criticised by the Joint Committee on Human Rights as creating an unjustifiable procedural barrier to the vindication of fundamental rights (Joint Committee on Human Rights, 2022). The restriction on positive obligations would have undermined protections developed in areas such as domestic violence, child protection, and healthcare — areas where the ECtHR and domestic courts have required the state to take reasonable steps to protect individuals from harm (Osman v United Kingdom (2000) 29 EHRR 245). The proposal to curtail section 3 was characterised by Hickman (2023) as reducing human rights from interpretive principles permeating all legislation to a marginal consideration applicable only where statutory language was ambiguous.
The political context of the Bill is revealing. It was introduced during a period of acute tension between the UK Government and the ECtHR, crystallised by the Strasbourg court’s interim measure under Rule 39 in N.S.K. v United Kingdom (Application No. 28774/22), which halted a flight removing asylum seekers to Rwanda. The Bill was widely perceived as a political response to this intervention, designed to insulate government migration policy from Strasbourg review (Greer and Slowe, 2023). This perception was reinforced by ministerial rhetoric: the then Lord Chancellor described the Bill as necessary to prevent “the incremental expansion of rights by the Strasbourg court” and to restore democratic control over human rights standards.
The abandonment of the Bill — it was withdrawn following the appointment of a new Lord Chancellor, Alex Chalk, in 2023 — is equally instructive. It was not dropped because the government articulated a principled reason for retaining the HRA, but because it lacked sufficient political support within the governing party and had become a political liability. The saga therefore illustrates both the accusation of expediency and its limits: the Bill was introduced for expedient reasons and withdrawn for expedient reasons, but its failure also demonstrates that political constraints can, in practice, prevent the most opportunistic erosion of rights.
Political Expediency and Constitutional Principle: A False Dichotomy?
The proposition in the essay question implicitly treats political expediency and constitutional principle as mutually exclusive categories. This framing, while rhetorically effective, obscures important features of the UK’s uncodified constitution. In a system where Parliament is sovereign, constitutional arrangements are, at one level, always the product of political choice. The decision to incorporate Convention rights through the HRA in 1998 was itself a political project, driven by the incoming Labour government’s commitment to “bringing rights home” (Straw and Boateng, 1997). The ECA 1972 was enacted to facilitate a political decision to join the European Communities. As Tomkins (2005) has argued, the UK’s political constitution means that the boundaries of rights protection are necessarily determined through political processes rather than by judicially enforced constitutional entrenchment.
On this view, the REULA and the Bill of Rights Bill are simply further instances of parliamentary sovereignty operating through normal political channels. A Hartian positivist might add that there is no rule of recognition in the UK requiring the maintenance of any particular supranational rights framework; the content of fundamental law is determined by the political facts of acceptance by officials and courts (Hart, 1961). If Parliament decides that Convention rights should be given a more restrictive domestic effect, or that EU-derived rights should be repealed, these are constitutionally legitimate exercises of sovereign power.
However, this response is too sanguine. The political constitution thesis does not entail that every exercise of sovereign power is equally principled. It requires, at minimum, that constitutional changes be made through politically accountable processes — that is, through genuine parliamentary deliberation rather than executive diktat. As Tomkins himself acknowledges, the political constitution demands “political accountability, not political convenience” (Tomkins, 2005, p.3). Evaluated against this standard, both the REULA and the Bill of Rights Bill are deficient. The REULA delegates sweeping powers to ministers to alter substantive rights by secondary legislation, bypassing the parliamentary deliberation that the political constitution requires. The Bill of Rights Bill was developed through a process that largely disregarded the government’s own independent review and was shaped primarily by executive policy preferences regarding migration.
Moreover, even in an uncodified constitution, certain norms acquire a settled quality that demands justification for departure. The rule of law, as articulated by Lord Bingham (2010), includes requirements of legal certainty, accessibility, and non-arbitrary exercise of power. The REULA’s original sunset clause — threatening the automatic expiry of thousands of regulatory instruments — was in tension with these requirements. The Bill of Rights Bill’s permission stage, by erecting procedural barriers to rights claims, arguably compromised access to justice, which Lord Reed described in R (UNISON) v Lord Chancellor [2017] UKSC 51 as “not a purely procedural matter” but “the means by which rights are enforced and made effective.” These rule-of-law concerns are not merely political preferences; they are constitutional principles that constrain even a sovereign Parliament, at least in the sense that departure from them requires explicit justification.
