Human Rights Act reform consultation: Scottish Government response
Our formal response to the UK Government's consultation on its proposals to replace the Human Rights Act with a "modern Bill of Rights".
Footnotes
1. Amnesty International UK Submission to the Independent Human Rights Act Review
2. Scottish Human Rights Commission Submission to the Independent Human Rights Act Review
3. Independent Human Rights Review: Evidence from Human
4. Response from the Faculty of Advocates to the Independent Human Rights Act Review
5. Independent Human Rights Act Review call for evidence – Law Society response
6. UK Independent Human Rights Act review: Scottish Government response
7. The Scottish Government is certainly inclined to agree with Liberty that the proposals are a "blatant, unashamed power grab" by a government that "is systematically shutting down all avenues of accountability through a succession of rushed and oppressive bills". Liberty - Plans to "reform" the Human Rights Act are an unashamed power grab
8. The reality is also that the UK Government deports several thousand foreign nationals from the UK every year. In the year ending September 2021, the UK forcibly removed 2,830 foreign nationals, most of whom were ex-offenders. How many people are detained or returned? - GOV.UK
10. See also the independent review carried out by Wendy Williams Windrush Lessons Learned Review by Wendy Williams - GOV.UK (www.gov.uk)
11. The UK's departure from the EU has already resulted in a weakening of human rights protections. Protections afforded by EU's Charter of Fundamental Rights were not kept as "retained EU Law" nor were they included in the Trade and Cooperation Agreement. In 2018, the Westminster Parliamentary Joint Committee on Human Rights noted that dropping the Charter without any replacement meant a substantive diminution of rights, in particular regarding the standing of individuals to enforce their rights and the remedies available.
12. Responding to human rights judgments: 2020 to 2021 - GOV.UK
13. UK-EU Trade and Co-operation Agreement
14. [2003] EWHC 1321 (Admin); [2003] 2 FLR 566
17. Osman v. The United Kingdom (87/1997/871/1083)
19. United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [as passed]
20. United Nations Convention on the Rights of the Child
21. Article 32 of the Convention
22. CAKEISM | meaning in the Cambridge English Dictionary
23. The right "to have an effective remedy before a national authority" is itself explicitly recognised in Article 13 of the ECHR.
24. Ullah, R (on the Application of) v Special Adjudicator [2004] UKHL 26 (17 June 2004)
25. In the Scottish context, the High Court of Justiciary sitting as an appeal court is the final court of appeal in relation to all matters of the criminal law. Its jurisdiction is only subject to the authority of the UK Supreme Court in respect of devolution issues and questions of ECHR compatibility. For further information see: The Jurisdiction of the Supreme Court of the United Kingdom in Scottish Appeals
26. UK Independent Human Rights Act review: Scottish Government response
27. R v Horncastle and others (Appellants) (on appeal from the Court of Appeal Criminal Division) at 11
28. Programme for Government - gov.scot (www.gov.scot)
29. Improving the Management of Sexual Offence Cases
30. Twomey, Cameron and Guthrie v United Kingdom [2013] ECHR 578. See also Callaghan v United Kingdom
31. Press regulation in Scotland is devolved and arrangements are distinct from those in England and Wales. The Scottish Government decided in 2017 not to introduce statutory measures to incentivise participation by the press in the formal regulatory system established under the Royal Charter on independent self-regulation. Scottish Government - Press Regulation
32. There is also a clear public interest served by the reporting of legal proceedings (subject to such restrictions as may be imposed by a court). The Scottish courts have a long tradition of dealing with cases in public – sometimes referred to as "open justice" or "justice being seen to be done" – with the media carrying out an important role in ensuring that justice is seen to be done. The Lord President has made clear the continuing importance of the principle of open justice and that the general position in Scotland is that judicial proceedings must be heard and determined in public.
33. [2003] EWHC 1321 (Admin); [2003] 2 FLR 566
34. Ibid at para 37
35. Telegraaf Media Nederland Landelijke Media BV and Others v The Netherlands 34 BHRC 193
36. Goodwin v the United Kingdom 22 EHRR 123
37. Police, Crime, Sentencing and Courts Bill - Parliamentary Bills
38. Liberty - Policing Bill amendments are a dangerous power-grab
39. Amnesty International UK - MPs should vote down 'dystopian' policing bill
40. New York Times - Boris Johnson's Repressive Legislation Reveals Who He Really Is
41. Courts Reform (Scotland) Act 2014 - Explanatory Notes
42. In practice many human rights claims will proceed by means of judicial review and a permission test (in addition to the more restrictive "victim" requirement for human rights claims, discussed above) therefore already applies both in Scotland (under the Court of Session Act 1988, as amended by the Courts Reform (Scotland) Act 2014), and in England and Wales (Senior Courts Act 1981, section 31(3) and Civil Procedure Rules, rule 54.4). It is consequently difficult to see what the proposed new legislative provision would achieve. The inevitable suspicion is that the proposal is intended to restrict access to the courts so as to exclude cases that the existing permissions test would currently allow to be heard. If so, this represents a clearly unacceptable attack on access to justice in the UK.
