Human Rights Act reform consultation: Scottish Government response

8. Do you consider that a condition that individuals must have suffered a 'significant disadvantage' to bring a claim under the Bill of Rights, as part of a permission stage for such claims, would be an effective way of making sure that courts focus on genuine human rights matters? Please provide reasons.

170. The Scottish Government does not object in principle to the use of permission mechanisms as a means to filter out cases which are ill-founded or have no realistic chance of success. In fact, the Courts Reform (Scotland) Act 2014^[41] introduced a permissions stage in which the court assesses whether an application for judicial review "has a real prospect of success"^[42].

171. Moreover, the HRA already contains, in section 7, a further requirement that a person can only bring proceedings if they are a "victim" of the unlawful act for the purposes of Article 34 of the Convention. Analogous provision is made in section 100(1) of the Scotland Act.

172. However, it is a very different matter to assert – as this proposal necessarily does – that some human rights breaches are significant whilst others are, in effect, merely trivial in nature.

173. The firm view of the Scottish Government is that any violation of human rights is a serious matter, and is necessarily of significance not just to the individuals or communities who are directly affected, but also to wider society. For that reason it is essential that there is free and unrestricted access to the courts and to a legal remedy in all circumstances where there is good reason to believe that rights have been breached.

174. Further, the Scottish Government would challenge the premise in para 219 of the consultation paper that unsuccessful claims, even those which are ultimately shown to be without merit, undermine public trust in the justice system. Instead, the Scottish Government is strongly of the view that the price of a fair and effective justice system which enjoys full public confidence is that every member of society has a right to bring their claim before an impartial and objective court or tribunal. If the claim is weak, it will not succeed. It is important, nonetheless, that justice should be seen to be done and that no-one is unreasonably or inflexibly denied the opportunity to obtain a definitive judicial decision.

175. It would therefore be entirely wrong, for fundamental reasons of principle, for government to seek to obstruct or prevent access to justice on the basis of a subjective test of "significant disadvantage"^[43].

176. The degree to which a claimant has suffered actual disadvantage is relevant at the end of the case, when the court is required to reach a decision on the nature and extent of any remedy. But this is an aspect to any case which must not be prejudged – not least because an accurate assessment can only properly be made once the court has had the benefit of hearing the facts of the case in full.

177. A provision of the kind proposed would – at a practical level – run the serious risk of encouraging, facilitating and excusing a culture of casual low-level violation of human rights by public authorities, who would 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".

178. In practice, since the victim of any breach is inevitably at a disadvantage from the outset, a provision of this kind would also discourage potential claims, in particular by those in society who are most vulnerable and at greatest risk of experiencing human rights abuses. It would thereby restrict their access to justice. That risk would 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.

179. At the same time, given the subjective nature of the legal test being introduced, the provision would undermine legal certainty in a way that could cause difficulty for public authorities. In practice, it is likely that the meaning of the term "significant disadvantage" in relation to human rights would require to be established through case law and the result, at least initially, could be an increase in the number of cases which sought to test the limits of the law in this area. By contrast, the existing requirements of the HRA are well understood^[44].

180. In summary, any measure which creates barriers to justice – and which results in a situation in which substantive breaches of the UK's international human rights obligations are simply overlooked or dismissed as "insignificant" - is neither consistent with the purposes of the ECHR nor with the general principles which inform the Scottish legal system. For that reason, the Scottish Government opposes the UK Government's proposal in the strongest terms.

181. Taking forward the proposal would do very real damage to public confidence in domestic legal protections, to the UK's international standing, and to the integrity of the international human rights framework.

182. The Scottish Government's overall position continues to be that the HRA in its current form is a carefully drafted and highly effective statute, and one which has proven its practical worth in safeguarding human rights across the whole of the UK for more than two decades.

183. As the overwhelming weight of evidence submitted to the IHRAR unequivocally demonstrated, there is no rational or defensible case for "reform".