Human Rights Act reform consultation: Scottish Government response

12. We would welcome your views on the options for section 3:

• Option 1: Repeal section 3 and do not replace it.
• Option 2: Repeal section 3 and replace it with a provision that where there is ambiguity, legislation should be construed compatibly with the rights in the Bill of Rights, but only where such interpretation can be done in a manner that is consistent with the wording and overriding purpose of the legislation.

We would welcome comments on the above options, and the illustrative clauses in Appendix 2.

215. The suggestion that changes to section 3 of the HRA are required was comprehensively dismissed by the overwhelming majority of responses submitted to the IHRAR consultation.

216. Those responses included submissions from some of the UK's leading legal experts, who made clear that the HRA is already fully consistent with the UK's internal constitutional arrangements.

217. In particular, section 3 of the HRA has been very carefully drafted so as to avoid any infringement of the Westminster doctrine of Parliamentary sovereignty.

218. It is clear that section 3 as currently drafted is fully consistent with the principles on which the UK's current constitution is constructed. Within that context it quite clearly achieves a practical and pragmatic balance between the respective constitutional roles of the legislature, in making legislation, and the courts, in interpreting and applying that legislation.

219. In fact, when seen as part of the UK's current constitutional arrangements, section 3 can be regarded as providing a solution which is both elegant and pragmatic. It enables legislation to be read by the courts in a manner that integrates Westminster's intent in passing the HRA with its subsequent intent in making other statutory provision. The result is that the UK's domestic courts and tribunals already do interpret legislation in a manner consistent with the principles of parliamentary sovereignty and judicial deference.

220. Accordingly, the courts acknowledge that section 3 will not allow them to interpret ECHR rights in such a broad or expansive way so as to touch on matters of policy or to directly contradict the original intention of Parliament. In such circumstances, they will properly leave the task of clarifying the law to the legislature.

221. The courts are, however, explicitly empowered by the HRA (and therefore by the UK Parliament) to interpret and apply legislation in a manner that is consistent with the overall intention of the legislature. That can be done because the intention of Parliament can properly be determined by examining the legislation (including the HRA) that Parliament has itself passed. The last word does however always remain with the legislature, which can intervene at any time to clarify the law by passing new legislation should there be significant disagreement about the effect of a court judgment.

222. As Lady Hale indicated in her oral evidence on the Government's Independent Human Rights Act Review to the Joint Committee on Human Rights ("JCHR"):

" … if Parliament does not like something that the courts have done in pursuance of the interpretation obligation in Section 3 of the Act, Parliament can always put it right, it can always say, "No, this is what the law is", and you cannot interpret your way out of it"^[49].

223. That outcome was explicitly the intention of the UK Parliament when it passed the HRA, and it is a mechanism that has demonstrated its practical value over more than two decades.

224. Indeed, the practical importance of section 3 is further underlined by the extent to which it has been proactively used by the UK Government itself as a means to resolve matters of interpretation which do not merit the passing of new legislation.

225. As Lady Hale's evidence to the JCHR inquiry demonstrated, the use by the courts of section 3 has frequently been explicitly at the instance of the government itself, with counsel for the government proposing in submissions to the UK Supreme Court that the most appropriate course of action would be for the court to "read down" a particular provision rather than issuing a declaration of incompatibility.

"I cannot remember a case that I was involved in where we did not do whichever of [a section 3 interpretation or a declaration of incompatibility] the Government asked us to do"^[50].

226. The Scottish Government therefore fundamentally disagrees with the assertion in the consultation paper that section 3 has resulted in "an expansive approach" with courts "adapting legislation" in a way that is somehow unconstitutional, undesirable or contrary to the true intentions of Parliament.

227. Moreover, the particular case quoted by way of example (Ghaidan v Godin Mendoza)^[51] appears to the Scottish Government to be an example of exactly the kind of carefully considered judicial decision-making which is necessary in a democratic society founded on both human rights and the rule of law. It is certainly the view of the Scottish Government that, where legislation can be read and applied in a way that is compatible with ECHR rights, it is entirely proper that the courts should be empowered to do so. That was, in fact, the explicit intent of the UK Parliament when it passed the HRA.

228. It may of course be the position of the UK Government that it no longer wishes UK legislation to be read and applied in a way that properly implements human rights and gives effect to the UK's international obligations. Indeed, that does appear to be the necessary implication of both the current consultation and of some of the more general anti-human-rights language which has tended to characterise UK Government pronouncements on this subject.

229. For its part, the Scottish Government robustly rejects the options presented in the consultation paper. Section 3 of the HRA is both necessary and effective. Its value (and that of the HRA as a whole) has been repeatedly demonstrated, often to the direct benefit of both the executive and the legislature, which have been spared the onerous task of amending legislation which might otherwise have been rendered incompatible.

230. On the specific question of whether the definition of legislation should be extended to the legislation of the devolved legislatures (paragraph 8 of Appendix 2 of the consultation paper), it follows from the Scottish Government's fundamental objection to the idea that section 3 of the HRA should be repealed or amended, that there need be no change to the way the legislation of the devolved legislatures is to be interpreted.

231. In summary, there is no credible, objective case for making any change to section 3 and the HRA should be retained in its existing form.