Raab proposes Bill of Rights to replace Human Rights Act

Proposals to replace the Human Rights Act 1998 with a Bill of Rights have been published by the UK Government – at the same time as the report of an independent review recommending only limited changes to the way the Act works.

The much trailed consultation, in the name of Lord Chancellor and Justice Secretary Dominic Raab, does not propose pulling out of the European Convention on Human Rights. It would retain all the substantive rights currently protected, while attempting to restate some rights, such as freedom of expression, and add others, in particular to trial by jury – but subject to the different ways in which that right is currently implemented in the different legal systems in the UK.

However the Government wants to restrict the number of cases brought before UK courts – and for cases taken to the European Court of Human Rights in Strasbourg, to attempt to insist on a greater freedom for the UK to interpret Convention jurisprudence through a "democratic shield". It would also "strengthen the primacy of the UK Supreme Court in determining the proper interpretation of such rights".

A permission stage would be introduced, to "ensure that spurious cases do not undermine public confidence in human rights". The Government also wants to require applicants to pursue any other claims first, so that human rights claims would either be excluded where other claims can be made, or could only be considered after other arguments.

It seeks to "restrain" the ability of the UK courts to use human rights law to impose positive obligations on public authorities without proper democratic oversight, and provide more certainty for public authorities to discharge their functions without fearing human rights litigation. There should be a "less expansive interpretive duty" for the courts than under the present s 3 of the 1998 Act.

The Government particularly wants to restrict the rights available to those subject to deportation orders, not being satisfied with the effect of reforms that have already restricted the scope for convicted offenders to avoid deportation.

Mr Raab said: "The UK will remain party to the ECHR and continue to meet its obligations under the convention and all other international human rights treaties. 

"However, ministers will ensure the UK Supreme Court has the final say on UK rights by making clear that they should not blindly follow the Strasbourg court. It will mean that rights are interpreted in a UK context, with respect for the country’s case law, traditions, and the intention of its elected law makers."

Review proposals

The independent review, under retired judge Sir Peter Gross, proposed the following changes to the 1998 Act:

• amending s 2 to clarify the priority of rights protection, applying UK domestic statute and case law first in line with UK Supreme Court decisions;
• amending s 3 to "clarify the order of priority of interpretation, coupled with increased transparency" in its use, and a discretion to make ex grate payments where a declaration of incompatibility is made;
• allowing suspended quashing orders where a challenge to a derogation order succeeds, and suspended or prospective quashing orders in relation to subordinate legislation as with judicial review generally;
• clarification of the extraterritorial and temporal scope of the Act.

Otherwise it concluded that the Act should essentially be left unchanged. However it calls for a programme of "civic and constitutional education" around human rights questions.

Consultation on the Government's proposals runs until 8 March 2022.