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New Bill of Rights to replace existing Human Rights Act

On 17 October 2015, the Independent reported that the UK government intends to proceed with its intention to introduce a British Bill of Rights to replace the Human Rights Act 1998. Many had thought that the plans to introduce a Bill of Rights, which were a manifesto pledge of the Conservatives in the general election, had been put on the back burner since May 2015.

Adopted in 1998, coming into force in 2000, the Human Rights Act incorporated into British law the European Convention on Human Rights (“ECHR”).  The ECHR aims to hold to account the governments of the 47 countries who are members of the Council of Europe. It offers rights and protections against governmental excess to individuals: freedom of expression, fair trials and the prohibition of torture are among the many rights enshrined. However, many, predominantly Conservatives, believe that the Human Rights Act has been misinterpreted so that decisions of the European Court of Human Rights in Strasbourg could be regarded as taking precedence over the UK’s national courts. For example, the UK currently bans prisoners from voting which Strasbourg says contravenes ECHR.

In fact, the requirement in the Human Rights Act is only for the UK’s national courts to “take account” of the judgments of Strasbourg. UK courts are not bound by such judgments as they are by the judgments of the Court of Justice of the European Union in Luxembourg, although the House of Lords has interpreted this requirement to mean that if Strasbourg has clear and consistent jurisprudence, UK courts must follow it.

A 12 week public consultation on the proposed Bill of Rights will start in November or December 2015 and, after the consultation period, a Bill will go straight to the House of Commons. It is expected that the proposed Bill of Rights will be worded to reflect and mirror the language of the ECHR and to make it clear that the UK will not pull out of the ECHR. However, it is not clear exactly how it will relate to the ECHR, how it will require UK courts to consider judgments from Strasbourg and how it will ensure that the UK Supreme Court is the ultimate arbiter of human rights matters in the UK.