Human Rights Act reform consultation: Scottish Government response

24. How can we make sure deportations that are in the public interest are not frustrated by human rights claims? Which of the options, below, do you believe would be the best way to achieve this objective?

• Option 1: Provide that certain rights in the Bill of Rights cannot prevent the deportation of a certain category of individual, for example, based on a certain threshold such as length of imprisonment;
• Option 2: Provide that certain rights can only prevent deportation where provided for in a legislative scheme expressly designed to balance the strong public interest in deportation against such rights; and/or
• Option 3: provide that a deportation decision cannot be overturned, unless it is obviously flawed, preventing the courts from substituting their view for that of the Secretary of State.

Please provide reasons.

331. The Scottish Government fundamentally disagrees with the deportation proposals set out in the consultation paper.

332. These risk further eroding the rights of individuals throughout the UK in a way that will inevitably have grave personal consequences for individual members of society and their families, including individuals who may be particularly vulnerable or at risk.

333. Protecting the public is of course an essential function of government and, for its part, the Scottish Government recognises that there will be instances in which the public interest does indeed require that a foreign national should be removed from the UK. It is also clear that genuine abuses of the immigration and asylum systems should be prevented and deterred.

334. However, as things currently stand – and contrary to the claims made by the UK Government^[69] – the HRA creates no automatic or necessary impediment to the deportation of foreign nationals where deportation is clearly shown to be in the public interest.

335. Indeed, deportations which are in the public interest are already not merely legally permitted, but are actually carried out. In the year ending September 2021, the UK forcibly removed 2,830 foreign nationals, most of whom were ex-offenders.^[70] It is therefore factually incorrect to assert that "deportations that are in the public interest are …frustrated by human rights claims".

336. The long-established position of the Scottish Government is that deportation should be viewed as a last resort, reserved for the most serious cases and for those who have exhausted all relevant appeal mechanisms. It should never be regarded as the default option or as something to be automatically applied without proper regard for the human rights of the individual concerned, and of their children and other dependants.

337. It also remains essential that deportation decisions made by UK Ministers can be effectively challenged in the courts and that they can be struck down where the decision is shown to be defective.

338. The ability to bring such challenges is a necessary feature of a system founded on respect for human rights and the rule of law. In fact, safeguards of this kind, which protect the individual against arbitrary, erroneous or unlawful decision-making by public authorities, are a necessary and non-negotiable feature of any modern liberal democracy. By the same token, where such challenges are successfully brought, it is entirely inappropriate for the UK Government to criticise the courts for upholding the rule of law.

339. Against that general background it ought not to be necessary to remind the UK Government of the very real human rights abuses perpetrated as a consequence of the Windrush scandal.

340. It is sobering to reflect on the fact that, in practice, the existing protections of the HRA were not enough to prevent the wrongful deportation and removal of at least 83 people from the UK, some of whom died before being able to claim any redress^[71]. There is consequently the very real risk that a weakened HRA may facilitate or encourage the violation by the UK Government of the rights of entirely innocent and law-abiding individuals, as occurred in the Windrush case. It is certainly the case that a variety of groups within UK society have been targeted in a similarly discriminatory manner by UK Home Office policies.

341. The Scottish Government regards the Windrush example as indicative of the actual and potential abuses to which innocent members of society risk being exposed as a result of the UK Government's attempts to ignore, override and deconstruct human rights protections in the UK.

342. Rather than bringing forward proposals to further reduce and restrict such protections, the UK Government should devote greater effort and resources to rectifying and remedying the abuses for which it is already responsible.

343. In relation to the further detail of the proposals, the Scottish Government would caution strongly against the risk of "reforming" existing mechanisms in ways that give rise to unintended consequences.

344. This is a particular concern in the context of the obligations arising under the TCA reached with the European Union in 2020. The terms of the TCA explicitly provide that:

"cooperation can be suspended in case of violations by the UK of its commitment for continued adherence to the European Convention of Human Rights and its domestic enforcement."^[72]

345. As matters currently stand, the implementation of the ECHR in the UK by means of the HRA satisfies the requirements of the TCA. However, should those existing protections be deconstructed, as the UK Government proposes to do, then the UK's ability to return EU nationals to their home country could well be called into question.

346. It is therefore clear to the Scottish Government that the proposals set out in the consultation seek to address problems which do not actually exist, whilst threatening to create new, and very real, problems in an area where there is currently strong and effective co-operation between the UK and EU member states.

347. It is also a matter of very real concern that the proposal to exclude the possibility of legal challenge, based for example on the categorisation of groups with certain characteristics, will place the UK at odds with its obligations under the ECHR in a way that will simply result in the UK losing increasing numbers of cases in the ECtHR.

348. Any attempt to automatically exclude the consideration of rights such as those arising under Article 8 or Article 14 without regard to the facts and circumstances of individual cases will itself, in turn, present the risk of non-compliance with the requirements of Articles 6 and 13. That cannot be an outcome which the UK Government can reasonably contemplate whilst remaining a State Party to the ECHR. Such an approach is, ultimately, incompatible with a commitment to the rule of law and it is therefore essential that the UK Government does not place itself in a position where it is in breach of the UK's international obligations.

349. More generally, in relation to the overall situation of foreign nationals resident in the UK, the Scottish Government has repeatedly drawn attention to flaws in the existing asylum and immigration in the UK and continues to call on the Home Office to develop and implement policies that are both more humane and more flexible.

350. The Scottish Government will therefore continue to argue for mandatory judicial oversight in all cases where individuals may be subject to immigration detention or removal. This is an essential, and non-negotiable requirement which ensures proper compliance with human rights obligations and serves to uphold fairness, equality and proper respect for human dignity.

351. Scotland welcomes those who are in need of protection as well as the many individuals and their families who help Scotland to develop and to prosper economically by contributing their skills and labour in ways that benefit the whole of Scottish society. For that reason, the Scottish Government has consistently argued in favour of immigration laws and policies which enable everyone resident in Scotland to play a full and active role within Scottish society, including through productive economic activity. Policies such as those pursued by the UK Government which result in exclusion, poverty and lost opportunities for both individuals and society as a whole are most certainly not in the wider public interest.

352. While immigration is reserved, the Scottish Government has further proposed that the Scottish Ministers should play a formal role in the migration system and in cases relating to any individual who is normally resident in Scotland. Such involvement would serve to ensure that an assessment of the public interest is properly determined by reference to Scottish facts and circumstances.