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
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he may by order make such amendments to the primary legislation as he
considers necessary.
(4)
This section also applies where the provision in question is in subordinate
legislation and has been quashed, or declared invalid, by reason of
incompatibility with a UK right.
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(5)
If the legislation is an Order in Council, the power conferred by subsection (2)
or (3) is exercisable by Her Majesty in Council.
(6)
In this section “legislation” does not include a Measure of the Church
Assembly or of the General Synod of the Church of England.
(7)
Schedule 2 makes further provision about remedial orders.
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Other rights and proceedings
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Safeguard for existing human rights
A person’s reliance on a UK right does not restrict—
(a)
any other right or freedom conferred on him by or under any law
having effect in any part of the United Kingdom; or
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(b)
his right to make any claim or bring any proceedings which he could
make or bring apart from sections 8 to 10.
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Freedom of expression
(1)
This section applies if a court is considering whether to grant any relief which,
if granted, might affect the exercise of the UK right to freedom of expression.
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(2)
If the person against whom the application for relief is made (“the
respondent”) is neither present nor represented, no such relief is to be granted
unless the court is satisfied—
(a)
that the applicant has taken all practicable steps to notify the
respondent; or
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(b)
that there are compelling reasons why the respondent should not be
notified.
(3)
No such relief is to be granted so as to restrain publication before trial unless
the court is satisfied that the applicant is likely to establish that publication
should not be allowed.
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(4)
The court must have particular regard to the importance of the UK right to
freedom of expression and, where the proceedings relate to material which the
respondent claims, or which appears to the court, to be journalistic, literary or
artistic material (or to conduct connected with such material), to—
(a)
the extent to which—
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(i)
the material has, or is about to, become available to the public;
or
(ii)
it is, or would be, in the public interest for the material to be
published;
(iii)
any relevant privacy code.
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(5)
In this section—
“court” includes a tribunal; and

Human Rights Act 1998 (Repeal and Substitution) Bill
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“relief” includes any remedy or order (other than in criminal
proceedings).
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Freedom of thought, conscience and religion
(1)
If a court’s determination of any question arising under this Act might affect
the exercise by a religious organisation (itself or its members collectively) of the
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UK right to freedom of thought, conscience and religion, it must have
particular regard to the importance of that right.
(2)
In this section “court” includes a tribunal.
Parliamentary procedure
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Statements of compatibility
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(1)
A Minister of the Crown in charge of a Bill in either House of Parliament must,
before Second Reading of the Bill—
(a)
make a statement to the effect that in his view the provisions of the Bill
are compatible with the UK rights (“a statement of compatibility”); or
(b)
make a statement to the effect that although he is unable to make a
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statement of compatibility the government nevertheless wishes the
House to proceed with the Bill.
(2)
The statement must be in writing and be published in such manner as the
Minister making it considers appropriate.
Human Rights Act 1998 and European Convention on Human Rights
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Repeal of Human Rights Act 1998
The Human Rights Act 1998 is repealed.
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Effect of European Convention on Human Rights
No—
(a)
provision of the Convention,
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(b)
judgment, decision, declaration or opinion of the European Court of
Human Rights,
(c)
opinion or decision of the European Commission of Human Rights, or
(d)
decision of the Committee of Ministers taken under the Convention,
whenever made or given, shall be regarded as binding on any person
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(including any public authority).
Supplemental
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Orders etc under this Act
(1)
Any power of a Minister of the Crown to make an order under this Act is
exercisable by statutory instrument.
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Human Rights Act 1998 (Repeal and Substitution) Bill
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(2)
The power of the Lord Chancellor or the Secretary of State to make rules (other
than rules of court) under section 2(4) or 8(12) is exercisable by statutory
instrument.
(3)
No order may be made by the Lord Chancellor or the Secretary of State under
section 8(14) unless a draft of the order has been laid before, and approved by,
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each House of Parliament.
(4)
The power of a Northern Ireland department to make—
(a)
rules under section 2(4)(c) or 8(12)(c), or
(b)
an order under section 8(14),