The Selective Invocation of Sovereignty: Where Principle Becomes Pretence
Perhaps the strongest evidence for the proposition is the selectivity with which the government has invoked constitutional principle. The sovereignty argument has been deployed asymmetrically: it is invoked to justify removing supranational constraints on executive power, but not to strengthen Parliament’s role in scrutinising the executive’s subsequent exercise of that power. If the constitutional objection to retained EU law was that it bypassed Parliament, one would expect the REULA to ensure that any replacement regulations receive full parliamentary deliberation. Instead, sections 12–15 confer broad delegated powers that replicate the very democratic deficit the Act purports to correct. Similarly, if the objection to the HRA was that Strasbourg jurisprudence lacked democratic input, one might expect the Bill of Rights Bill to have proposed mechanisms for enhanced parliamentary engagement with rights adjudication. Instead, it concentrated power in the executive by restricting judicial remedies and limiting individual access to courts.
This asymmetry suggests that the operative concern is not sovereignty in any principled sense — meaning the democratic self-governance of the people through Parliament — but rather executive freedom from legal constraint, whether that constraint originates in supranational institutions, domestic courts, or Parliament itself. Ewing (2023) argues that the post-Brexit rights landscape represents not the repatriation of sovereignty to Parliament, but its consolidation in the executive, with supranational withdrawal serving as the pretext. On this analysis, “taking back control” has meant the executive taking control back from courts and international bodies, not Parliament reclaiming legislative authority.
The point is reinforced by the government’s broader legislative programme. The Illegal Migration Act 2023, which restricts asylum seekers’ access to the domestic courts and disapplies elements of the HRA, was enacted notwithstanding a section 19(1)(b) statement from the Home Secretary that she was unable to confirm its compatibility with Convention rights. The Rwanda policy, upheld in part and then struck down in R (AAA) v Secretary of State for the Home Department [2023] UKSC 42, provoked the Safety of Rwanda (Asylum and Immigration) Act 2024, which sought to reverse the Supreme Court’s factual findings by legislative declaration. These episodes share a common pattern: the government invokes parliamentary sovereignty to override specific judicial or supranational constraints on its policy agenda, while simultaneously resisting meaningful parliamentary deliberation on the measures concerned.
The Persistence of Convention Membership: Pragmatism or Principle?
A countervailing consideration is that the UK has not withdrawn from the ECHR, despite occasional political rhetoric suggesting this possibility. The continued membership of the Convention — and the continued operation of the HRA, notwithstanding the Bill of Rights Bill — suggests that political expediency operates as a constraint as well as a driver. Withdrawal from the ECHR would carry significant diplomatic consequences, not least in relation to the Belfast/Good Friday Agreement, which incorporates ECHR obligations, and the EU-UK Trade and Cooperation Agreement, whose human rights provisions reference the Convention. As Bratza (2023) has observed, the practical costs of withdrawal have, so far, outweighed the political benefits.
This pragmatic restraint might itself be characterised as expediency — the government refrains from withdrawal not because it values the ECHR as a matter of principle, but because withdrawal would be politically costly. Nevertheless, the distinction between pragmatic respect for institutional constraints and principled commitment to rights is, in a political constitution, less sharp than it might appear. If the HRA survives because the political costs of repeal are too high, it survives for political reasons, but the result — the continued domestic enforceability of Convention rights — is the same as if it survived for principled ones. The political constitution is supposed to work this way: rights are protected not by judicial supremacy but by the political unacceptability of violating them (Bellamy, 2007). On this view, the failure of the Bill of Rights Bill demonstrates that political accountability can protect rights, even when the government’s initial impulse is to restrict them.
The difficulty with this optimistic reading is that it assumes a functioning system of political accountability. Where the executive commands a large parliamentary majority, where parliamentary scrutiny is limited by programming and the use of secondary legislation, and where public attention is fragmented, the political constraints on rights erosion are weakened. The REULA’s delegation of ministerial powers to amend substantive rights illustrates this: rights may be altered by statutory instrument without the political salience that would attend primary legislation. The risk, identified by Young (2023), is that the gradual erosion of rights through secondary legislation proceeds below the threshold of political attention, producing a democratic deficit that the political constitution is ill-equipped to address.
A Constitutional Principle Gap: The Absence of a Theory of Rights
Underlying both the REULA and the Bill of Rights Bill is a deeper constitutional deficiency: the absence of an articulated domestic theory of fundamental rights that is independent of supranational frameworks. The UK has historically relied on a residual model of liberty — citizens are free to do anything not prohibited by law — supplemented since 1998 by the HRA’s incorporation of Convention rights. EU membership added a further layer of rights derived from the Charter of Fundamental Rights and the general principles of EU law. The removal of these supranational layers exposes the thinness of the domestic rights floor.
