Human Rights Act reform consultation: Scottish Government response

10. How else could the government best ensure that the courts can focus on genuine human rights abuses?

193. The Scottish Government does not accept the premise on which the proposals are based.

194. It is asserted by the UK Government, without the presentation of any convincing evidence, that the courts are routinely asked to deal with spurious or trivial human rights cases, which ought to be excluded from consideration.

195. In reality, the UK Government's true difficulty with the HRA is that cases can be brought against it which are unwelcome and inconvenient, and which threaten to expose errors, negligence, flawed decision-making and (in some instances) a flagrant disregard for human rights.

196. That is an entirely different proposition on which to found proposals for "reform". The fact that a case is inconvenient and potentially damaging to government does not, on any analysis, imply that it is somehow spurious or trivial.

197. Indeed, the whole point of the human rights mechanisms put in place after the Second World War is that individual members of society should be protected from the potential depredations of callous, insensitive and overly-powerful state institutions which are happy to countenance "collateral damage" in pursuit of ideological goals. What may appear as "trivial" to a large public body intent on implementing some major strategic project, may be of existential importance to the individuals most likely to be impacted by that policy.

198. Attempts by the executive to draw a distinction between human rights abuses which are "genuine" and violations which are merely 'fanciful' or 'unimportant', reveal a deep and fundamental misunderstanding of both the principles and practice of human rights. That is a sad indictment of the extent to which the current UK Government has abandoned the UK's historic role as a leading advocate of internationally-recognised rights and freedoms which are, by definition, universal and inalienable in nature.

199. In relation to the substance of the proposal, the Scottish Government would draw particular further attention to the importance of preserving and upholding judicial independence.

200. It is fundamentally a matter for the courts to examine the facts of each individual case and to determine whether or not the claims which are presented in court have any legal substance. That is a function which necessarily belongs to the judiciary and it is one which must not be interfered with by the executive. Judges in the UK are already more than capable of identifying cases which have no legal merit and they already have adequate powers to ensure that such claims do not waste court time, whilst simultaneously protecting the right to a fair hearing.