Human Rights Act 1998 (Repeal and Substitution) Bill

Session 2012 - 13
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Human Rights Act 1998 (Repeal and Substitution) Bill

Human Rights Act 1998 (Repeal and Substitution) Bill
1

A
Bill
To
repeal the Human Rights Act 1998 and related legislation; to make provision
for a bill of rights and responsibilities to apply to the United Kingdom; and for
connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Introduction
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United Kingdom Bill of Rights and Responsibilities
Schedule 1 to this Act (United Kingdom Bill of Rights and Responsibilities) sets
out the UK rights, freedoms and responsibilities.
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Interpretation of UK rights
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(1)
A court or tribunal determining a question which has arisen in connection with
a UK right may take account of a judgment of—
(a)
a court in Australia, Canada, New Zealand, the United States of
America or any country having a common law-based judicial system;
(b)
the European Court of Human Rights; or
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(c)
a court in any other jurisdiction which may be relevant to the UK right
under consideration,

but shall be bound to follow the judgments of higher courts in the United
Kingdom, in accordance with the usual rules of precedent (though, for the
avoidance of doubt, precedent relating to rights under the Convention shall
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not be binding when determining a question in connection with a UK right).
(2)
A court or tribunal determining a question which has arisen in connection with
a UK right shall take into account all the facts and circumstances of the case,
including the conduct of the person seeking to assert the UK right (including
his adherence to the responsibilities set out in Article 23 of Schedule 1) and
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whether it is fair, equitable and in the interests of justice for such UK right to
be applied in relation to the question at hand.

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(3)
Evidence of any judgment of which account may be taken under this section is
to be given in proceedings before any court or tribunal in such manner as may
be provided by rules.
(4)
In this section “rules” means rules of court or, in the case of proceedings before
a tribunal, rules made for the purposes of this section—
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(a)
by the Lord Chancellor or the Secretary of State, in relation to any
proceedings outside Scotland;
(b)
by the Secretary of State, in relation to proceedings in Scotland; or
(c)
by a Northern Ireland department, in relation to proceedings before a
tribunal in Northern—
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(i)
which deals with transferred matters; and
(ii)
for which no rules made under paragraph (a) are in force.
Legislation
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Interpretation of legislation
(1)
When reading and giving effect to legislation in light of the UK rights, the
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words and sentences of legislation must be construed in accordance with their
ordinary and natural meaning.
(2)
Where the meaning of legislation arrived at in accordance with subsection (1)
is ambiguous, it may be presumed that a possible meaning that is compatible
with the UK rights was intended, unless the contrary intention appears.
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Declaration of incompatibility
(1)
Subsection (2) applies in any proceedings in which a court determines whether
a provision of primary legislation is compatible with a UK right.
(2)
If the court is satisfied that the provision is incompatible with a UK right, it
may make a declaration of that incompatibility.
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(3)
Subsection (4) applies in any proceedings in which a court determines whether
a provision of subordinate legislation—
(a)
approved by resolution in Parliament, or
(b)
not approved by resolution in Parliament but required by primary
legislation (disregarding any possibility of revocation),
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is compatible with a UK right.
(4)
If the court is satisfied that the provision is incompatible with a UK right, it
may make a declaration of that incompatibility.
(5)
In this section “court” means—
(a)
the Supreme Court;
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(b)
the Judicial Committee of the Privy Council;
(c)
the Court Martial Appeal Court;
(d)
in Scotland, the High Court of Justiciary sitting otherwise than as a trial
court or the Court of Session;
(e)
in England and Wales or Northern Ireland, the High Court or the Court
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of Appeal;

Human Rights Act 1998 (Repeal and Substitution) Bill
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(f)
the Court of Protection, in any matter being dealt with by the President
of the Family Division, the Vice-Chancellor or a puisne judge of the
High Court.
(6)
A declaration under this section (“a declaration of incompatibility”)—
(a)
does not affect the validity, continuing operation or enforcement of the
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provision in respect of which it is given; and
(b)
is not binding on the parties to the proceedings in which it is made.
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Right of Crown to intervene
(1)
Where a court is considering whether to make a declaration of incompatibility,
the Crown is entitled to notice in accordance with rules of court.
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(2)
In any case to which subsection (1) applies—
(a)
a Minister of the Crown (or a person nominated by him),
(b)
a member of the Scottish Executive,
(c)
a Northern Ireland Minister,
(d)
a Northern Ireland department,
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is entitled, on giving notice in accordance with rules of court, to be joined as a
party to the proceedings.
(3)
Notice under subsection (2) may be given at any time during the proceedings.
(4)
A person who has been made a party to criminal proceedings (other than in
Scotland) as the result of a notice under subsection (2) may, with leave, appeal
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to the Supreme Court against any declaration of incompatibility made in the
proceedings.
(5)
In subsection (4)—
“criminal proceedings” includes all proceedings before the Court Martial
Appeal Court; and
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“leave” means leave granted by the court making the declaration of
incompatibility or by the Supreme Court.
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Certain subordinate legislation
(1)
Subsection (2) applies in any proceedings in which a court determines whether
a provision of subordinate legislation—
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(a)
not approved by resolution in Parliament, and
(b)
not required by primary legislation (disregarding any possibility of
revocation),

