Human Rights Act reform consultation: Scottish Government response

Introduction

1. In responding to the current consultation, the Scottish Government wishes to make clear that it disagrees, as a matter of fundamental principle, with the proposition that the Human Rights Act should be replaced by a "modern Bill of Rights".

2. The Human Rights Act ("HRA") is one of the most important and successful pieces of legislation ever passed by the UK Parliament. It has a 20-year track record of delivering justice, including for some of the most vulnerable people in society, and it plays a critically important role in protecting human rights and fundamental freedoms throughout the whole of the United Kingdom. The proposals set out in the consultation paper represent a direct, and deeply-concerning, threat to these long-established protections.

3. The HRA is also woven directly into the fabric of Scotland's constitutional settlement. Changes to the existing statute would therefore be a constitutional matter with very real implications for the exercise of both legislative and executive competence by devolved institutions. As such, the Scottish Government is clear that no changes affecting Scotland should be made without the explicit consent of the Scottish Parliament.

4. The HRA is significant, too, in an international context and it serves as both an example of legislative best practice and as a very visible expression of the UK's historic record of global leadership in promoting human rights, democracy and the rule of law. That international leadership role is called directly into question by the ill-considered nature of much of what is proposed in the consultation paper.

5. The Scottish Government's responses to the specific questions posed in the consultation paper explore in further detail the serious and wide-ranging damage that would be done to human rights and fundamental freedoms, both in the UK and at the international level, were the UK Government to press ahead with its proposals.

6. Before addressing those specific questions, however, the Scottish Government wishes to record its broader disappointment and concern in relation to the overall approach which has been adopted by the UK Government.

The Independent Human Rights Act Review

7. The current consultation exercise is the second time in just over a year that the Scottish Government – together with many other organisations and individuals – has submitted a detailed response to a UK Government-initiated exercise seeking views on the effectiveness of the HRA.

8. It is therefore extremely disappointing that the UK Government has chosen to ignore not just the Scottish Government's own March 2021 submission to the Independent Human Rights Act Review ("IHRAR") but also the wealth of expert evidence made available to the IHRAR by some of the UK's most eminent legal and human rights practitioners and academics.

9. The overwhelming weight of that evidence demonstrated beyond argument that the HRA has been highly successful and effective. "Reform", of the kind now once again being proposed by the UK Government, is not just unnecessary, but highly undesirable.

10. In fact, as the consultation response from Amnesty International made clear:

"The HRA is a remarkably finely crafted statute [which] has been highly successful in its purpose: the protection of people's human rights … the HRA is in fact very well designed for its particular place in the UK's constitutional arrangements"^[1].

11. That assessment was shared by a wide spectrum of responses from Scotland, including those submitted by the Scottish Human Rights Commission^[2] and the Human Rights Consortium Scotland^[3]. The Faculty of Advocates replied in relation to key questions posed by the Review that "we do not consider that a case is made out for any significant change"^[4].

12. Such views were not confined to Scotland, with the Law Society of England and Wales making clear that:

"While there is significant evidence to demonstrate the value of the HRA in its current form, we have not seen convincing evidence pointing to the need for its amendment. Significant amendment risks … undermining access to justice and the rule of law"^[5].

13. There were many, many more responses in similar vein. Moreover, for its own part, the IHRAR panel found no convincing case for a radical overhaul of the HRA of the kind that is now being proposed.

14. It is therefore essential that proper account should now be taken of the overwhelming weight of evidence which demonstrates the utility, value and proven track record of the HRA as a statute which protects the public interest and defends the interests of individuals and communities throughout the UK.

15. For that reason, the Scottish Government would specifically request that its response to the IHRAR is taken into account as a supplemental component of the Scottish Government's response to the current consultation paper. The response itself is publicly-available and can be found on the Scottish Government website^[6].

The importance of effective checks and balances

16. Turning more specifically to the proposals which have now been put forward in the current consultation paper, the Scottish Government has particular concerns in relation to those elements of the proposed Bill of Rights which would exempt the actions of the executive from legal challenge and set aside long-established checks and balances designed to prevent the abuse of power.

17. Contained within the consultation are proposals that would restrict the ability of the courts to provide victims of human rights violations with an effective remedy. That is an alarming proposition.