The REULA removes the general principles of EU law — including proportionality, non-discrimination, and respect for fundamental rights — without substituting domestic equivalents. The Bill of Rights Bill proposed to restrict the domestic scope of Convention rights without articulating what alternative conception of rights should govern. Neither measure engaged with the question of what substantive rights commitments the UK’s constitutional order requires as a matter of domestic principle, independent of any supranational obligation.
This lacuna lends force to the charge of expediency. A government acting on constitutional principle would articulate a positive vision of rights protection — perhaps a domestic bill of rights rooted in common law values, parliamentary tradition, or a new constitutional settlement — rather than merely removing supranational constraints. The common law rights tradition, developed in cases such as R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 and Osborn v Parole Board [2013] UKSC 61, provides a potential foundation, but neither the REULA nor the Bill of Rights Bill built upon it in any systematic way. The government’s approach has been primarily subtractive — removing supranational protections — rather than constructive — building domestic alternatives. This is the hallmark of political expediency: addressing the constraint without addressing the underlying constitutional question.
Laws (2014) argued that the common law had developed to the point where it could recognise fundamental rights independently of the HRA, but acknowledged that this development remained incomplete and contested. The post-REULA, post-HRA-threat landscape has not seen any legislative or judicial programme to develop a comprehensive domestic rights framework. The gap between subtracting supranational rights protections and constructing domestic replacements is where the charge of expediency finds its strongest purchase.
Conclusion
The proposition that the UK’s relationship with supranational rights protection is now governed by political expediency rather than constitutional principle captures a genuine and significant constitutional development, but requires qualification. Both the REULA and the Bill of Rights Bill engage real constitutional arguments — about democratic legitimacy, parliamentary sovereignty, and the proper source of fundamental rights. These are not fabricated concerns; the anomalous status of retained EU law and the breadth of the HRA’s interpretive mandate raised legitimate questions that merited legislative attention. To that extent, the charge of pure expediency is overstated.
However, the manner in which these concerns have been pursued reveals a pattern that is difficult to reconcile with principled constitutional reform. The REULA deploys the rhetoric of parliamentary sovereignty while transferring substantive legislative power to ministers. The Bill of Rights Bill invoked democratic control while restricting access to justice and disregarding the government’s own independent review. Both initiatives were shaped primarily by short-term political agendas — post-Brexit deregulation and the Rwanda migration policy respectively — rather than by a coherent constitutional vision. Most tellingly, neither measure was accompanied by a constructive programme for domestic rights protection to replace the supranational frameworks being dismantled or weakened.
The stronger formulation, therefore, is not that constitutional principle has been replaced by political expediency, but that constitutional principle has been instrumentalised in the service of expediency. Sovereignty is invoked selectively, to remove constraints on executive power rather than to strengthen parliamentary accountability. Rights are described as matters for democratic control, but the mechanisms of control are designed to limit rather than to empower. The UK’s post-Brexit constitutional order does not lack principles; it lacks the consistent, honest application of the principles it claims to uphold. The most significant constitutional risk is not that the UK has abandoned supranational rights protection — it largely has not — but that the principled vocabulary of sovereignty and democracy is being systematically deployed to obscure an incremental concentration of power in the executive, conducted below the threshold of sustained political and legal scrutiny.
References
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Table of Cases
- Case 6/64 Costa v ENEL [1964] ECR 585
- Ghaidan v Godin-Mendoza [2004] UKHL 30
- Osman v United Kingdom (2000) 29 EHRR 245
- Osborn v Parole Board [2013] UKSC 61
- R (AAA) v Secretary of State for the Home Department [2023] UKSC 42
- R (Jackson) v Attorney General [2005] UKHL 56
- R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
- R (UNISON) v Lord Chancellor [2017] UKSC 51
- R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115
- R (Ullah) v Special Adjudicator [2004] UKHL 26
- Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)
Table of Legislation
- European Communities Act 1972
- Human Rights Act 1998
- European Union (Withdrawal) Act 2018
- Bill of Rights Bill 2022 (withdrawn)
- Retained EU Law (Revocation and Reform) Act 2023
- Illegal Migration Act 2023
- Safety of Rwanda (Asylum and Immigration) Act 2024
