A Human Rights Bill for Scotland: consultation

Part 8: Ensuring Access to Justice for Rights-Holders

"I think you're disadvantaged before you've even started because… the fact that you are this little minnow, you know, and there's this sense of just being totally overwhelmed. And I can understand that if some people want to access justice in law and we're talking about the Human Rights Act, I can see a lot of people going, you know what, I really don't want to get involved with all of that, because why would I put myself through all that grief, and upset? And so I'm just going to avoid it, and then therefore, they don't get the justice that maybe they should get?" - Member of Lived Experience Board

Human Rights Taskforce Recommendation 21

Through engagement with key stakeholders, including those who face additional access to justice barriers, further consider accessible, affordable, timely, and effective remedies and routes to remedy that will be provided for under the framework.

Human Rights Taskforce Recommendation 26

As part of the development of the framework, to further explore access to justice, taking into account the views of right-holders, in order to consider how the framework could help provide a more accessible, affordable, timely, and effective judicial route to remedy.

Ensuring effective access to justice where a rights-holder has had their rights potentially infringed by a public authority is vital. It is an unavoidable fact that things can and do go wrong, and where this happens that needs to be resolved quickly and early. So we want to build on and strengthen the existing infrastructure of devolved public services, scrutiny bodies, independent complaints mechanisms, human rights bodies, and the courts, to strengthen access to justice.

Whilst sometimes the court may ultimately be the best place to consider a particular issue (for example, where an argument is being made that a piece of domestic legislation is incompatible with incorporated treaty rights, or there is a systemic problem with multiple causes spread across multiple systems), and access to courts remains a key feature of these proposals, for most individuals and for many issues, going to court may not be the best solution. We know that for rights-holders, seeking a remedy can feel very challenging and have a big impact on them personally, and so it is important to support duty-bearers to get human rights based decisions right first time.

We think that strengthening the approach to accountability, advice and advocacy are key components to help resolve issues as quickly as possible and avoid, as far as possible, people having to go to court. Ensuring those components work well will help to make rights real for people and to embed a rights-based approach in public authorities and those who hold them to account. We want a move to a genuinely multi-institutional model of rights protection and stronger collaboration between duty-bearers who will be tasked with upholding the rights in the Bill.

When the rights and duties in the Bill are engaged, remedies need to be:

• Accessible – the individual understands clearly how they can resolve their issue through the system.
• Affordable – the financial cost to the individual needs to be limited as far as possible.
• Timely – the issue needs to be dealt with at the earliest opportunity.
• Effective – the remedy needs to deliver a better outcome for the individual.

Getting things right first time

"People lack the energy to [pursue a complaint]. And so they don't, because they're already consumed with the problems that are going on in their day to day life. And actually having that energy, not to mention, money and time to pursue a formal complaint that is going to take up all of your emotional energy, it will be really stressful, and you've already got enough problems. So they let it slide and I see time and again, really bad infringements are let slide. Or very often actually, it can just be lots of small infringements from a whole myriad of different organisations and different individuals. And it's really difficult to articulate that because there's lots of little small things. And then you finally might get to the straw that broke the camel's back."  - Member of Lived Experience Board

Human Rights Taskforce Recommendation 19

The Scottish Government should consider how scrutiny bodies can be supported through provision of adequate resources and clear guidance on their duties within the framework to effectively oversee the framework implementation plans of duty-bearers.

Human Rights Taskforce Recommendation 22

Further consider specific duties being placed upon front-line complaint handling mechanisms and scrutiny bodies in order to enhance access to justice and ensure human rights obligations are given effect by all public authorities.

The Lived Experience Board emphasised the importance of initial complaints being addressed effectively, and a need to support front-line workers to respond effectively. They also highlighted the importance of a clear process that is easy to follow for rights-holders. So we want to ensure that public authorities have robust and effective front-line handling mechanisms in place to deal with complaints in relation to the rights in the Bill. We want to build on existing structures and put human rights at the heart of the system, rather than create separate, additional processes for human rights complaints. After all, a different system could cause confusion for rights-holders in what can often seem a complex and overwhelming system to navigate. We have engaged with a range of stakeholders, including the Scottish Public Services Ombudsman (SPSO), SHRC and scrutiny bodies, to help shape these proposals.