18. It has long been a central principle of both constitutional democracy and administrative law in the UK that executive actions (including legislation made by ministers) can be challenged, and if necessary overturned, in the courts. That principle is one which the UK Government now appears to be trying to set aside.

19. The implication certainly seems to be that certain types of government decision, which can currently be scrutinised in the courts, should in future be immune from effective challenge. That is the thin end of a very dangerous wedge.

20. It also appears that the mere existence of a legislative provision could be treated as sufficient evidence that the actions of a public authority are in the public interest. That will apply not just in the case of primary legislation, which has been subject to detailed parliamentary scrutiny, but to the provisions of secondary legislation, made by Ministers.

21. All that will be required is that the public body is shown to be acting "in accordance with legislation" – irrespective of whether those actions are also compatible with the rights of individual members of the public, or with the UK's obligations under the European Convention on Human Rights ("the ECHR").

22. Related risks arise in connection with proposals to impose a "significant disadvantage" test in order to restrict access to the courts. This presents the very real prospect of encouraging, facilitating and excusing a culture of casual low-level violation of human rights by public authorities, who would be enabled – as a matter of law – to disregard the rights of any individual as long as the violation is kept below the "significant disadvantage" threshold.

23. Quite what constitutes a "significant disadvantage" is not however defined in the consultation and the very real risk exists that such a test (which is necessarily subjective in nature) will discriminate against those in society who are most vulnerable and at greatest risk of experiencing human rights abuses. That risk would be particularly acute for those on the margins of society, whose needs and interests may already be deprioritised by public policy and the decisions of public authorities.

24. Paradoxically, the subjective nature of the test would also be likely to result in a loss of legal certainty in a way that could cause significant difficulties for public authorities themselves.

Executive over-reach and the potential for the abuse of power

25. The net effect of changes such as those identified above, and in relation to the potential devolution consequences of the proposed "Bill of Rights", is such that the proposals might reasonably be characterised as facilitating a "power-grab" by UK ministers, in a way that diminishes the democratic and legal accountability of the executive^[7].

26. The need for such accountability is not some abstract, theoretical requirement. The proposals set out in the consultation paper matter because, if passed into law, they will directly impact the everyday lives of people throughout the UK. They matter also because – as Liberty and others have argued – they risk pushing the UK further down a slippery slope towards an illiberal and intolerant future in which the rights of every member of society are put at risk.

27. The Scottish Government would therefore particularly caution against any approach that is founded in the assumption that public authorities never make mistakes and that governments with large majorities can do no wrong.

28. For its part, the Scottish Government definitively rejects the idea that the checks and balances which constrain the exercise of executive power should be regarded as an inconvenience. Legal challenges, by the same token, cannot be dismissed as being no more than a cause of unnecessary expense and wasted time.

Learning from hard experience

29. The proposals set out in the consultation paper which propose dispensing with legal "obstacles" to the removal of foreign nationals from the UK provide an important illustrative example of the risks inherent in the approach being proposed by the UK Government.

30. In order to fast-track deportations, the consultation proposes eroding the right to have such decisions properly scrutinised by the courts.

31. Whilst the Scottish Government disagrees profoundly with many aspects of the UK's asylum and immigration policies, there is agreement that there will be some circumstances in which it is indeed in the public interest to remove an individual from the UK.^[8]

32. What is seriously problematic, however, is the proposition that such decisions should not be exposed to potential challenge, and review, in the courts.

33. The availability of recourse to the courts is important as a general legal and constitutional principle. But it also matters as a very practical safeguard against the abuse of human rights and the infringement of other legal rights.

34. It is particularly important in the case of deportations because the UK Government has, notoriously, been able to exclude or deport people from the UK in the past, even when doing so was entirely unjustified.

35. That was, of course, precisely the experience of innocent members of the Windrush generation who were incorrectly and unlawfully labelled as undesirable foreign nationals, and denied the right to continue living in the UK, despite being legally entitled to do so.

36. No amount of evidence or reasoned argument proved able to persuade the Home Office of the catastrophic errors which had occurred. Decisions had been made and government could not be wrong. The grave injustices which had been perpetrated were only addressed as a consequence of dedicated investigative journalism^[9] and subsequent parliamentary and public pressure for remedial action^[10].