is compatible with a UK right.
(2)
If the court is satisfied that the provision is incompatible with a UK right, it
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may quash or declare invalid that provision, as well as other provisions of that
subordinate legislation that cannot legally or practically be separated from that
provision.
(3)
Where an act of a public authority is based on a provision of subordinate
legislation covered by subsection (1) and could not reasonably be regarded, in
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all the facts and circumstances of the case, as compatible with the UK rights, a
court may in relation to that act, in proceedings under section 8(2), grant such
relief or remedy, or make such order, within its powers as it considers just and

Human Rights Act 1998 (Repeal and Substitution) Bill
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appropriate, subject to the same conditions as apply under section 9 and save
that damages may not be awarded where—
(a)
the public authority was required to undertake that act by the
legislation, and
(b)
the legislation was not made by that public authority.
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(4)
In this section—
(a)
“court” includes a tribunal;
(b)
“public authority” has the same meaning as in section 7; and
(c)
an “act” of a public authority has the same meaning as in section 7.
Public authorities
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Acts of public authorities
(1)
It is unlawful for a public authority to act in a way which could not reasonably
be regarded, in all the facts and circumstances of the case, as compatible with
the UK rights.
(2)
Where an act of a public authority is not unlawful under subsection (1) a court
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or tribunal shall give effect to, enforce or uphold that act, subject to any other
relevant provision of law that is not a provision of this Act.
(3)
Subsection (1) does not apply to an act if—
(a)
as the result of one or more provisions of primary or subordinate
legislation, the authority could not have acted differently; or
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(b)
in the case of one or more provisions of primary or subordinate
legislation, the authority was acting so as to give effect to or enforce
those provisions.
(4)
In this section “public authority” includes—
(a)
a court or tribunal, and
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(b)
any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising
functions in connection with proceedings in Parliament.
(5)
In relation to a particular act, a person is not a public authority by virtue only
of subsection (4)(b) if the nature of the act is private.
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(6)
“An act” includes a failure to act but does not include a failure to—
(a)
introduce in, or lay before, Parliament a proposal for legislation; or
(b)
make any primary legislation or remedial order.
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Proceedings
(1)
A person who claims that a public authority has acted (or proposes to act) in a
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way which is made unlawful by section 7(1) may—
(a)
bring proceedings against the authority under this Act in the
appropriate court or tribunal, or
(b)
rely on the UK right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.
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(2)
Where section 7(1) does not apply to an act (or a proposed act) of a public
authority by virtue of section 7(3), a person may rely on the UK right or rights

Human Rights Act 1998 (Repeal and Substitution) Bill
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concerned in any legal proceedings to claim that the relevant legislation is
incompatible with the UK right or rights, on the ground that it authorises or
requires the public authority to undertake the act in question and that act could
not reasonably be regarded, in all the facts and circumstances of the case, as
compatible with the relevant UK right or rights.
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(3)
A person may only make a claim under subsection (2) if he is (or would be) a
victim of the act in question.
(4)
In subsection (1)(a) “appropriate court or tribunal” means such court or
tribunal as may be determined in accordance with rules; and proceedings
against an authority include a counterclaim or similar proceeding.
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(5)
If the proceedings are brought on an application for judicial review, the
applicant is to be taken to have a sufficient interest in relation to the unlawful
act only if he is, or would be, a victim of that act.
(6)
If the proceedings are made by way of a petition for judicial review in Scotland,
the applicant shall be taken to have title and interest to sue in relation to the
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unlawful act only if he is, or would be, a victim of that act.
(7)
Proceedings under subsection (1)(a) must be brought before the end of—
(a)
the period of three months beginning with the date on which the act
complained of took place; or
(b)
such longer or shorter period as the court or tribunal considers
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equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the
procedure in question.
(8)
In subsection (1)(b) and (2) “legal proceedings” includes—
(a)
proceedings brought by or at the instigation of a public authority; and
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(b)
an appeal against the decision of a court or tribunal.
(9)
For the purposes of this section, a person is a victim of an act only if he—
(a)
is not a public authority, and
(b)
is (or would be) directly affected by that act, or
(c)
is (or would be) subject to a real risk that he may be directly affected by
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that act, or
(d)
has a familial and strong link with a person who satisfies the criteria in
(a) to (c) but who cannot engage in proceedings, and this link means he
is seriously affected by that act.
(10)
In subsection (9)(a), “public authority” has the same meaning as in section 7;
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though a person who is only a public authority by virtue of section 7(4)(b) is
not a public authority for the purposes of subsection (9)(a) where the act in
question affects a function of his that is not of a public nature.
(11)
Nothing in this Act creates a criminal offence.
(12)
In this section “rules” means—
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(a)
in relation to proceedings before a court or tribunal outside Scotland,
rules made by the Lord Chancellor or the Secretary of State for the
purposes of this section or rules of court,
(b)
in relation to proceedings before a court or tribunal in Scotland, rules
made by the Secretary of State for those purposes,
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(c)
in relation to proceedings before a tribunal in Northern Ireland—

