Human Rights Act reform consultation: Scottish Government response

18. We would welcome your views on how you consider section 19 is operating in practice, and whether there is a case for change.

258. The requirement in the HRA for a statement of compatibility under section 19 of the HRA is an entirely sensible and necessary measure which imposes a duty on Ministers to assess the potential human rights implications of proposed primary legislation.

259. The resulting ministerial statement binds neither Parliament nor the courts, and there is of course no guarantee that a Bill which is compatible on introduction will not subsequently be amended in ways that render it incompatible.

260. Nonetheless, it is important that legislation brought forward by the executive is seen to be compliant with both domestic human rights guarantees and with the UK's international obligations.

261. The requirement for a statement of compatibility under section 19 of the HRA is similar to the requirements imposed by sections 31(1) and 31(2) of the Scotland Act 1998^[54]. Section 31(1) requires the person in charge of a Bill to state that in their view the provisions of a Bill would be within the legislative competence of the Parliament. Section 31(2) requires the Presiding Officer to decide whether or not in their view the provisions of a Bill would be within the legislative competence of the Scottish Parliament and to state that decision. The provisions of a Scottish Parliament Bill would not satisfy either test if they are considered to be incompatible with the ECHR rights set out in the HRA by virtue of section 29(2)(d) of the Scotland Act.

262. However, there are two significant flaws in the current mechanism provided by section 19 of the HRA.

263. The first is that UK Ministers are able to introduce legislation that breaches human rights. Whilst they must alert Parliament to that fact by stating that they are unable to make a statement of compatibility, it is clearly unsatisfactory that the UK Government is able to bring forward legislative proposals that it knows are in conflict with both established domestic safeguards and international law.

264. The current requirement in the HRA for a statement of compatibility should therefore be regarded as an absolute minimum level of protection, and it must not be removed or eroded.

265. The Scottish Government would in fact suggest that the current threshold should be raised, and that a government which has a genuine commitment to human rights would be happy to emulate the mechanism set out in section 31(1) of the Scotland Act. Section 19(1)(b)^[55] of the HRA Act should therefore be repealed so that it is no longer permissible for UK Ministers to intentionally introduce incompatible legislation.

266. The second flaw in section 19 is that the requirement to make a statement applies only to Ministers. This contrasts with the requirement in section 31(1) of the Scotland Act, which applies to any Member of the Scottish Parliament, with the result that Member's Bills also require a statement on competence. An equivalent requirement at Westminster might provide a helpful reminder to all Members of Parliament that assessing the human rights compliance of a Bill is an essential part of the legislative process.

267. Against that background, the Scottish Government is particularly concerned by the apparent suggestion in the consultation paper that compliance with human rights obligations represents some kind of obstacle to the development of "innovative policies".

268. "Innovating" in ways that violate human rights is not an option which should be available to, or contemplated by, any democratic government.

269. To do so would be to undermine not just human rights but the rule of law at both the domestic and the international level. To that extent it again appears that the UK Government has significantly misunderstood the universal and inalienable nature of human rights and the purpose of the legal protections which are embedded within domestic and international law.

270. Human rights obligations are not some minor matter which can be treated as optional, or which can be set aside by the UK Government or the UK Parliament whenever it is felt that compliance might prove troublesome, inconvenient or insufficiently "innovative".