Human Rights Act reform consultation: Scottish Government response

5. The government is considering how it might confine the scope for interference with Article 10 to limited and exceptional circumstances, taking into account the considerations above [in the consultation paper]. To this end, how could clearer guidance be given to the courts about the utmost importance attached to Article 10? What guidance could we derive from other international models for protecting freedom of speech?

146. The Scottish Government does not believe that Article 10 rights should be automatically or inflexibly prioritised over those set out in Article 8.

147. To do so would be to expose individual members of the public, including potentially vulnerable individuals, to abuses perpetrated by commercial organisations which stand to gain financially from unnecessary and gratuitous intrusions into matters which should properly be regarded as private in nature.

148. Instead, a balance must be struck which explicitly allows for (and protects) publication which is in the public interest but which otherwise safeguards privacy. That balance is already a requirement of the HRA and amendment is unnecessary.

149. The Scottish Government would particularly caution against attempts to develop a domestic interpretation of Article 10 which significantly diverges from the interpretation given to the same rights by the ECtHR. To do so would risk going beyond the scope of the national "margin of appreciation" which is available to individual States Parties, and would in turn risk an increase in the number of individual applications to Strasbourg in cases where, for example, Article 8 rights had not been properly protected under UK laws.

150. Divergence or discrepancy of that kind would necessarily then require to be retrospectively addressed in order to ensure effective protection for the rights of individual members of the public and to maintain full compliance with the UK's international obligations. The resulting confusion, and the potential threat to legal certainty, would be in the interests of no-one.

151. In relation to the specific question of guidance which might be given to the courts it should be noted that, in Scotland, it is the role of bodies such as the Scottish Civil Justice Council and the Judicial Institute of Scotland, under the leadership of the Lord President of the Court of Session, to develop court rules and provide training to the judiciary.

152. These bodies are best placed to assess the need for guidance and to address any requirement for changes to procedure or practice which may be necessary to secure ECHR rights, including those protected by Article 10. They exercise this function within the wider context of arrangements which support the administration of justice in Scotland's courts, including measures to promote open justice.

153. On a particular point of detail, the Scottish Government is concerned by the statement on page 84 of the consultation paper that "where a person is wanted for a crime, there should be no question of limiting the publication of their name and photograph because of their right to a private life".

154. This statement appears to significantly misrepresent the judgment reached by the court in the case cited in the consultation paper at footnote 142 (R v Chief Constable of the Essex Police)^[33]. In reality the scheme in question related to the "naming and shaming" of offenders (who were not currently wanted for a crime). The court gave proper consideration to a number of relevant factors, including the potential impact on the family of the individuals concerned (in particular, the need to safeguard the Article 8 rights of children).

155. No judgment was made by the Court as to whether or not the scheme as a whole could be operated lawfully. It was held by the Court that this would be fact-specific and "depend upon the circumstances of the offenders solicited for the Scheme and how it is operated in practice."^[34] The way the scheme was to operate in practice would be a matter for the police.

156. There is consequently no sense in which the outcome of the case can properly be presented as preventing the publication of the name and photograph of a person who is being actively sought in connection with a crime.

157. Although the facts of the case are more accurately presented elsewhere in the consultation paper (on page 40), potentially misleading statements of the kind made on page 84 are unhelpful and risk undermining properly-informed public debate in relation to the importance and practical effect of the HRA.

158. The obvious further danger exists that any resulting policy decisions, and legislation, will negatively affect established human rights protections in the UK, having been based on inaccurate evidence and/or a mistaken understanding of the law.

159. The Scottish Government would therefore urge the UK Government to base its approach to the HRA firmly in a factually-accurate analysis of the benefits delivered by the HRA, and to abandon its current proposals for "reform".