37. The suggestion that such government decisions must be accepted without question, and that the supervisory role of the courts can simply be set aside, is therefore not just ill-conceived but dangerous. It is certainly a proposition that denies the hardest of facts and the most bitter of experience.

Further lessons from past failures

38. If the need for effective constraints on the exercise of power by public authorities requires to be further underlined, it is necessary to do no more than to recall a series of high-profile scandals and failures in which ordinary members of the public faced an uphill struggle to overturn bad decisions and obtain justice.

• Justice for those caught up in the Hillsborough disaster was only achieved in the face of serial obstruction by powerful public institutions. That it was obtained at all was a direct consequence of the protections provided by the HRA.
• The families of UK service personnel were able to rely on the HRA in order to hold the Ministry of Defence accountable for its failure to properly equip its own troops. It was the HRA, not the actions of UK Ministers, which ultimately helped deliver justice for brave individuals who risked, and unnecessarily lost, their lives on behalf of the UK.
• The scandalous long-term neglect and negligence which occurred within the Mid-Staffordshire NHS Foundation Trust was exposed as a consequence, amongst other factors, of the protections built in to the HRA.
• Victims of the "Black Cab Rapist" used the HRAin their successful legal challenge to the Metropolitan Police, which had repeatedly failed to properly investigate a catalogue of offences.

39. It is therefore very clear to the Scottish Government that the current protections put in place by the HRA must be rigorously and resolutely maintained. The Scottish Government is deeply concerned that they are, instead, likely to be dismantled by the cumulative effect of the proposals set out in the consultation paper.

European co-operation and international reputation

40. The Scottish Government has further concerns in relation to the proposals in the consultation paper which will serve, in practice, to detach the UK – incrementally and by stealth – from compliance with the ECHR and from the requirements of Council of Europe membership.

41. There are unwelcome echoes in this of the UK's approach to its former obligations as a member of the European Union^[11]. In the Scottish Government's view it is not tenable to adopt the position that the UK can both have its cake and eat it - by remaining as a member of the Council of Europe whilst simultaneously seeking to shrug off the obligations which are a necessary feature of membership.

42. Particularly problematic is the idea that the UK can remain as a State Party to the ECHR whilst simultaneously developing its own, separate, national interpretation of the rights which are set out in the ECHR.

43. Whilst the ECHR system does indeed provide scope for a national "margin of appreciation" and certainly does not require that every aspect of each State Party's legal and constitutional order is identical in its detail, there is a limit to the extent which any individual state can reasonably distance itself from the common standards and obligations established by the ECHR.

44. Moreover, were the interpretation of ECHR rights to diverge significantly in future from the wider European consensus (for example because the courts are prevented by the Bill of Rights from applying the accepted meaning of a particular right) this will merely result in cases having to be pursued in Strasbourg. It is very likely that the UK will lose such cases.

45. At present, the UK habitually wins 98% (and more)^[12] of the cases brought against it and it has one of the best records of any Council of Europe member state. To seek to alter that situation would, in the view of the Scottish Government, be an abdication of the UK's historic role as a champion of human rights.

46. The damage ultimately inflicted will affect not only the UK's own international standing and reputation. It will also serve to further undermine and weaken the international rules-based order at a time when peace and stability in Europe is under very direct threat.

47. There will also be further potentially significant consequences which are more directly linked to the importance of maintaining fully effective ongoing co-operation with the European Union. In particular, a range of activity which serves to protect public safety is directly linked to our ability to cooperate with operational partners in the EU and its member states.

48. These relationships are now governed by the UK-EU Trade and Cooperation Agreement ("TCA")^[13], which provides that law enforcement cooperation is conditional upon respecting the ECHR and "giving effect to the rights and freedoms in that Convention domestically" (article 524 TCA).

49. If the way in which ECHR rights are given effect domestically in the UK is fundamentally changed, to the extent that it becomes harder to reply upon those rights, there is the real risk that the EU could seek to suspend or terminate parts or all of the TCA, the outcome of which would be very negative for the people of Scotland.

Inaccuracy and misdirection

50. An important further concern which the Scottish Government wishes to highlight is the extent to which public discourse in relation to human rights in the UK, and with regard to the HRA, has been distorted by inaccurate or misleading claims.

