Out-Law / Your Daily Need-To-Know

UK plan to replace Human Rights Act ‘could create real uncertainty’

Out-Law News | 16 Dec 2021 | 2:49 pm | 1 min. read

The Ministry of Justice (MoJ) has unveiled plans to revise and replace the 1998 Human Rights Act with a Bill of Rights that would distance UK courts from the case law of the European Court of Human Rights (ECHR).

The MoJ said the reforms would assert the primacy of the UK Supreme Court in “determining the proper interpretation” of human rights while retaining the UK’s commitment to the EHCR.

Launching a three-month consultation (123-page / 1.34MB PDF) on the proposals, justice secretary Dominic Raab said the reforms would also “prevent abuses of the system and add a healthy dose of common sense.”

David Thorneloe, public law expert at Pinsent Masons, said that the move “could create real uncertainty” if it means British courts must start “from a blank sheet of paper to develop an independent playbook of how rights should be interpreted and applied.”

“It is, however, a very welcome approach from the government to facilitate a full and detailed consultation and debate on such important constitutional reforms,” he added.

According to the command paper, the proposed Bill of Rights would create a “democratic shield” to preserve parliamentary sovereignty “in the exercise of the legislative function” and prevent British courts from using human rights law to impose “positive obligations” onto public authorities without “proper democratic oversight”.

It would also block the courts from altering or interpreting legislation “contrary to parliament’s clearly expressed democratic will” and allow public authorities to carry out their functions “without the fear that this will expose them to costly human rights litigation”.

Ministers also plan to implement a permission stage, similar to those in other branches of law, that prevent “spurious cases” from undermining public confidence in human rights, and “strengthen the courts’ discretion when granting remedies for human rights breaches”.

The Bill of Rights would strengthen the right to freedom of expression and add others, such as the right to trial by jury, and “guide the UK courts” to provide greater clarity regarding the interpretation of certain rights, such as the right to respect for private and family life.

Commenting on the proposed changes, Thorneloe said: “The government has presented a range of options; some minor adjustments, and some more radical reforms.”

“If its judicial review reforms currently going through parliament are any guide, then it is likely the more radical reforms will be dropped in the face of strong opposition, before this is turned into legislation,” he added.