Human Rights Act reform consultation: Scottish Government response

22. We would welcome your views on the most appropriate approach for addressing the issue of extraterritorial jurisdiction, including the tension between the law of armed conflict and the Convention in relation to extraterritorial armed conflict.

300. The Scottish Government's response to the IHRAR consultation made clear that the existing situation in relation to extraterritorial jurisdiction does not require to be altered.

301. It remains essential in all circumstances that UK forces continue to demonstrate the international leadership expected of a major liberal democracy, including by rigorously adhering to human rights standards. Acceptance of extraterritorial jurisdiction should be viewed as a public expression of that commitment.

302. It should also be emphasised that extraterritorial jurisdiction confers important protections on UK service personnel, who can have recourse to the domestic courts when the UK Government fails to abide by the undertakings it has given to support and protect those who risk their lives in the national interest.

303. The Scottish Government is therefore clear that the HRA should continue to apply wherever the UK exercises meaningful jurisdiction, in line with the case-law of the ECtHR. That is the correct approach for any state which is committed to the ECHR and which wishes to demonstrate international leadership and signal its own adherence to an international order founded in the principles of democracy, human rights and the rule of law.

304. As was made clear in numerous expert responses to the IHRAR consultation, both the ECtHR and the domestic courts have given careful consideration to the question of "extraterritorial" application of the Convention and the HRA. As a matter of established law, extraterritorial jurisdiction applies only to a limited degree and in exceptional circumstances. Changes are therefore unnecessary.

305. The Scottish Government notes that changes to the HRA in relation to the armed forces have already been made by means of the Overseas Operations (Service Personnel and Veterans) Act 2021^[66]. These relate to criminal responsibility for human rights violations overseas, and limitations for bringing civil claims. Given the approach already taken in the Overseas Operations Act, it seems likely that any further changes envisaged by the UK Government would be intended to limit the extraterritorial reach of the HRA in ways that will give rise to significant criticism from international human rights institutions^[67].

306. The Scottish Government would particularly warn against any temptation to respond to the position established by the ECtHR in Al-Skeini by means of some form of unilateral UK "opt-out".

307. Amending the HRA to exclude extraterritorial application would have no effect on the jurisprudence of the ECtHR and would not change the substance of the UK's obligations under international law.

308. It would, however, complicate the work of UK courts and signal to the wider international community that the UK is unwilling to act in accordance with international human rights standards. The UK Government's own consultation paper appears to tacitly acknowledge this at paragraph 280, where it states that "if the extraterritorial scope of the Bill of Rights were to be restricted, other legislative changes would be required in order for the UK to continue to meet its obligations under the Convention."

309. Any attempt by the UK Government to undermine the current extraterritorial effect of the ECHR could inadvertently give succour or support to states which commit acts of aggression.^[68] Doing so would risk seriously compromising the human rights values espoused by all democratic states. Extreme care must therefore be exercised.

310. For that reason, the Scottish Government would urge the UK Government to distance itself from any suggestion that the established effect of international human rights law might be weakened or set aside in the context of extraterritorial military actions.