51. The consultation paper, for example, contains a statement (on page 84) that "where a person is wanted for a crime, there should be no question of limiting the publication of their name and photograph because of their right to a private life".

52. This statement significantly misrepresents the judgment reached by the court in the case cited in the consultation paper at footnote 142 (R v Chief Constable of the Essex Police)^[14]. In reality, the scheme in question related to the "naming and shaming" of offenders (who were not currently wanted for a crime). In the end, the Court did not intervene in the operation of the scheme.

53. Whilst the consultation paper does more accurately reflect the facts of the case elsewhere (in paragraph 137 on page 40), it is clearly unhelpful that important proposals in Chapter 4 of the paper appear to be based on a misunderstanding, or perhaps a misrepresentation, of the actual effect of protections set out in the Human Rights Act.

54. This matters more generally because it is indicative of a broader tendency on the part of UK Ministers to present the HRA as constituting a threat to public protection and to the public interest. Indeed the consultation paper itself explicitly makes the claim (on page 28) that "public protection [is] put at risk by the exponential expansion of rights".

55. The truth however is that the HRA is a very necessary safeguard which was put in place by the UK Parliament for the specific purpose of ensuring that human rights can be vindicated in the UK's own courts. The HRA implements international obligations which the UK itself was instrumental in developing and promoting.

56. There have been a variety of previous instances in which significantly inaccurate claims have risked misdirecting public discourse in relation to human rights and the effects of the HRA.

57. A particularly high-profile example was the "Catgate" speech given by the then Home Secretary, Theresa May, in 2011^[15]. Such attacks on the HRA have recurred regularly. A similarly inaccurate claim was made by the current Secretary of State for Justice and Lord Chancellor in his speech to the 2021 Conservative Party conference^[16].

58. More recently, in an article in the Scotsman on 23 February the Secretary of State presented the effects of the Osman^[17] case in the following terms:

"human rights 'obligations'… force our police to allocate law enforcement resources and energy to protect serious criminals from each other. It sounds ridiculous, but … Police Scotland are legally obliged to protect rival gangsters from each other. That straitjacket obligation defies common sense, and inevitably displaces police time spent protecting the law-abiding public."^[18]

59. That interpretation is one which the Scottish Government would suggest is unnecessarily simplistic, to the point where it risks causing significant public misunderstanding of the effects of the HRA and of the ECHR.

60. As the facts of the case demonstrate, the Osman ruling addressed events in which a father was shot dead and his son badly injured by a stalker who had targeted the son. The police had failed to ensure that the family involved was made properly aware of the threat.

61. It should be self-evident that safeguards designed to prevent a situation of that kind being repeated are essential and must be retained. Indeed, it is hard to think of a more obvious "common sense" example of police resources being used to proper effect in order to protect the law-abiding public.

62. The effect of the proposals set out in the consultation paper would, however, be to undermine and remove existing positive obligations on public authorities (such as the police). They consequently create the very real risk that future protection would be unavailable to individuals in a similar situation. That cannot be acceptable.

63. The claims made in the Scotsman article also have other troubling implications. One appears to be the suggestion that "rival gangsters" should be allowed free rein to pursue murderous feuds and vendettas, and that in order to avoid "wasting" resources and energy the police should simply look the other way. That is a proposition which is not only ill-conceived but deeply irresponsible.

64. Inherent within it is the further idea that both the rule of law and human rights protections are somehow contingent and do not need to apply to certain types of person. Criminality and lawlessness can be ignored or condoned, it seems, as long as "bad" people are the victims.

65. What is not explained, of course, is quite where the threshold in such cases might actually be set. Where specifically would the cut-off point be, beyond which the police should ignore a credible threat to life? How serious, and how recent, would an individual's history of offending have to be in order for protection to be denied?

66. The even more alarming difficulty, however, is that a proposition of this kind inevitably exposes the general public to significant risk.

67. Criminals operate, by definition, without regard to the law and without concern for the standards of civilised society. In targeting each other and seeking to perpetrate serious criminal acts – up to and including murder – there is a very real danger that entirely innocent third parties may also be harmed, and may suffer serious injury or death as a result. If deterrent action can be taken to preclude that risk – including by issuing warnings to "rival gangsters" – it should be self-evident that doing so is very far from being "ridiculous".

