Human Rights Act reform consultation: Scottish Government response

29. We would like your views and any evidence or data you might hold on any potential impacts that could arise as a result of the proposed Bill of Rights. In particular:

a. What do you consider to be the likely costs and benefits of the proposed Bill of Rights?
b. What do you consider to be the equalities impacts on individuals with particular protected characteristics of each of the proposed options for reform?
c. How might any negative impacts be mitigated?

Please give reasons and supply evidence as appropriate.

393. The Scottish Government's overriding concern in relation to a proposed Bill of Rights is that the strong existing protections delivered by the HRA and by the UK's status as a full State Party to the ECHR will be undermined and eroded.

394. In fact, it is difficult not to come to the conclusion that the UK Government's true purpose in bringing forward these proposals is to deconstruct these existing human rights protections.

395. It is certainly the case that the inevitable practical effect seems likely to be the detachment of the UK – incrementally and by stealth – from the ECHR and from the wider obligations of Council of Europe membership.

396. The proposals presented in the consultation paper are certainly consistent with a long history of antipathy to the HRA displayed by the Conservative Party, both in opposition and in government. It therefore seems disingenuous to suggest that the "modern Bill of Rights" now proposed by the UK Government has any purpose other than to restrict and limit the enjoyment of rights which have been statutorily protected in the UK for more than two decades.

397. Within that broader context the Scottish Government has particular concerns in relation to the equality implications of the proposals.

398. Since its inception, the ECHR and the judgments of the ECtHR have helped to confront discrimination and advance equality for individuals and communities within UK society who have been marginalised and disadvantaged.

399. That has included the repeal of laws which criminalised homosexuality and the overturning of the ban on gay people serving in the Armed Forces. The ECHR and the Human Rights Act have been instrumental in ensuring that local authorities meet their obligations to vulnerable children, in ending corporal punishment in Scotland, and in protecting the right to freely express religion and belief in the workplace.

400. These are just some of the significant judgments that have upheld rights for disadvantaged groups and struck down discriminatory practices. Bringing the ECHR into domestic law through the HRA was a necessary and hugely beneficial development which has unquestionably improved access to justice for those who experience discrimination.

401. The UK Government's proposals for a "modern Bill of Rights" appear to be intended to frustrate and obstruct that existing ability to obtain justice in the UK courts, not least by restricting access to justice in cases which the UK Government regards as insignificant, trivial or spurious.

402. In fact, as this consultation response has already argued, the very real danger exists that the proposed "Bill of Rights" will encourage, facilitate and excuse a new culture of casual low-level violation of human rights by public authorities, who will be enabled – as a matter of law – to disregard the rights of any individual as long as the violation is kept below a threshold of "significant disadvantage".

403. The practical impact of any such reform will inevitably be felt the hardest by those in society who are already the most vulnerable and at greatest risk of experiencing human rights abuses.

404. That risk will be particularly acute for those on the margins of society, whose needs and interests may already be deprioritised by public policy and the decisions of public authorities. This is an extremely worrying prospect for anyone who is committed to securing equality, fairness and social justice and to addressing the pressing need to confront the inequalities which plague UK society.

405. The Scottish Government therefore regards the proposals set out in the consultation paper as unnecessary and ill-conceived. The very clear view of the Scottish Ministers is that replacing the HRA with a "modern Bill of Rights" would do significant harm to individuals and communities throughout Scotland and across the rest of the UK. To pursue such a course of action amounts not just to an act of legislative vandalism but constitutes a direct assault on the human rights and fundamental freedoms of every member of Scottish society.

406. The reality is that the HRA – and the protection it delivers – enjoys very strong public and political support in Scotland, including from four of the five political parties represented in the Scottish Parliament.

407. The degree to which informed, expert opinion also supports the HRA and opposes proposals for its replacement was itself conclusively demonstrated by the evidence submitted to the IHRAR. Many of those submissions were from experienced and very hard working campaigners for equality and social justice, who understand very well the importance of the Act and the threat posed by ill-conceived proposals for "reform".

408. In the opinion of the Scottish Government those views serve as conclusive evidence of the equality risks inherent in the proposals which the UK Government has now brought forward. The Scottish Government would therefore urge the UK Government to give detailed scrutiny to the responses received by the IHRAR and to abandon its proposals for a "modern Bill of Rights".

Scottish Government
March 2022