Human Rights Act reform consultation: Scottish Government response

20. Should the existing definition of public authorities be maintained, or can more certainty be provided as to which bodies or functions are covered? Please provide reasons.

277. The definition of "public authority" adopted in the HRA was intended to be broad in its scope and flexible in its application. In particular, the temptation to list all relevant public authorities by name was explicitly avoided, although doing so is a legitimate potential mechanism which is used in a number of other statutes.

278. The Scottish Government believes that, overall, the approach currently taken in the HRA remains the correct one. It continues to implement the original legislative intention, which was that a wide range of bodies performing public functions should be subject to the requirement set out in section 6. This makes it unlawful for a public authority to act in a way that is incompatible with the Convention rights established under the Act^[59].

279. The flexibility and "future proofing" that were intentionally built into the HRA remain important features of the legislation. They are certainly in keeping with the wider idea of the ECHR as a "living instrument" – that is, one which is capable of evolving to address developments which were unforeseen at the time the original provisions were drafted. In that sense there is a strong case to be made for a definition of "public authority" which can accommodate the emergence of new forms of "public function" and new models of public service.

280. The practical difficulty which has arisen, and which has been highlighted by civil society campaigners and others, is that a relatively restrictive interpretation has tended to be applied by the courts. This was the case from as early as 2002 and the JCHR specifically addressed the matter in a March 2004 report^[60].

281. As the recent decisions of the Court of Session in Ali v Serco^[61] demonstrate, the question remains very much a live issue. In addressing the issues raised by the case, the Outer House held that, when providing accommodation to asylum seekers pursuant to a contractual arrangement with the Home Secretary, Serco was exercising a function of a public nature for the purposes of the HRA (with the result that it would be bound to act compatibly with ECHR rights when exercising that function).

282. In the Court's view, the relationship between Serco and the Home Secretary, whilst commercial in nature, was nonetheless such that Serco was essentially "taking the place of central government in carrying out what in essence [was] a humanitarian function".

283. However, on appeal, the Inner House reversed that aspect of the Outer House's decision, holding that, in this case, Serco was not exercising functions of a public nature and was not, in consequence, bound to act compatibly with ECHR rights. Serco, in the Inner House's view, should more properly be considered to be subject to private law obligations and responsibilities, with the Home Secretary being responsible for the discharge of public law obligations.^[62]

284. The view of the Scottish Government, having given careful consideration to the judgments handed down by the Court of Session in Ali v Serco, is that further clarification of the law by means of legislation would now be desirable. That is a position which, broadly, is shared by civil society campaigners and by the UK's NHRIs. As previously noted, where such clarification becomes necessary, it is proper that the decision is made by the legislature.

285. What is required, however, is a relatively minor adjustment to the existing mechanism in order to extend the current definition so that contractual services of the kind performed by Serco in the Ali case are definitively caught by the requirements of the HRA.

286. The Scottish Government would not support changes to the general approach currently adopted in section 6 of the HRA (for example by creating a list of named public authorities) and would vigorously oppose any attempt to narrow or restrict the extent or scope of the existing duty, for example by exempting public authorities (in whole or in part) from the need to comply.

287. The purpose and effect of an amendment to section 6 should therefore be to make clear that a private or third sector organisation which is contracted to carry out a function on behalf of a public authority will itself become subject to human rights responsibilities. The contracted organisation must not, as a result, act in a way that is incompatible with the ECHR rights set out in the HRA. This should apply to the extent that these rights are engaged by the particular services being provided. Whilst general overall responsibility for compliance will continue to rest with the respective public authority on whose behalf the relevant function is carried out, it should also be the case that the service-provider itself is explicitly subjected to compliance responsibilities in respect of its own actions.

288. Such an outcome could be achieved in a variety of ways, but the Scottish Government believes that the simplest and most effective mechanism remains the one set out in section 6 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, as passed by the Scottish Parliament in March 2021^[63]. This makes clear that "functions of a public nature" include, in particular, "functions carried out under a contract or other arrangement with a public authority"^[64].

289. As a further feature of such an amendment to the HRA, the Scottish Government would propose that the responsibility placed on a private or third sector service-provider should explicitly include functions carried out overseas on behalf of the UK Government. This requirement arises as a consequence of the increased use which is being made of private sector procurement in areas such as asylum. Particular concerns arise in relation to the Nationality and Borders Bill^[65] and the risk that asylum and immigration functions delivered off-shore by private companies may be carried out in contravention of the UK's obligations under the ECHR.

290. The Scottish Government would be very happy to engage in further constructive discussions with all interested parties with a view to securing support for proposals of the kind identified above. It should however be stressed that the requirement for further clarification in relation to this particular aspect of section 6 of the HRA does not provide any justification for more wide-ranging "reforms".

291. It remains the case that the HRA is a highly-effective and carefully-drafted statute which has repeatedly proven its worth in protecting the rights and freedoms of individuals and communities throughout the UK. The Scottish Government therefore explicitly opposes any attempt to replace the HRA with a "modern Bill of Rights".