Human Rights Act reform consultation: Scottish Government response

23. To what extent has the application of the principle of 'proportionality' given rise to problems, in practice, under the Human Rights Act? We wish to provide more guidance to the courts on how to balance qualified and limited rights. Which of the below options do you believe is the best way to achieve this?

• Option 1: Clarify that when the courts are deciding whether an interference with a qualified right is 'necessary' in a 'democratic society', legislation enacted by Parliament should be given great weight, in determining what is deemed to be 'necessary'.
• Option 2: Require the courts to give great weight to the expressed view of Parliament, when assessing the public interest, for the purposes of determining the compatibility of legislation, or actions by public authorities in discharging their statutory or other duties, with any right.

We would welcome your views on the above options, and the draft clauses after paragraph 10 of Appendix 2.

311. The Scottish Government fundamentally disagrees with the proposition in the consultation paper that the requirement for proportionality has given rise to "problems".

312. That contention is simply not supported by the evidence, as was made very clear by the many expert responses supportive of the HRA which were submitted to the IHRAR panel.

313. Nor is there is any credible evidence that the UK's courts exercise their functions in ways that fail to have proper, and careful, regard to the respective constitutional roles of the legislative, executive and judicial branches of government.

314. Indeed, the degree to which the courts exhibit an appropriate deference to the respective roles of law-makers and decision-takers was strongly underlined by the expert evidence received by the IHRAR panel. The approach adopted by the courts includes both a proper regard for the legislative intention of the Parliament, when interpreting legislation, and for the legitimate right of government to take executive decisions.

315. Accordingly, the Scottish Government does not believe that any credible or persuasive argument exists to support the UK Government's contention that judicial "activism" has led to the courts exceeding their own powers or that courts in the UK fail to give appropriate weight to the views, and legitimate powers, of either the legislature or the executive.

316. It is, however, correct to say that the HRA has empowered the courts to closely and critically examine the proportionality of government decisions and policies. Indeed, this is one of the core strengths of the HRA and it is a feature that has repeatedly proven its value over the last two decades.

317. That ability has meant in practice that courts in the UK have been able to scrutinise the actions of the executive in a way that has enabled the substance of ECHR rights to be properly protected. The exercise of that judicial function is an essential feature of a society which is founded on the rule of law and it is necessary that government is fully accountable for the actions it takes.

318. Whilst the HRA does not provide the only means by which such challenges can be brought, the HRA has, crucially, established an approach that has both enabled and required the courts to look beyond previous common law or pre-HRA mechanisms. The practical result has been that individuals whose rights have been infringed as a result of lazy, careless, or negligent decision-making have had proper access to appropriate redress in line with the UK's obligations under Article 13 of the ECHR.

319. It is therefore essential that the existing level of protection is maintained and that nothing is done to permit or excuse executive actions that are convenient and expedient for the government of the day but detrimental to the rights of individuals and to the wider interests of society.

320. Ensuring that there are adequate safeguards in place to prevent government abuses of human rights and fundamental freedoms is an essential feature of any functioning liberal democracy. The consultation paper is therefore entirely wrong to suggest that democratic decision-making and effective human rights protections are somehow in conflict. The reality, of course, is that legislative and executive decisions cannot, under any circumstances, be regarded as consistent with democratic norms if they are not also human rights compliant.

321. Whether government actions or decisions actually meet that necessary basic standard is ultimately (and properly) a matter for the courts to determine – and they should do so objectively and impartially. For its part, the Scottish Government is entirely happy with that arrangement and with the fact that the HRA enables the courts to assess whether a public authority is acting in a legal, necessary and proportionate way (and therefore justifiably and lawfully) when its actions infringe a person's human rights.

322. In contrast, what the UK Government's new proposals seek to do is to require the courts to accept that the very existence of a piece of primary and secondary legislation is somehow – in and of itself – determinative of what constitutes the public interest.

323. It appears that even if that legislation has been passed or made in the explicit knowledge that it violates the human rights of individual members of society, the ability to challenge the practical human rights impacts of that legislation will be restricted by law. It seems evident that the intention is to obstruct the domestic courts in the exercise of their own vitally-important, and independent, constitutional function. That is an alarming proposition and one which the Scottish Government strongly opposes.

324. The unfortunate reality is that, far from representing a desire "to balance individual rights with due respect for the wider public interest", the proposals set out by the UK Government crudely conflate the will of the UK Parliament with the public interest.

325. They do so in a way that appears to be designed to place not only legislative but executive actions beyond effective legal challenge. This reflects a belief, which seems increasingly to be a feature of UK Government thinking, that UK Ministers should be able to disregard inconvenient rules and legal constraints. The apparent intention is to override opposition and to disregard the wider public interest, including the requirement to respect, protect and fulfil human rights.

326. Moreover, the draft provisions set out in Option 2 on page 100 of the consultation paper also extend to "a decision of a public authority made in accordance with a provision of legislation". This too is a deeply alarming proposal.

327. Its purpose and effect would appear to be to ensure that any decision of a public authority must, by definition, be regarded as being in the public interest.

328. The test to be applied will simply be whether the decision in question can be justified by reference to legislation passed or approved by the UK Parliament. If it can, then the existence of the legislative provision is itself sufficient evidence that the public authority is acting in the public interest. That will apply whether or not the public authority has been careless or diligent in its decision-making and irrespective of whether it has made any effort to take appropriate steps to respect, protect and fulfil the rights protected by the HRA.

329. As with other proposals set out in the consultation paper, the practical effect of the draft provisions set out in Option 2 can only be to encourage and facilitate a culture of casual disregard for human rights by public authorities.

330. The Scottish Government therefore objects to these proposals in the strongest terms.