Advocacy

"I think advocacy is a big thing. I'm thinking about one time that I went to a review without an advocate and that was a big mistake that I've never made twice. Because there's also an issue of when the authorities are acting in concert, there's a lot of them and just one of you. So there's a lot of voices against one voice and you can't win against that." Another member stated "Advocacy needs to be available for parents, for whole family, for carers, and recognising that sometimes carers can speak up for people who are non-verbal." - Member of Lived Experience Board

When we talk about advocacy, we are referring to advocacy, information and advice provided to and for rights holders in relation to the rights in the Bill. Advocacy services are there to provide support and representation to empower individuals to claim their rights. They are an important resource in helping to ensure individuals can realise their rights and access justice where things go wrong. Given routes to remedy can be complex, advocacy services can play a crucial role in helping rights-holders navigate the system.

The importance of advocacy has been a common theme in the discussions of the Lived Experience Board. The Taskforce did not make a specific recommendation in relation to advocacy but did note the importance of making improvements to access to justice through advocacy and representation and recognised the potential for advocacy services being available to more people when they need them. They noted that remedies become difficult to navigate without information and advice on rights and independent advocacy.

There are a number of existing advocacy services which already provide support to help people realise their rights. There are also duties to provide independent advocacy in a number of areas, including mental health services, social security and in children's hearings. The UNCRC Bill requires Scottish Ministers to set out arrangements to ensure children are able to participate in decisions that affect them with access to support and representation, like advocacy services, as part of the Children's Rights Scheme. That Bill also places a duty on public authorities listed in section 16 of the Bill to prepare and publish reports on what they have done to comply with the UNCRC requirements (as set out in the schedule of that Bill) and to secure better or further effect of children's rights. Such reports may include details on the provision of advocacy support but this is not set out on the face of the Bill. The reports will be required on a three yearly basis (as they were under the Children and Young People (Scotland) Act 2014).

We are carefully considering the approach taken in the UNCRC Bill, and its applicability given the specific rights we are incorporating and the wide variety of rights-holders. We are open to views on the most effective means of supporting people to access the rights in the Bill. Our key aim is to improve access to justice in the context of the Bill and ensure that services are equipped to provide the support rights-holders need.

Question

27. What are your views on the most effective ways of supporting advocacy and/or advice services to help rights-holders realise their rights under the Bill?

Legal Aid

Access to legal aid is an important aspect in supporting rights-holders to claim their rights through the courts, where they choose to. We remain committed to reforming the current system of legal aid to place the user at its centre.

Improving complaints handling

The SPSO has an important role in publishing complaints handling procedures, alongside monitoring and supporting best practice in complaints handling in relation to many devolved areas. To help public authorities develop their front-line complaints processes in relation to the rights in the Bill, we are exploring with the SPSO scope for them to update their model complaints handling procedures so that they reflect the obligations in the Bill. Under this proposal, the SPSO would be able to issue declarations of non-compliance when a specified public authority is found to have acted incompatibly with these updated procedures.

Escalating a complaint

When complaints cannot be resolved at this first stage by the public authority involved, they can be escalated to the SPSO for bodies under its remit. The SPSO are the final stage for complaints about many devolved public services in Scotland including councils, the health service, prisons, water and sewerage providers, the Scottish Government, universities, and colleges. Human rights are often a core part of the issues that individuals are experiencing so we think it makes sense to further integrate this into SPSO's remit. To do this, we are proposing to:

