Government Presses Ahead With New Bill Of Rights

• Published date: 27 June 2022
• Subject Matter: Government, Public Sector, Human Rights
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Lidbetter, Nusrat Zar and Jasveer Randhawa

On 22 June, the Government laid its new Bill of Rights Bill before Parliament. The Bill has been anticipated since the Government invited responses to a consultation on the replacement of the Human Rights Act 1998 ("HRA") earlier this year. A summary of the proposals can be found here and an exposition of our views on the proposals here. In this blog post, we highlight some of the key changes that the Government has decided to include in the new Bill and provide some brief commentary on these changes.

Broadly, the Bill keeps fairly closely to the proposals laid out in the original consultation document, although there are some notable changes and additions. The new Bill of Rights is introduced in clause 1 as clarifying and re-balancing the relationship between UK courts, the European Court of Human Rights ("ECtHR") and Parliament. The starting point is that the HRA, under Schedule 5 paragraph 2 of the Bill, will be repealed in its entirety although the Government still intends for the UK to remain a party to the European Convention on Human Rights. However, our view is that the new Bill will likely bring UK human rights law out of step with that of the ECtHR. We therefore consider that this Bill, in its current form, would constitute a significant change to the UK's human rights regime that will make it harder for claimants to enforce their rights domestically. In that context it is interesting to note that the relevant minister has said that in his view the provisions of the Bill are compatible with the rights in the European Convention on Human Rights. We would expect vigorous debate as to whether that will be so.

The following are some of the most notable changes in the new Bill of Rights Bill:

- Section 2 of the HRA. - the place of Strasbourg caselaw. The new Bill removes the obligation in section 2 of the HRA that currently requires courts to 'take into account' Strasbourg jurisprudence. Instead clause 3(3)(b) provides explicitly that domestic courts may diverge from Strasbourg jurisprudence. In clause 3(1) of the Bill, the position of the Supreme Court as the ultimate judicial arbiter is emphasised. Moreover, a court may not adopt an interpretation that expands the protection conferred by a Convention right unless it has no reasonable doubt that the ECtHR would adopt the same interpretation (s3(3)(a)). These provisions accord with the Government's aim, stated in the consultation paper, of allowing UK human rights law to develop with reference to a...