Human Rights Act reform consultation: Scottish Government response

27. We believe that the Bill of Rights should include some mention of responsibilities and/or the conduct of claimants, and that the remedies system could be used in this respect. Which of the following options could best achieve this?

• Option 1: Provide that damages may be reduced or removed on account of the applicant's conduct specifically confined to the circumstances of the claim; or
• Option 2: Provide that damages may be reduced in part or in full on account of the applicant's wider conduct, and whether there should be any limits, temporal or otherwise, as to the conduct to be considered.

Please provide reasons.

377. This proposal raises serious concerns in relation to both general principles and practical application.

378. Any attempt to restrict the enjoyment of human rights, or prevent access to justice, based on some general assessment of the moral character of a particular individual would be repugnant from the point of view of both human rights and the rule of law.

379. Justice must be impartial and available to all, and dispensed solely in accordance with the merits of each case. It would be wholly unacceptable to make the outcome of a case dependent, even in part, on the general public standing or reputation of those who come before the courts.

380. The very obvious further risk is that the subjective judgments which would necessarily be involved would be informed by social prejudices and by other subjective factors. The consequence would be to further disadvantage those who are already on the margins of society and who lack power and influence.

381. The question of whether a court should have regard to the conduct of an individual in a particular case when deciding on the most appropriate remedy is a rather different, and entirely separate, matter.

382. As the consultation paper itself recognises, such considerations can already form part of the judgment reached by a court. For example, in paragraph 306, the consultation paper cites McCann v United Kingdom^[74] in which the ECtHR quite properly declined to award damages, as the violation found by the court would not have occurred if the individuals concerned had not been intent on committing an act of terrorism.

383. Such decisions should, however, be reached in an entirely impartial and objective manner by a court of law, without the risk of political interference and without the need for any constraint or direction of the kind proposed by the UK Government.

384. The Scottish Government therefore opposes both of the proposals in the consultation paper and reiterates that the HRA as it currently stands is not only highly effective and well-drafted, but has a proven track record in relation to human rights protection in the UK.