• Develop a more specific human rights remit for when the SPSO is dealing with an escalated complaint. This would not require the applicant to make a specific reference to the rights in the Bill and would allow the SPSO to consider the duties in the Bill as part of any complaint.
• Remove the restriction on the SPSO whereby they are not able to receive oral complaints unless there are special circumstances. This will help improve accessibility of the system.
• Further consider own initiative investigation powers for the SPSO. This could allow them to look into areas of concern where no complaint was made or consider beyond an individual complaint where other individuals may be affected. We will also further consider developing a mechanism for people, including advocacy organisations, to make suggestions to the SPSO for areas of own-initiative focus.
• Maintain the non-binding nature of any SPSO recommendations to give the SPSO maximum flexibility in issuing recommendations. Experience shows that recommendations from the SPSO are usually complied with, and the SPSO have the ability to lay a special report before the Scottish Parliament if they are not. Furthermore, non-binding recommendations may be helpful to allow the SPSO to work with public bodies constructively in order to secure better compliance. Recommendations for redress are flexible and can include an apology and practical action to mitigate any detriment.

We will further consider how pursuing a complaint through the SPSO could interact with court routes to remedy, such as judicial review.^[27] We know that police complaints are one area where complaints are dealt with outside the jurisdiction of the SPSO, and that there are some areas where there is overlapping jurisdiction between the Care Inspectorate and the SPSO in relation to investigating complaints. We will consider these issues further.

Scrutiny bodies

Scrutiny bodies can play an important role in holding devolved public services to account in relation to human rights and helping to drive culture change in service delivery.^[28] Examples of scrutiny bodies include the Care Inspectorate, HM Inspectorate of Prisons for Scotland and the Scottish Housing Regulator. We want to create a more specific human rights remit for relevant scrutiny bodies, to strengthen their ability to ensure human rights are embedded in public services, within the limits of devolved competence.^[29] To do this, we are proposing to:

• Require scrutiny bodies, when undertaking their functions, to assess the bodies they oversee in light of the human rights obligations in the Bill, and to consider how these bodies can further mainstream human rights in the Bill.
• Enable scrutiny bodies to work more closely with each other – for example, making it easier to share information relating to human rights matters, being able to work together when looking at human rights issues and letting other scrutiny bodies know if there may be overlap in the issues they are looking at.
• Require scrutiny bodies (including the SPSO) to inform the SHRC of any systemic human rights issues they come across, as well as informing other relevant organisations (such as the SPSO, the Children and Young People's Commissioner Scotland, the Mental Welfare Commission and Environmental Standards Scotland) of any systemic human rights issues that may be relevant to their organisations.

Questions

28. What are your views on our proposals in relation to front-line complaints handling mechanisms of public bodies?

29. What are your views in relation to our proposed changes to the Scottish Public Services Ombudsman's remit?

30. What are your views on our proposals in relation to scrutiny bodies?

Powers of the Scottish Human Rights Commission (SHRC)

Human Rights Taskforce Recommendation 11

The Scottish Human Rights Commission (SHRC) should be given additional powers including taking test cases and conducting investigations, and any further extended powers should be considered.

The SHRC was established in 2008, and functions as Scotland's National Human Rights Institution. It is an independent parliamentary commission, and currently holds A-status accreditation within the United Nations (UN) system. It has a general duty to promote human rights and, in particular, to encourage best practice in relation to human rights. It has the power to intervene in civil proceedings (with the exception of children's hearings), subject to the civil courts giving it leave to do so. In these instances, it may act as an authoritative third party, rather than representing one side or another. It also has the power to undertake inquiries in relation to the policies or practices of Scottish public authorities (with restrictions on the ability to do so in relation to courts and tribunals) with the ability to compel evidence and to enter places of detention. It does not have the power to assist in claims or in legal proceedings, or to provide advice, guidance or grants linked to proceedings. The UNCRC Bill will provide the SHRC with additional powers, including the power to bring proceedings in the public interest and to intervene in proceedings in which a person claims that a public authority has acted (or proposes to act) in a way which is incompatible with the UNCRC requirements. To do so, the Bill will modify the Scottish Commission for Human Rights Act 2006 to disapply the existing prohibition on assisting in claims or legal proceedings but only in relation to proceedings under the UNCRC Bill. The UNCRC Bill will further require the courts to notify the Commissioners (the SHRC and the Commissioner for Children and Young People in Scotland) where a court is considering making a strike down declarator or incompatibility declarator in relation to legislation or where a compatibility question arises in any proceedings before a court or tribunal.