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(i)
which deals with transferred matters; and
(ii)
for which no rules made under paragraph (a) are in force,

rules made by a Northern Ireland department for those purposes,

and includes provision made by order under section 1 of the Courts
and Legal Services Act 1990.
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(13)
In making rules, regard must be had to section 10.
(14)
The Minister who has power to make rules in relation to a particular tribunal
may, to the extent he considers it necessary to ensure that the tribunal can
provide an appropriate remedy in relation to an act of a public authority which
is unlawful as a result of section 7(1) or in respect of which a remedy may be
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granted under section 6(3), by order add to—
(a)
the relief or remedies which the tribunal may grant; or
(b)
the grounds on which it may grant any of them.
(15)
An order made under subsection (14) may contain such incidental,
supplemental, consequential or transitional provision as the Minister making
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it considers appropriate.
(16)
“The Minister” includes the Northern Ireland department concerned.
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Judicial remedies
(1)
In relation to any act of a public authority which the court finds is unlawful, it
may grant such relief or remedy, or make such order, within its powers as it
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considers just and appropriate, unless the act was reasonable with regard to all
the circumstances, including a reasonable understanding of primary or
subordinate legislation applying to the public authority concerned.
(2)
But damages may be awarded only by a court which has power to award
damages, or to order the payment of compensation, in civil proceedings.
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(3)
No award of damages is to be made unless, taking account of all the
circumstances of the case, including—
(a)
any other relief or remedy granted, or order made, in relation to the act
in question (by that or any other court), and
(b)
the consequences of any decision (of that or any other court) in respect
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of that act,

the court is satisfied that the award is necessary to afford just satisfaction to the
person in whose favour it is made.
(4)
In determining—
(a)
whether to award damages, or
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(b)
the amount of an award,

the court must not make any greater award than would have been made by the
European Court of Human Rights in such a case.
(5)
A public authority against which damages are awarded is to be treated—
(a)
in Scotland, for the purposes of section 3 of the Law Reform
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(Miscellaneous Provisions) (Scotland) Act 1940 as if the award were
made in an action of damages in which the authority has been found
liable in respect of loss or damage to the person to whom the award is
made;

Human Rights Act 1998 (Repeal and Substitution) Bill
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(b)
for the purposes of the Civil Liability (Contribution) Act 1978 as liable
in respect of damage suffered by the person to whom the award is
made.
(6)
In this section—
“court” includes a tribunal;
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“damages” means damages for an unlawful act of a public authority;
and“unlawful” means unlawful under section 7(1).
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Judicial acts
(1)
Proceedings under section 8(1)(a) in respect of a judicial act may be brought
only—
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(a)
by exercising a right of appeal;
(b)
on an application (in Scotland a petition) for judicial review; or
(c)
in such other forum as may be prescribed by rules.
(2)
That is subject to any rule of law which prevents a court from being the subject
of judicial review.
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(3)
In proceedings under this Act in respect of a judicial act done in good faith,
damages may not be awarded.
(4)
In this section—
“court” includes a tribunal;
“judge” includes a member of a tribunal, a justice of the peace (or, in
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Northern Ireland, a lay magistrate) and a clerk or other officer entitled
to exercise the jurisdiction of a court;
“judicial act” means a judicial act of a court and includes an act done on
the instructions, or on behalf, of a judge; and
“rules” has the same meaning as in section 8(12).
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Remedial action
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Power to take remedial action
(1)
This section applies if a provision of legislation has been declared under
section 4 to be incompatible with a UK right and, if an appeal lies—
(a)
all persons who may appeal have stated in writing that they do not
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intend to do so;
(b)
the time for bringing an appeal has expired and no appeal has been
brought within that time; or
(c)
an appeal brought within that time has been determined or abandoned.
(2)
If a Minister of the Crown considers that there are compelling reasons for
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proceeding under this section, he may by order make such amendments to the
legislation as he considers necessary to remove the incompatibility.
(3)
If, in the case of subordinate legislation, a Minister of the Crown considers—
(a)
that it is necessary to amend the primary legislation under which the
subordinate legislation in question was made, in order to enable the
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incompatibility to be removed, and
(b)
that there are compelling reasons for proceeding under this section,