Human Rights Act reform consultation: Scottish Government response

11. How can the Bill of Rights address the imposition and expansion of positive obligations to prevent public service priorities from being impacted by costly human rights litigation? Please provide reasons.

201. The Scottish Government disagrees fundamentally with the idea that "positive obligations" are undesirable or unnecessarily burdensome.

202. The requirement for public authorities to take action to ensure that human rights are given full and substantive effect is an important and necessary feature of both the ECHR and the HRHA. It is one which also aligns very directly with the public expectation that public authorities will act lawfully, fairly and in keeping with the principles of natural justice.

203. Attempts to limit or remove the positive human rights obligations placed on public authorities would therefore be wholly unacceptable.

204. The proposal to do so would appear to be driven by the UK Government's ongoing desire to prevent and obstruct access to justice. Where a public authority has failed to act to protect and uphold human rights, those who have suffered as a consequence must be able to hold that public authority to account and to obtain justice, if necessary by means of recourse to the courts. That is a principle to which the Scottish Government is fully and unequivocally committed.

205. Rather than seeking to persuade public authorities in the UK to evade their human rights obligations, the UK Government should instead be acting decisively to remind all public bodies that action that ensures human rights are respected, protected and fulfilled is part of the core business of any institution which exists to serve the public.

206. If it is not willing to communicate that message, clearly and unequivocally, the UK Government should make clear which positive obligations it views as unnecessary and inconvenient. For instance, is it the position of the UK Government that public authorities should not have a positive obligation to consider the safety and well-being of an individual whose life may be in danger and should not be obliged to properly investigate if its actions result in loss of life^[46]?

207. Similarly, is it the UK Government's intention to prevent the victims of crime from holding the police accountable for a failure to properly investigate serious offences? It was precisely the existence of a positive obligation arising out of the HRA Act that enabled the victims of the "Black Cab Rapist" to challenge serious failings on the part of the Metropolitan Police^[47]. Can justice in such cases really be regarded as nothing more than "costly human rights litigation"?

208. Public bodies are funded by the taxpayer to deliver services which are in the public interest and which deliver public benefit. That objective cannot be achieved if proper account is not taken of all relevant human rights obligations. It is therefore essential that all public authorities mainstream human rights throughout their operations, including by taking full account of relevant positive obligations.

209. In Scotland, the commitment made by the Scottish Government and the wider public sector is clearly set out in the National Performance Framework ("NPF"). The NPF makes clear that public bodies have a key role to play in ensuring that Scotland is a nation where "We respect, protect and fulfil human rights and live free from discrimination"^[48].

210. The Scottish Government therefore rejects any attempt to prevent individuals and communities obtaining justice and opposes the proposals in the consultation paper in the strongest terms.

211. In relation to the detailed implications of the proposal, the Scottish Government would once again underline the very real difficulties which will arise if there is any substantive divergence between the rights set out in the proposed "modern Bill of Rights" and those set out in the ECHR and given effect through the judgments of the ECtHR. The existence of positive obligations is a prime example of this difficulty.

212. Whatever may be done by means of domestic legislation to exclude such obligations, they will continue to exist as an integral feature of the rights enshrined in the ECHR.

213. The practical consequence of divergence would simply be that individuals who are unable to obtain justice in the domestic courts will be forced to seek a remedy in Strasbourg. Positive obligations will continue to be recognised by the ECtHR and the result will be an ever-increasing list of cases in which the Court has found against the UK both in relation to the initial, substantive breach and in relation to the absence of the effective remedy required under Article 13 of the ECHR.

214. Such an outcome would run directly counter to the purposes of the HRA in enabling individual litigants to vindicate their human rights in the domestic courts. It would also, in the process, do further unnecessary damage to the UK's international reputation and its standing within the Council of Europe.