Government releases consultation paper on the replacement of the Human Rights Act

The post below was first published on our Public Law blog.

The Ministry of Justice has today released a consultation paper outlining proposals for reform of the Human Rights Act 1998.

Reform has been anticipated for many years, having been brought to the forefront of public attention upon the release of the Government's 2019 manifesto. The consultation paper proposes an 'overhaul' of the Act in order to 'restore common sense to the application of human rights in the UK'. It states that it will remain faithful to the basic principles of human rights in the European Convention on Human Rights and proposes a new, distinctly British, Bill of Rights, designed to 'make sure a proper balance is struck between individuals' rights, personal responsibility, and the wider public interest'.

The consultation paper proposes the following in relation to the new Bill of Rights:

• The United Kingdom is to remain a party to the European Convention on Human Rights, and the Bill of Rights will retain the rights listed in Schedule 1 of the 1998 Act.
• Section 2 of the 1998 Act, which requires English courts to 'take into account' Strasbourg jurisprudence, is to be amended so as to provide that domestic Courts should firstly consider whether a rights issue can be solved by reference to domestic legislation or the common law. The aim is to ensure a wider range of jurisprudence is considered by English courts and to foster a more 'autonomous' approach to the development of human rights.
• Section 3 of the 1998 Act, which requires English Courts to interpret legislation as compatible with Convention rights 'so far as it is possible', is either to be repealed or replaced by language that is less strict: legislation should be interpreted as compatible with Convention rights where this could be done 'on an ordinary reading of the words' of the statute and where it would be 'consistent with the overall purpose of the legislation'.
• The right to a jury trial is to be added.
• The importance of the right to freedom of expression is to be emphasised, and the Courts should only grant relief impinging upon it when there are exceptional reasons.
• A permission stage for human rights claims is to be introduced to weed out frivolous or unmeritorious claims. The permission stage could require applicants to show that they have suffered a 'significant disadvantage' or, failing that, that their claim should be heard on the basis of 'overriding public importance'.
• Public authorities are not to be held liable when acting in accordance with the will of Parliament. Moreover, the extent of public authorities' 'positive' obligations in human rights law is to be limited.
• Guidance is to be provided to the Courts on the application of the principle of proportionality for qualified Convention rights. Whilst the precise wording has not been determined, guidance will involve requiring Courts to take into account the expressed view of Parliament.
• Deportations in the public interest are not to be inhibited by human rights claims.
• The role of personal responsibility is to be recognised in the human rights scheme. The Bill of Rights could, for example, use a remedy system to reduce rewards on account of the applicant's conduct.
• A process for assessing European Court of Human Rights' rulings is to be set up, with Parliament at the centre.

The consultation closes on 8 March 2022. The Ministry of Justice states that after it has received and considered the responses, it will in due course put forward legislative proposals to Parliament to revise and replace the Human Rights Act with a Bill of Rights.