68. In the view of the Scottish Government, the UK Government's tendency to over-simplify, misrepresent and politicise individual human rights cases in the way noted above is unhelpful and regrettable.

69. It is certainly not an approach that can deliver public policies which are properly founded in an accurate understanding of either the purpose or the effect of existing human rights safeguards. Oversimplification also necessarily fails to take proper account of the careful consideration given by the courts to the facts presented in complex cases. There is in turn a very real risk that public confidence in the judiciary and the courts, and in other public institutions, could be undermined.

70. The Scottish Government would therefore urge the UK Government to base its approach to the HRA firmly in a factually accurate analysis of the benefits delivered by the Act, and to abandon – in consequence – its current proposals for "reform".

Qualified support for minor amendments

71. In line with the emphasis on evidence-based policy-making set out above, the Scottish Government has made consistently clear that it does not object to the possibility of amendments to the existing HRA which have the effect of strengthening and improving human rights protections in the UK.

72. That undertaking by the Scottish Government, to consider all constructive proposals in an objective and open-minded manner, has been underlined in previous submissions and consultation responses.

73. In the context of the current consultation, the Scottish Government does see the potential for a number of minor, but nonetheless important, amendments to the existing HRA, and to related legislation.

74. Whilst explicitly rejecting the idea that the HRA should be replaced by a "modern Bill of Rights", the Scottish Government would be willing to support improvements which command genuine cross-party support and have the backing of civil society and the UK's National Human Rights Institutions ("NHRIs").

75. The potential for such improvements is addressed in more detail in response to the specific questions posed by the consultation. But in summary, the Scottish Government would be willing, in principle, to:

• support a minor amendment to the HRA which has the specific purpose of protecting journalists' sources.
• further explore the practicality of recording instances where the judgment handed down by a court relies upon the use of section 3.
• support changes to section 19 of the HRA in line with the comparable provision made in section 31 of the Scotland Act 1998, including by repealing section 19(1)(b) of the HRA.
• support changes to the definition of "public authority" in order to extend the current definition so that it is clear that "functions of a public nature" include, in particular, functions carried out under a contract or other arrangement with a public authority. That clarification should include functions carried out overseas on behalf of the UK Government, for example in the area of asylum and immigration.
• support adjustments to the Constitutional Reform and Governance Act 2010 in order to ensure that the Scottish Parliament is accorded the same recognition and respect as is given (under Part 2) to the UK Parliament, in situations where devolved competence is engaged by any new international treaty.

76. In light of this offer, the Scottish Government would welcome the opportunity for constructive discussions with the UK Government with a view to refocusing the current debate away from the harmful and unwelcome proposals in the current consultation paper and back towards a common commitment to the HRA in its current form.

77. Such discussions should be directed at developing proposals for minor changes to the existing HRA, in the above areas, and should ensure extensive, and meaningful, engagement with the UK's NHRIs and with civil society.

Summary

78. Subject to the specific minor exceptions noted above, the Scottish Government does not support the proposals set out in the consultation paper.

79. The Scottish Government is however willing to engage in constructive discussions with a view to pursuing potential improvements to the existing HRA which have the effect of strengthening and improving human rights protections in the UK.

80. The Scottish Government remains both disappointed and concerned by the approach adopted by the UK Government, and in particular by its decision to, in effect, disregard the extensive evidence previously submitted to the IHRAR.

81. The Scottish Government further believes that the UK Government has significantly misunderstood not just the importance and value of the HRA as a guarantor of human rights and fundamental freedoms in the UK but also the extent to which the rights enshrined in the HRA enjoy public support and directly benefit individuals, families and communities throughout the whole of UK society.

82. In consequence, the Scottish Government would urge the UK Government to abandon its plans to replace the HRA and to publicly re-commit to upholding, in full, the rights which are already very successfully protected by the HRA in its existing form.

83. The Scottish Government would also propose that UK Ministers give a firm undertaking that they will not pursue any action that has the practical effect, over time, of distancing or detaching the UK from its obligations as a State Party to the ECHR and as a member of the Council of Europe.

Scottish Government
March 2022