We are exploring the potential for the SHRC to have new powers in the following areas, which would require the Human Rights Bill to amend the Scottish Commission for Human Rights Act 2006. In particular we see value in extending the powers of SHRC to include the following in support of Bill implementation, oversight and accountability:

• Powers to bring or intervene in civil proceedings under the Bill;
• An investigatory power which allows for accountability for systemic issues relating to the rights in the Bill (relating to civil matters).

We have noted a number of wider asks in relation to specific Commissioners focused on advancing rights for specific groups, or in specific areas. This includes proposals for Commissioners for women, disabled people and older people.

To the extent that any new powers for SHRC overlap with those we are considering for the SPSO, we would want to create clear expectations on information sharing. This is so that the SPSO can appropriately inform the SHRC of any relevant matters, as well as ensuring strong communications between the two bodies. We also want to consider mirroring any new powers for SHRC in the remit of the Children and Young People's Commissioner Scotland (CYPCS), given the rights in the Bill will apply to children. We will engage further with the SHRC, the CYPCS and the Scottish Parliamentary Corporate Body on new powers or extension to the bodies' general mandate, and we would welcome views on what specific powers the SHRC should have in order for the institution to play a key role within the multi-institutional framework for protecting and realising human rights we are seeking to build.

Questions

31. What are your views on additional powers for the Scottish Human Rights Commission?

32. What are your views on potentially mirroring these powers for the Children and Young People's Commissioner Scotland where needed?

Accessing Justice through the courts

"Whenever we've come across breaches, I've always felt that by speaking up, I'm speaking up for lots of people, but the burden does seem to be on me… in no way can I take on the entire right to play or right to education single handed, it's quite an expectation." "We don't create the situation, it is created by the government not getting things right, by them not having enough controls in place to protect us in the first place. So, you know, why are we having to pay to go to court to say you've got it wrong?"  - Member of Lived Experience Board

Judicial remedies are one important part of making sure the Bill has a positive impact for rights-holders. In our approach to court routes to remedy under the Bill, we want to lessen the burden on individuals seeking justice, and to make it easier for those issues which affect many people to be identified and resolved.

Who can raise cases

Human Rights Taskforce Recommendation 23

Explicitly allow for bodies with 'sufficient interest' to bring proceedings on behalf of claimants.

'Standing' refers to who has the legal right to raise an issue with the courts for judicial review. The current test for standing in relation to judicial review proceedings in the Court of Session is the 'sufficient interest test' (except where based on the Human Rights Act 1998). This test requires an individual to "demonstrate a sufficient interest in the subject matter of the [judicial review] application".^[30] This means that individuals, as well as organisations wishing to advance a widely shared interest, may bring cases to court where they can demonstrate a sufficient interest. This is different to the narrower "victim test" under the Human Rights Act 1998, where a person must demonstrate, in effect, that they are directly affected by the breach they are alleging.^[31] This largely restricts organisations from bringing public interest litigation and is less open than the sufficient interest approach.

The UNCRC Bill makes no specific provision on standing, which means that the ordinary rules about who can bring cases in court (in other words, the sufficient interest test) would apply to claims brought under that Bill. The UNCRC Bill also provides new powers to both the Children and Young People's Commissioner for Scotland and the Scottish Human Rights Commission to bring or intervene in legal proceedings. We want to mirror this approach to standing for civil proceedings brought under the Human Rights Bill, so that civil society organisations with a sufficient interest in a case will be able to bring proceedings if the courts deem it appropriate in a particular instance. Powers for SHRC and potentially CYPCS to bring or intervene in civil cases under the Bill would strengthen the ability of those bodies to support individuals and address systemic issues through the courts.

