Human Rights Act reform consultation: Scottish Government response

21. The government would like to give public authorities greater confidence to perform their functions within the bounds of human rights law. Which of the following replacement options for section 6(2) would you prefer?

• Option 1: Provide that wherever public authorities are clearly giving effect to primary legislation, then they are not acting unlawfully; or
• Option 2: Retain the current exception, but in a way which mirrors the changes to how legislation can be interpreted discussed above [in the consultation paper] for section 3.

Please explain your reasons.

292. The Scottish Government does not support any change to the overall approach adopted in section 6 of the HRA.

293. In particular, the Scottish Government does not agree that it is appropriate or acceptable for situations to arise in which legislation requires a public authority to act in a way that breaches human rights. The preference would instead be to apply the model provided by the Scotland Act 1998, under which such legislation can be challenged in the courts and is "not law" if it is found to be incompatible.

294. However, within the context of the UK's existing constitutional arrangements, and the power which the UK Parliament retains to knowingly and intentionally violate human rights should it wish to do so, the Scottish Government accepts that the existing qualifications in section 6(2) are a necessary clarification. It is important that public authorities have explicit instruction on how they should proceed in the event that there is a conflict between human rights obligations and other legislation and the public authority consequently finds itself in a situation in which it has no option other than to act incompatibly.

295. It is, nonetheless, important to be clear that in such circumstances the public authority would indeed be acting unlawfully, were it not for the exception created by section 6(2).

296. That is particularly important where there is any dispute about the options available to the public authority. Any relaxation of the current provision would run the significant risk of encouraging public authorities to act incompatibly without fully testing alternative options. As with other proposals in the consultation the ultimate effect could well be to encourage and to facilitate a culture of casual disregard for human rights. Such an outcome would certainly be consistent with the general antipathy to human rights which has all too often been exhibited by the UK Government. But it is one which the Scottish Government will strenuously resist.

297. It is also important that the existence of an exception in domestic legislation does not obscure the fact that the actions taken by the public authority would conflict with the UK's international obligations. Those affected may well, as a result, be successful in obtaining a remedy by applying to the ECtHR. The UK would then be obliged, by virtue of Article 46 of the ECHR, to abide by the final judgment of the Court.

298. The better course of action is therefore for the public authority to ensure that its actions are fully compatible with ECHR rights from the outset. Where there is a genuine choice to be made, the public authority should not seek to rely on exceptions which may potentially be available under domestic legislation but which would not be permissible under the ECHR.

299. In summary, the Scottish Government believes section 6 already deals satisfactorily with the situation of public authorities and changes are neither necessary nor desirable.