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Justice Secretary issues consultation on replacing Human Rights Act with Bill of Rights

The Deputy Prime Minister and Secretary of State for Justice has unveiled plans to revise and replace the Human Rights Act 1998 with a new Bill of Rights.

In a command paper Dominic Raab said the Government would “restore common sense to the application of human rights in the UK” while remaining faithful to the basic principles of human rights, which were signed up to via the original European Convention on Human Rights”.

He said: “The Bill of Rights will protect essential rights, like the right to a fair trial and the right to life, which are a fundamental part of a modern democratic society. But we will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society.

“Our reforms will be a check on the expansion and inflation of rights without democratic oversight and consent, and will provide greater legal certainty.”

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The Justice Secretary claimed the proposed Bill of Rights would make sure a proper balance is struck between individuals’ rights, personal responsibility, and the wider public interest. “It will strengthen the role of the UK Supreme Court in the exercise of the judicial function, preserve Parliament’s democratic prerogatives in the exercise of the legislative function, and support the integrity of the UK, while respecting the devolution settlements.”

The command paper said the Bill of Rights will:

  • retain all the substantive rights currently protected under the Convention and the Human Rights Act 1998. “Some rights, such as the right to freedom of expression…..will be strengthened and others, such as the right to trial by jury, added, reflecting the UK’s specific history and traditions”;
  • empower domestic courts to apply human rights in the UK context, taking into account the UK’s common law traditions and judicial practice amongst other common law nations, not merely the case law of the Strasbourg Court, and strengthen the primacy of the UK Supreme Court in determining the proper interpretation of such rights;
  • provide greater clarity regarding the interpretation of certain rights, such as the right to respect for private and family life, “by guiding the UK courts in interpreting the rights and balancing them with the interests of our society as a whole”;
  • implement a permission stage, similar, but not identical, to those in other branches of law, “to ensure that spurious cases do not undermine public confidence in human rights and strengthen the courts’ discretion when granting remedies for human rights breaches”;
  • restrain the ability of the UK courts to use human rights law to impose ‘positive obligations’ onto public authorities without proper democratic oversight;
  • make sure that the UK courts are not required to alter or interpret legislation contrary to Parliament’s clearly expressed democratic will;
  • provide more certainty for public authorities to discharge the functions Parliament has given them, “without the fear that this will expose them to costly human rights litigation”;
  • safeguard the vital protection for the right to life and the absolute prohibition on torture, “confirming that people should not be deported to face torture (or inhuman or degrading treatment or punishment) abroad, whilst ensuring that other rights in the Act cannot be used to frustrate the deportation of serious criminals and terrorists”;
  • recognise that responsibilities exist alongside rights, and that these should be reflected in the approach to balancing qualified rights and the remedies available for human rights claims; and
  • enact a process, centred on Parliament, for assessing the implications of judgments from the Strasbourg Court for the UK, “including providing a ‘democratic shield’ preserving Parliamentary sovereignty in the exercise of the legislative function”.

Dominic Raab said: “Our plans for a Bill of Rights will strengthen typically British rights like freedom of speech and trial by jury, while preventing abuses of the system and adding a healthy dose of common sense.”

The consultation runs until 8 March 2022.

The report of the Independent Review of the Human Rights Act, chaired by Sir Peter Gross, has also been published today (14 December).

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