is exercisable by statutory rule for the purposes of the Statutory Rules
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(Northern Ireland) Order 1979.
(5)
Any rules made under section 2(4)(c) or 8(12)(c) shall be subject to negative
resolution; and section 41(6) of the Interpretation Act (Northern Ireland) 1954
(meaning of “subject to negative resolution“) shall apply as if the power to
make the rules were conferred by an Act of the Northern Ireland Assembly.
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(6)
No order may be made by a Northern Ireland department under section 8(14)
unless a draft of the order has been laid before, and approved by, the Northern
Ireland Assembly.
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Interpretation etc
In this Act—
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“amend” includes repeal and apply (with or without modifications);
“approved by resolution in Parliament” means—
(a)
approved by a resolution of each House of Parliament, or
(b)
if the subordinate legislation only needed the approval of one
House of Parliament under its parent legislation, approved by a
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resolution of that House;
“UK rights” means the UK rights and freedoms set out in Schedule 1, and
“UK right” means the relevant one of those or any one of those,
according to the context;
“the Convention” means the Convention for the Protection of Human
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Rights and Fundamental Freedoms, agreed by the Council of Europe at
Rome on 4th November 1950 as it has effect for the time being in
relation to the United Kingdom;
“declaration of incompatibility” means a declaration under section 4;
“Minister of the Crown” has the same meaning as in the Ministers of the
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Crown Act 1975;
“Northern Ireland Minister” includes the First Minister and the deputy
First Minister in Northern Ireland;
“primary legislation” means any—
(a)
public general Act;
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(b)
local and personal Act;
(c)
private Act;
(d)
Measure of the Church Assembly;
(e)
Measure of the General Synod of the Church of England;
(f)
Order in Council—
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(i)
made in exercise of Her Majesty’s Royal Prerogative;

Human Rights Act 1998 (Repeal and Substitution) Bill
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(ii)
made under section 38(1)(a) of the Northern Ireland
Constitution Act 1973 or the corresponding provision of
the Northern Ireland Act 1998; or
(iii)
amending an Act of a kind mentioned in paragraph (a),
(b) or (c);
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and includes an order or other instrument made under primary
legislation (otherwise than by the Welsh Ministers, the First
Minister for Wales, the Counsel General to the Welsh Assembly
Government, a member of the Scottish Executive, a Northern
Ireland Minister or a Northern Ireland department) to the
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extent to which it operates to bring one or more provisions of
that legislation into force or amends any primary legislation;
“remedial order” means an order under section 11;
“subordinate legislation” means any—
(a)
Order in Council other than one—
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(i)
made in exercise of Her Majesty’s Royal Prerogative;
(ii)
made under section 38(1)(a) of the Northern Ireland
Constitution Act 1973 or the corresponding provision of
the Northern Ireland Act 1998; or
(iii)
amending an Act of a kind mentioned in the definition
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of primary legislation;
(b)
Act of the Scottish Parliament;
(c)
Measure of the National Assembly for Wales;
(d)
Act of the National Assembly for Wales;
(e)
Act of the Parliament of Northern Ireland;
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(f)
Measure of the Assembly established under section 1 of the
Northern Ireland Assembly Act 1973;
(g)
Act of the Northern Ireland Assembly;
(h)
order, rules, regulations, scheme, warrant, byelaw or other
instrument made under primary legislation (except to the
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extent to which it operates to bring one or more provisions of
that legislation into force or amends any primary legislation);
(i)
order, rules, regulations, scheme, warrant, byelaw or other
instrument made under legislation mentioned in paragraph (b),
(e), (f) or (g) or made under an Order in Council applying only
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to Northern Ireland;
(j)
order, rules, regulations, scheme, warrant, byelaw or other
instrument made by a member of the Scottish Executive, Welsh
Ministers, the First Minister for Wales, the Counsel General to
the Welsh Assembly Government, a Northern Ireland Minister
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or a Northern Ireland department in exercise of prerogative or
other executive functions of Her Majesty which are exercisable
by such a person on behalf of Her Majesty;
“transferred matters” has the same meaning as in the Northern Ireland
Act 1998; and
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“tribunal” means any tribunal in which legal proceedings may be
brought.