Human Rights Act reform consultation: Scottish Government response

2. The Bill of Rights will make clear that the UK Supreme Court is the ultimate judicial arbiter of our laws in the implementation of human rights. How can the Bill of Rights best achieve this with greater certainty and authority than the current position?

117. The Scottish Government disagrees with both the analysis set out in the consultation paper and with the policy intent which informs this proposal.

118. The UK Supreme Court is already the ultimate judicial arbiter of domestic laws in the UK^[25]. It is unnecessary to restate that fact in new legislation, and nothing within the existing mechanisms established by the HRA calls into question the authority of the UK Supreme Court.

119. As the Scottish Government made clear in its response to the IHRAR consultation^[26] and in its response to Question 1 (above), section 2 of the HRA merely requires the UK Supreme Court to take ECtHR jurisprudence "into account". The UK Supreme Court does so in a way that successfully reconciles domestic tradition and practice with the UK's obligations under the ECHR, and in a manner that ensures the overall consistency of a system that binds all 47 Council of Europe member states.

120. Where the UK Supreme Court has had good reason to depart from rulings of the Strasbourg court, it has done so. Crucially, that process has then enabled the expert legal analysis contained in UK Supreme Court judgments to be examined by the ECtHR, in a way that has shaped the Strasbourg court's own thinking and jurisprudence.

121. The nature of this interaction is one which to which judges in both the UK and in Strasbourg have given active, and carefully considered, thought. For example, the Scottish Government's response to the IHRAR consultation quoted Lord Phillips' judgment in Horncastle in 2009, where he rejected the argument that the UK Supreme Court should simply follow the decision of the ECtHR in the previous Al-Khawaja case:

"There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court."^[27]

122. The Scottish Government therefore believes that the current balance struck between the UK and Strasbourg courts is the right one, and that the process of "judicial dialogue" provides an appropriate method for resolving differences of interpretation. That includes recognition of the existing and well-established role played by the UK Supreme Court as the ultimate judicial arbiter at the domestic level and its critically-important role in articulating, in a definitive manner, any difference of interpretation which might then form the basis for further judicial dialogue.

123. As extensive and authoritative evidence submitted to the IHRAR also made clear, the quality of the legal analysis presented in judgments from the UK Supreme Court has exerted a direct and beneficial influence on the thinking of the ECtHR. Attempts to detach the work of the UK courts from that of the wider ECHR system will necessarily be harmful not just to the interests of individual litigants but will run the serious risk of depriving that wider system of access to the legal expertise which informs the judgments of UK courts.

124. The HRA as it is currently drafted already provides certainty and access to a legal remedy in the UK's domestic courts, including by means of a definitive judgment by the UK Supreme Court. There is consequently no properly-reasoned case for change and the draft provisions in the consultation paper do nothing to enhance the standing or authority of the UK Supreme Court.

125. In fact, in attempting to artificially disconnect the interpretation of rights in domestic legislation from the interpretation of the same rights adopted by the ECtHR, they run the risk of diminishing the considerable influence which the UK Supreme Court currently enjoys.

126. The Scottish Government therefore strongly opposes the proposal set out in this section of the consultation paper.