New ‘bill of rights’ will allow UK courts to diverge from ECHR rulings

Ministers are planning legislation to end the requirement of UK courts to follow human rights rulings from the European Court of Human Rights, making clear that the Supreme Court is the ultimate judicial decision maker.

Dominic Raab, deputy prime minister, will introduce the measures in a new bill of rights to be placed before parliament on Wednesday. The bill has triggered concern from the legal profession and human rights groups, which call it a “power grab” by the state.

The proposals will mean UK courts will not always have to follow case law of the European Court of Human Rights based in Strasbourg.

The bill contains measures to strengthen free speech. It will also make it easier to deport foreign criminals by restricting their right to appeal using human rights arguments.

The bill of rights, which is to replace the 1998 Human Rights Act, will take aim at injunctions issued by the Strasbourg court, such as that made last week to block the government’s first flight of asylum seekers to Rwanda. The bill will make clear these so-called “interim measures” are not binding on UK courts.

Last week, the European Court of Human Rights granted the emergency injunction for a passenger on the Kigali-bound flight preventing his deportation until after a High Court challenge on the legality of the government’s Rwanda policy is decided next month.

Strasbourg’s dramatic intervention in effect scuppered the government’s flagship asylum seeker policy and deeply angered Tory MPs, but the government had little option but to comply under the current legislation.

The move has prompted the prime minister Boris Johnson to say that the UK could consider pulling out of the human rights convention, which underpins a number of treaties such as the Good Friday Agreement which brought peace to Northern Ireland.

The new bill of rights will make it clear that the UK will remain a member of the European Convention on Human Rights and the Strasbourg court. However, the bill will allow judges the freedom to diverge from Strasbourg rulings, rather than automatically following them.

The 1998 Human Rights Act currently requires UK courts to “take account” of Strasbourg case, law but at various times courts have interpreted the law as a duty to follow the rulings.

Raab, who is also justice secretary, said: “This will end the requirement of UK courts to follow the Strasbourg courts. There is no doctrine of [case law] precedent in Strasbourg so there is no need for it — and it is not required by the convention.”

“We will be making it clear that since we have got a Supreme Court, it should do what it says on the tin, and be the ultimate judicial arbiter of the meaning of rights.”

Raab noted that on Rwanda policy, the government was “going to strive every sinew to get those flights up and running . . . by challenging as robustly as we can the legal arguments and we think we have a strong case”.

However, the bill of rights, which stems from a promise in the 2019 Tory party manifesto to “update” the 1998 Human Rights Act, may face a choppy passage through parliament.

It has already been attacked by human rights groups. Martha Spurrier, director of Liberty, said: “Let’s be clear: this bill is a power grab by a government that has no respect for our rights.”

I Stephanie Boyce, president of the Law Society, which represents lawyers in England and Wales, added: “Overall, the bill would grant the state greater unfettered power over the people, power which would then belong to all future governments, whatever their ideologies.”

The European Court of Human Rights in Strasbourg and the European Convention on Human Rights are separate from the European Union and its powerful European Court of Justice based in Brussels. Britain’s membership of the convention was unaffected by Brexit.