Human Rights Act reform consultation: Scottish Government response

1. We believe that the domestic courts should be able to draw on a wide range of law when reaching decisions on human rights issues. We would welcome your thoughts on the illustrative draft clauses found after paragraph 4 of Appendix 2, as a means of achieving this.

84. The Scottish Government disagrees with both the analysis set out in the consultation paper and with the policy intent which informs this proposal.

85. As a matter of legal fact, it is alreadythe case that the domestic courts areable to draw on a wide range of legal sources when determining human rights claims. This sits alongside, and goes beyond, the requirement in the HRA to take European Court of Human Rights ("ECtHR") jurisprudence "into account" when determining questions arising in connection with the Convention rights.

86. This existing discretion afforded to the courts extends, for example, to sources such as case law from other jurisdictions and to the advice and legal argumentation set out in third party interventions. What matters is that the court itself is persuaded that such sources and advice are of relevance to the case in question, having taken account of the specific legal issues that arise in the context of that case. While legislation can quite properly draw attention to potentially helpful sources, deciding what to take into account in each individual case is a key part of professional judicial expertise, and neither the independence of the courts in this regard, nor the ability of the judiciary to ensure that just and equitable outcomes can be delivered by the courts, should be eroded.

87. This general approach, and the balance to be struck between legislative direction and judicial discretion is helpfully illustrated by section 4 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill^[19]. This provides that "a court or tribunal … may take into account" a variety of sources which shed light on the purpose and intended effect of the UN Convention on the Rights of the Child ("UNCRC")^[20] "so far as it is relevant" to do so. The Bill purposely goes no further in the direction it gives to the courts.

88. However, as the Scottish Government made clear in its response to the IHRAR, there is both a clear rationale and an operational necessity for the more demanding obligation imposed by section 2 of the HRA – i.e. that the court "must" (not "may") take account of the jurisprudence of the ECtHR.

89. This is because the ECHR explicitly exists as a multi-lateral treaty underpinned by a formal institutional framework designed to support the "collective enforcement" of rights originally identified in the Universal Declaration of Human Rights. Crucially, since 1959, that institutional framework has included a court whose jurisdiction extends "to all matters concerning the interpretation and application of the Convention"^[21].

90. As a consequence, it is the ECtHR which ultimately determines the correct meaning to be given to each of the rights set out in the ECHR.

91. Since the explicit purpose of the HRA is to give those same rights domestic legal effect in the UK, it is clearly of considerable importance that courts in the UK have regard to the common, Europe-wide interpretation arrived at by the ECtHR.

92. A failure to do so would necessarily give rise to significant confusion and legal uncertainty, with potentially conflicting judgments arrived at, respectively, by the domestic courts and the court in Strasbourg. Ensuring that such divergence does not occur by accident or oversight, and that differences of interpretation can be satisfactorily resolved (in particular by means of "judicial dialogue") is essential to the integrity of the ECHR system as a whole. This requirement was explicitly recognised in debates in the UK Parliament during the passage of the HRA.

93. It is therefore entirely logical to require the domestic courts (up to and including the UK Supreme Court) to give very careful consideration to the jurisprudence of the ECtHR. In that respect, section 2 of the HRA, as it currently stands, strikes an entirely proper balance between the independence of the domestic courts and the need to ensure that the UK gives proper effect to the obligations it has entered into as a party to the ECHR.

94. It should however be stressed (and this point was repeatedly emphasised in submissions to the IHRAR) that the requirement to "take account" does not impose an obligation to slavishly follow every judgment of the ECtHR.

95. As the evidence submitted to the IHRAR made very clear, the process of "judicial dialogue" which takes place between the domestic courts and the ECtHR provides an effective means not only of reaching a definitive conclusion in the particular case in question but of ensuring that the position ultimately arrived at informs the ECHR system as a whole. Moreover, this mechanism (which is a necessary and important feature of the common, Europe-wide framework established by the ECHR) has proven to be an important channel through which the legal expertise of the UK courts has exerted a positive and beneficial influence on European human rights law as a whole.

96. There is consequently no requirement for the amendment of section 2 of the HRA. By contrast there are very good reasons, which were set out in detail in evidence to the IHRAR, why such a change can be expected to have negative and counter-productive impacts.

97. In particular, any attempt to substantively alter the effect of section 2 would run directly counter to the UK Government's statement that it intends the UK to remain as a State Party to the ECHR.

98. That is because the necessary and inescapable consequence of UK participation in the ECHR system is that any right set out in domestic law which corresponds to a right in the ECHR must ultimately be interpreted and applied by the UK courts in a manner that is consistent with the requirements of the ECHR. A failure to do so will simply result in the UK finding itself in breach of its international obligations.

99. The proposals set out in the consultation paper appear to be at odds with that fundamental reality.

100. At best, the proposals can perhaps be regarded as a further example of the equivocation and "cakeism"^[22] which has characterised the UK Government's relationship with the European Union. There is certainly a strong sense in the consultation that the UK should be able to sidestep inconvenient rules, but without giving up any of the benefits which the ECHR system provides.