43. Article 35 of the ECHR (as amended by Protocol 14) contains both a "significant disadvantage" provision and an exception in cases in which respect for human rights requires an examination of an application on its merits. However, these conditions are significantly different from the UK Government's proposals in both their purpose and effect. This is because the ECtHR can only exercise its jurisdiction once domestic remedies have been exhausted. The Court therefore deals with matters which have not been, or cannot be, successfully resolved by means of consideration in the national courts. It is appropriate in that context for the case load of the Strasbourg court to be filtered in a way that excludes cases which do not raise significant matters of either actual detriment or general principle. By contrast, were the same filter to be imposed at the domestic level, the practical effect would be to prevent the domestic courts from carrying out their essential function of hearing all potential cases at first instance – as a result of which cases which lack merit can be quickly identified and dismissed. One of the obvious unintended consequences of the UK Government's proposal would be to increase the burden on the Strasbourg court since it would inevitably then be required to determine the admissibility of cases which have been excluded from consideration in the UK courts. Such a development would run directly counter to the work (strongly supported by the UK) which has been undertaken to improve the efficiency and effectiveness of the Court.
44. As noted above, section 7 of the HRA already includes a "victim" test for standing, as provided for in Article 34 of the ECHR.
45. See footnote (above) in relation to the very different purpose and effect of the "significant disadvantage" test in Art 35 of the ECHR, and the related requirement on the Court not to rule a case as inadmissible where respect for human rights requires an examination of an application on its merits.
46. The relevance of Osman v. The United Kingdom (87/1997/871/1083) as an important illustrative example is considered above, at paragraphs 58 to 68.
47. Human Rights Watch - UK's 'Black Cab Rapist' Ruling Shows Importance of Human Rights Act
48. National Performance Framework - Human Rights
49. Joint Committee on Human Rights - Oral evidence taken on 3 February 2021, HC 1161, Q27
50. Ibid.
51. [2004] UKHL 30
52. The obligation in section 3 is not confined to the higher courts. This can be contrasted with the more restricted scope of the power to issue a Declaration of Incompatibility under section 4 (see the definition of "court" in section 4(5) of the HRA). The database would therefore have to capture all reported judgments in the lower courts, including Sheriff courts in Scotland.
53. Judicial Review and Courts Bill
56. The Scottish Parliament passed motions in [2017] and [2014] expressing support for the Human Rights Act and calling on the UK Government to avoid actions that weaken international human rights.
57. Devolution Guidance Note 10, Post – Devolution Primary Legislation affecting Scotland
58. See also page 49 of the Scottish Government's Programme for Government 2021-22
60. Joint Committee on Human Rights: The Meaning of Public Authority Under the Human Rights Act
61. Ali v Serco Ltd [2019] CSOH 34
62. Ali v Serco Ltd [2019] CSIH 54
63. The Bill was subsequently referred to the UK Supreme Court by the UK Government on competence grounds including, inter alia, in respect of section 6. The competence of section 6(3A) of the Bill was not, however, in issue in that case. The judgment of the court is available here.
64. United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [as passed]
65. Nationality and Borders Bill
66. Overseas Operations (Service Personnel and Veterans) Act 2021
67. See for example interventions by the UN High Commissioner for Human Rights and correspondence with the International Criminal Court
68. The ECtHR may well be asked, in due course, to address the gross human rights violations committed in Ukraine by the Russian Federation. Both countries are full States Parties to the ECHR and are bound by its obligations.
69. It is notable that the consultation paper itself provides no convincing evidence that the HRA presents a significant barrier to deportation where there is a risk to the public. Despite the claim (on page 38) that "discretion left to the courts" has been "used to dilute the intended impact" of the UK Government's immigration policies, only two specific examples are citied – AD (Turkey) and OO (Nigeria). In the former, the Upper Tribunal made very clear that the decision to overturn the deportation order on Article 8 grounds was "rare and exceptional". In the latter, the Upper Tribunal was explicit in its endorsement of the view reached by the First-Tier Tribunal that a "very high threshold" would need to be satisfied "if the public interest in deportation is to be outweighed".
70. How many people are detained or returned? - GOV.UK
71. In 2018, the then Home Secretary, Sajid Javid, in a letter to the Home Affairs Committee confirmed that 83 people had been wrongly removed from the UK.
72. The EU-UK Trade and Cooperation Agreement | European Commission (europa.eu)
73. In September 2021 the Investigatory Powers Tribunal (IPT) awarded £229,471 in respect of actions by the Metropolitan Police which had "grossly debased, degraded and humiliated" a female environmental activist. However, awards of this size are unusual.
74. [1995] 21 EHRR 1997
Contact
Email: douglas.clark@gov.scot
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