The Human Rights Act 1998 would be replaced with a ‘bill of rights’ under proposals unveiled by the lord chancellor this morning. Apart from much-trailed measures to curb challenges to deportation orders, the legislation will have a particular focus on 'quintessentially UK rights, such as freedom of speech and the right to trial by jury', Dominic Raab MP said. 

Introducing a 118-page command paper on the proposals, Raab said the proposals 'reflect the government’s enduring commitment to liberty under the rule of law'.

The much-trailed reforms appear to go further than those proposed by the Independent Review of the Human Rights Act set up a year ago by Raab’s predecessor, Robert Buckland. However the government has backed the review’s recommendations for amending section 2 of the Human Rights Act, which requires UK courts to ‘take into account’ Strasbourg decisions. This has 'indirectly resulted in the supremacy of the UK Supreme Court being undermined by Strasbourg decisions,' the paper states. 

Dominic Raab

Raab: Reforms will include protections for free speech and trial by jury

Source: Jeff Gilbert/Shutterstock

The government’s proposed measure would require UK courts first to consider whether a rights issue can be resolved domestically before considering European convention rights or Strasbourg case law. 

On trial by jury, the paper cites Magna Carta and the 1689 Bill of Rights, proposing that 'there may be scope to recognise trial by jury in the bill of rights'. However this would apply only so far as the right to trial by jury is prescribed by each UK jurisdiction.

On freedom of expression, the bill of rights would 'provide more general guidance on how to balance the right to freedom of expression with competing rights' rather than leaving this to the courts. The measure would make specific provision to ensure the protection of journalists' sources. 

Overall the new measure will restore a 'sharper focus on fundamental rights', including by ensuring that 'unmeritorious cases' are filtered out at an earlier stage. A new 'permissions stage' would require claimants to demonstrate that they have suffered a 'significant disadvantage' before a human rights claim can be heard in court. However it would include an 'overriding public importance' provision to over-ride the permissions stage, the command paper states. Views are sought on how the government can best ensure that the courts focus on 'genuine human rights abuses'. 

The consultation runs to 8 March 2022.

Raab told the House of Commons this lunchtime that the reforms will prevent serious criminals from relying on article 8 (right to respect for private and family life) to prevent deportation, citing once again the example of a convicted drug dealer who was convicted of domestic abuse. Raab said article 8 claims make up around 70% of all successful human rights challenges by foreign national offenders against deportation orders.

He described the UK's independent judiciary and parliamentary sovereignty as the ‘cornerstone and foundations of our democracy’. With that in mind, the government wants to ‘sharpen’ the separation of powers by reforming the section 2 duty to take account of Strasbourg case law. This, he said, ‘has at various times been interpreted as a duty to match Strasbourg jurisprudence which is neither necessary nor desirable’. The UK's Supreme Court would be the 'ultimate judicial arbiter' for interpreting Convention rights in this country.

Justifying the proposal to introduce a ‘permission stage’, Raab said ‘one of the consistent complaints we hear from the public is that human rights can be subject to abuse’.

The approach to remedies will also be reformed, so that the courts give 'greater consideration to the behaviour of the claimant and wider public interest' when considering compensation. 'It isn't right that those who have broken the law can then reach out and claim human rights to claim large chunks of compensation at the taxpayer and wider public's expense,' Raab said.