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Professor Helen Fenwick, from Durham Law School, calls attention to elements of the Human Rights Act that the UK government may change now that they have opened a consultation on a new bill of rights to replace it.

After years of discussing its intention to replace the Human Rights Act, the UK government has opened a consultation on a new bill of rights to replace it.

The Conservative party has had an uneasy relationship with the Human Rights Act over the years. A promise to repeal and replace it with a British bill of rights has appeared in election manifestos more than once. After Brexit, it was almost inevitable that a Conservative government would move to repeal the Human Rights Act – the act imported the European Convention on Human Rights (ECHR) into domestic law, giving it a particularly strong influence.

The proposed overhaul is intended in general to distance the UK from European ideas of human rights, allowing common law ideas and parliamentary determinations far greater leeway. Here are five elements to pay attention to:

Deportation and rights claims

The government says that “foreign criminals” are exploiting human rights claims, such as the right to respect for family life (Article 8 in the ECHR), to resist deportation. It suggests that the new bill of rights could include provisions limiting “a certain category of individuals” from avoiding deportation on human rights grounds.

it could be clarified that certain rights, such as the right to family life, cannot prevent the deportation of a certain category of individuals, for example, offenders sentenced to a term of imprisonment, or persons involved in terrorist-related activity.

In practice, this would likely mean that non-citizen offenders convicted of more serious offences, such as rape, could be more easily deported, regardless of their family life as established in the UK. But it would be a dramatic and discriminatory move since such people would be debarred from raising Article 8 arguments. Some individuals could still potentially bring claims at the Strasbourg court. Meanwhile, citizens convicted of the same offences not only could not be deported, but could also presumably rely on family life arguments.

A ‘permission stage’ in rights claims

Another proposal is to introduce a “permission” stage, which would require claimants to demonstrate that they had suffered “a significant disadvantage” before a claim could be heard in court. This is intended to filter out “frivolous or spurious” cases, which the government says “devalue” the concept of human rights. It considers allowing exceptional cases to proceed even though they fail to meet the threshold, where there is a highly compelling reason to do so.

If included and applied literally, this provision would mean that a number of claims failing to meet that threshold (including from people trying to escape deportation or extradition) would never be heard.

This proposal is clearly modelled on a similar “admissibility” provision in Article 35 of the ECHR. But Article 35(3) states that even if a significant disadvantage is not shown, the case could still be examined on its merits if it raises important human rights issues.

If the new bill of rights does not include the “highly compelling reason” provision suggested, Strasbourg’s permission stage would become less stringent than the domestic one. This means that some cases denied a full hearing domestically could still be heard at Strasbourg –- the exact opposite of what the government is hoping to achieve.

Strengthening press freedom

Another proposal aims to enhance press freedom of expression and limit “interference” with the press over privacy claims. This proposal was clearly prompted partly by the court of appeal’s recent judgment favouring privacy in Meghan Markle’s case against the Mail on Sunday.

The consultation document suggests that Strasbourg has tended to give priority to the right to privacy (Article 8) over free speech. In contrast, the Human Rights Act directs courts to have “particular regard to the importance” of the right to freedom of expression (Article 10), but that it does not give primacy to press freedom.

The government’s proposal is to include a provision in the bill of rights directing courts to give Article 10 priority when in conflict with Article 8 or with wider public interests. Again, privacy claimants who lose a domestic case could still bring their case to Strasbourg.

Right to trial by jury

The ECHR does not provide a specific right to a jury trial. The government suggests that there may be scope to include one in the bill of rights, given its “significant historical place” in UK legal tradition.

The new right would apply differently in the devolved administrations since its application would depend on the relevant law in each jurisdiction. This inclusion would be relatively uncontroversial, although it would not be likely to be of great significance in practice. It could also accord the bill of rights a British, rather than a European, feel.

Protecting public authorities

The government wants to give greater protection to public authorities (such as police forces or government departments) that it says need to be freer to “perform their functions”. This would make it more difficult for people to bring human rights cases against these bodies. Instead, the issue of possible incompatibility of the legislative provision in question (under which the authority was acting) with the ECHR could be considered at a later point by Parliament.

This would be intended to create an environment whereby such authorities would have more power to carry out their functions as Parliament intended. To do this it has suggested changing the wording of the Human Rights Act to prevent human rights claims against public authorities.

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