Human Rights Act reform consultation: Scottish Government response

9. Should the permission stage include an 'overriding public importance' second limb for exceptional cases that fail to meet the 'significant disadvantage' threshold, but where there is a highly compelling reason for the case to be heard nonetheless? Please provide reasons.

184. The Scottish Government opposes both this proposal and the preceding suggestion that access to justice should be confined to cases which can pass the subjective threshold imposed by a test of "significant disadvantage"^[45].

185. For the avoidance of doubt, the firm view of the Scottish Government is that any violation of human rights is a serious matter, and is necessarily of significance not just to the individuals or communities who are directly affected, but also to society as a whole.

186. Drawing a distinction of the kind set out in the consultation paper is therefore unnecessary. Indeed, to do so appears illogical. Any case which is of public importance will necessarily be significant to the individual affected and it is hard to see how a case might, on the first test, be assessed as essentially trivial in nature, but then be considered to be of "overriding public importance".

187. The dangers of proceeding in this way, including the potential for unintended and irrational consequences, can be illustrated by a variety of hypothetical scenarios in which the relative wealth of an individual might become a factor in determining whether they are entitled to seek a human rights remedy in the courts.

188. Would it, for example, be the case that someone who is relatively wealthy would be barred from vindicating their rights because the loss they have suffered is considered "insignificant" when viewed in the context of their overall circumstances? By the same token, would a person of limited means find that they are unable to pursue a claim because the impacts (such as loss of access to social security payments) are deemed by the UK Government to be unimportant, on the basis that the sums of money involved are relatively small – however critical they may be in enabling the individual concerned to pay for the fundamental necessities of life?

189. Scenarios of this kind present an alarming prospect. They raise the very real possibility that access to human rights remedies in the UK could become subject to an unprecedented and unwarranted "means test" barrier. Such a test would exclude the ability of individuals to seek a remedy in the courts based simply on the UK Government's subjective belief that the loss they have suffered is somehow unimportant.

190. The further consequence of the proposals would then appear to be that the only means by which an individual in this position could obtain justice would be by persuading the court to hear their claim on the grounds that it engages principles which are of "overriding public interest".

191. To require an individual applicant to, in effect, bring a test case addressing general principles of public policy – as opposed to seeking an individual remedy – would itself create a practical barrier which hinders access to justice. In reality, it is unlikely that such a challenge would be within the means of most potential applicants unless they are able to secure the support and assistance of a well-funded third party.

192. All of these potential outcomes are clearly unacceptable in terms of human rights principle and they would be inconsistent not only with the general requirement to ensure access to justice for all but also with the specific obligation established by Article 13 of the ECHR. Unintended consequences of this kind illustrate the extent to which the proposals set out in the paper have not been properly thought through by the UK Government and serve to further underline why the plans set out in the consultation paper should be firmly rejected.