Human Rights Act 1998 (Repeal and Substitution) Bill CONTENTS Introduction 1 United Kingdom Bill of Rights and Responsibilities 2 Interpretation of UK rights Legislation 3 Interpretation of legislation 4 Declaration of incompatibility 5 Right of Crown to intervene 6 Certain subordinate legislation Public authorities 7 Acts of public authorities 8Proceedings 9 Judicial remedies 10 Judicial acts Remedial action 11 Power to take remedial action Other rights and proceedings 12 Safeguard for existing human rights 13 Freedom of expression 14 Freedom of thought, conscience and religion Parliamentary procedure 15 Statements of compatibility Human Rights Act 1998 and European Convention on Human Rights 16 Repeal of Human Rights Act 1998 17 Effect of European Convention on Human Rights Bill 31 55/2 ii Human Rights Act 1998 (Repeal and Substitution) Bill Supplemental 18 Orders etc under this Act 19 Interpretation etc 20 Consequential amendments 21 Short title, commencement, application and extent Schedule 1 — United Kingdom Bill of Rights and Responsibilities Schedule 2 — Remedial orders 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. E 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 BParliament assembled, and by the authority of the same, as follows:— Introduction 1 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. 2 Interpretation of UK rights 5 (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 10 (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 15 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 20 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. Bill 31 55/2 2 Human Rights Act 1998 (Repeal and Substitution) Bill (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— 5 (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— 10 (i) which deals with transferred matters; and (ii) for which no rules made under paragraph (a) are in force. Legislation 3 Interpretation of legislation (1) When reading and giving effect to legislation in light of the UK rights, the 15 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. 20 4 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. 25 (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), 30 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; 35 (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 40 of Appeal; Human Rights Act 1998 (Repeal and Substitution) Bill 3 (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 5 provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made. 5 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. 10 (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, 15 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 20 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 25 “leave” means leave granted by the court making the declaration of incompatibility or by the Supreme Court. 6 Certain subordinate legislation (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of subordinate legislation— 30 (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 35 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 40 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 4 Human Rights Act 1998 (Repeal and Substitution) Bill 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. 5 (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 10 7 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 15 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 20 (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 25 (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.