101. The more troubling suspicion, however, is that the true purpose of the proposals is ultimately to detach the UK – incrementally and by stealth – from the obligations established by the ECHR and from membership of the Council of Europe. Such an approach may stop short of formal denunciation of the treaty and be calculated to avoid an overt exit from an international institution that the UK was instrumental in founding. But it is nonetheless a policy that risks compromising the effectiveness of mechanisms which it is very much in the UK's national interest to support and maintain.

102. For its part, the Scottish Government explicitly and wholeheartedly rejects any attempt to distance the UK from the ECHR and the Council of Europe. Scotland's wish instead is to be an active and constructive member of the international community, and one which acts conscientiously to observe and implement the international obligations which bind all progressive, democratic nations. There should be no place in domestic human rights legislation for the kind of parochial insistence on British exceptionalism which characterises many of the proposals in this consultation paper.

103. In summary, the view of the Scottish Government is that section 2 of the HRA works well in practice and should be retained in its existing form. The Scottish Government strongly opposes any amendments that attempt to distance the UK from its international obligations, that risk undermining legal certainty, or that have the effect of restricting access to justice in the domestic courts.

Comments on the draft clauses

104. The Scottish Government's reading of the draft clauses is that they are intended, incrementally, to disconnect domestic law from the ECHR and to call into question the future effect of established domestic case law developed under the HRA.

105. Attempts to do so are, for the reasons already outlined above, likely to be harmful in a domestic context and will be damaging also to the UK's wider interests as a member of the Council of Europe. Doing so would certainly be at odds with both the original purpose of the HRA in "bringing rights home" and with the objective of the ECHR as a treaty which implements the Universal Declaration of Human Rights and establishes a common Europe-wide standard.

106. In practice, it is both pointless and counter-productive to construe rights which are explicitly derived from the ECHR in any way other than by reference to the original instrument and in line with the interpretation arrived at by the ECtHR.

107. As already noted, Article 32 of the ECHR makes very clear that the ECtHR is the ultimate interpretive authority. If decisions in the domestic courts diverge significantly from the ECtHR's interpretation, the predictable result will simply be an increase in individual applications to Strasbourg and a subsequent need to reconcile any divergent domestic decisions with the requirements established by the UK's international obligations. Both legal certainty and access to justice are likely to be adversely affected, as will the UK's international standing. That is a result which is not in the interest of any party and will inevitably disadvantage litigants seeking a definitive remedy to an alleged human rights breach – something which they should be able to obtain from the UK's own courts^[23].

108. Adopting such a course of action is also entirely unnecessary in light of the active manner in which the UK's own courts have engaged with questions of interpretive alignment and consistency.

109. It appears that the draft clauses set out in the consultation paper are intended as an attack on the interpretive principle originally developed by Lord Bingham in Ullah. That principle established the general expectation that while ECtHR "case law is not strictly binding" it is nonetheless the case that the UK courts should, "in the absence of some special circumstances, follow any clear and constant jurisprudence" of the ECtHR. In doing so "[t]he duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less"^[24].

110. However, Ullah does not create (and should not be portrayed as creating) inflexible constraints on domestic courts which prevent them from undertaking their own analysis of the matters brought before them in cases arising out of the HRA.

111. Far from adopting a passive and unquestioning approach to the interpretation of human rights, the UK courts have demonstrated very clearly their willingness and ability to function as an integral part of the process through which Strasbourg jurisprudence evolves. As was made clear in a great many of the responses received by the IHRAR, the constructive interactions and "judicial dialogue" which take place between Strasbourg and the national courts are themselves an important strength of the ECHR. Indeed, in many instances the analysis and interpretation generated by the UK's courts has proven influential in shaping the ECtHR's own thinking and jurisprudence.

112. There is consequently no requirement to seek to overrule Ullah by legislative means or to otherwise attempt to constrain or restrict the proper exercise by the UK courts of their independent functions.

113. The further suggestion in both Option 1 and Option 2 that the courts need to be instructed on how to deal with legal precedent is similarly unnecessary and unwelcome. In fact, it is not only actively disrespectful of judicial competence but symptomatic in a wider sense of the tendency towards executive overreach and unwarranted centralised control which appears, increasingly, to characterise the policies of the current UK Government.

114. In relation, more specifically to devolved matters in Scotland, the Scottish Government would point out that whilst the Scotland Act does not itself explicitly establish an equivalent duty on the Scottish courts to take Strasbourg jurisprudence into account, the requirement to do so under section 2 of the HRA has been held by the Scottish courts and the House of Lords to apply also when determining matters of ECHR compatibility which arise as a devolution issue.

115. Amendment of section 2 of the HRA could therefore have potentially significant devolved implications. Any amendment to the HRA that alters the way in which the Scotland Act is interpreted and applied would necessarily be of significance in a devolved context and would be likely to require the legislative consent of the Scottish Parliament.

116. It is therefore particularly important to emphasise not only that the observation and implementation of the ECHR in Scotland, in devolved areas, is a matter for Scotland's devolved institutions, but that wider changes to the devolution settlement must not be pursued without the explicit agreement of the Scottish Parliament. It is disappointing that the consultation paper does not give more specific consideration to the potential implications of this proposal for devolved institutions – including not just the Scottish Parliament and the Scottish Government but also the Scottish courts.