Standard of review

Human Rights Taskforce Recommendation 24

Include in the framework an approach to standard of review of the reasonableness of a measure that takes into account international human rights law standards and comparative best practices.

'Standard of review' means the legal standards that courts use to reach a decision about whether a decision maker has acted lawfully. The 'Wednesbury test'^[32] is one of a range of tests applied by the courts in judicial review proceedings on public law grounds. Under the Wednesbury test, a decision may be found to be unlawful if it is so unreasonable that no reasonable decision maker could have reached it. This is a high bar to overcome. Another test that the domestic courts apply is the 'proportionality' test under the Human Rights Act 1998 regarding ECHR compliance, which involves assessing whether any restrictions of a right by a decision-maker are a proportionate means of achieving a legitimate aim. There are similarities between the tests, but where a court is applying the principle of proportionality it will generally look more closely at the correctness of the decision given the information available than it would by just applying the Wednesbury test.

Under the Human Rights Bill, we are considering whether the approach to assessing reasonableness should be different to the Wednesbury test, and are therefore considering whether we should lower the threshold for a decision-maker being found to have acted unlawfully. This is because we want to ensure that court remedies are as accessible as possible for rights-holders. We will further consider what such an approach could look like in practice, carefully taking into account other current approaches and international models, and the views of the courts, the legal profession and other stakeholders. Examples of international standards of review can be found in guidance prepared by the Committee on Economic, Social and Cultural Rights (CESCR).^[33]

When considering this issue, we will also take account of other points which, depending on the circumstances, the courts may consider already when dealing with a judicial review. These include whether the decision-maker acted within their powers; carried out a consultation if required to do so or there was a legitimate expectation that a consultation would be carried out; took account of responses made to any consultation; took account of relevant factors when making the decision; did not take account of irrelevant factors; and followed due process, including carrying out any required impact assessments.

Judicial Remedies

Human Rights Taskforce Recommendation 25

Further consider how the framework could provide for the full range of appropriate remedies under international law to be ordered by a court or tribunal when needed, including targeted remedies which could provide for non-repetition of the breach (such as structural interdicts).

In Scotland, a range of remedies are already available in relation to judicial review.^[34] Specifically, the rules of the Court of Session state:

"the court in exercising its supervisory jurisdiction in respect of an application for judicial review may... make such an order in relation to the question as it thinks fit, whether or not such an order was sought in the application, being an order that could be made if sought in any action or petition including an order for reduction, declarator, suspension, interdict, implement, restitution, payment (whether of damages or otherwise) and any interim order."^[35]

This means there is quite a broad scope for the courts to order what they think is appropriate, such as a temporary decision pending further investigations, stopping or suspending something, or making an order for damages, for example.

The UN General Assembly has adopted basic principles and guidelines on remedies for serious international human rights violations.^[36] Broadly speaking these can be summarised as:

• Restitution,which should wherever possible restore the victim to the original situation before the human rights violation occurred.
• Compensation,which issimilar to payment of damages.
• Rehabilitation where a violation of the right has caused significant medical and psychological harm. This could include access to rehabilitation services (e.g. social services, medical services, or mental health services to ensure the claimant is supported in recovering from the harm caused by the rights violation).
• Satisfaction,which iswide-ranging and can include a number of aspects aimed at stopping continuing violations, disclosure of facts, an official declaration restoring dignity/reputation, public apology, sanctions, commemoration and tribute, and amendments to educational materials to reflect truth in relation to violations.
• Guarantees of non-repetition (structural interdicts) – this approachcan include reviewing and reforming laws.

We are considering the extent to which effective remedies can be provided under the current suite of domestic remedies already available to the courts in Scotland. This includes consideration of whether existing remedies could allow aspects of the structural interdict approach, as suggested by the Taskforce, to be used as a form of remedy in relation to the duties in the Bill. Structural interdicts are intended to address structural issues, which impact a large number of people, rather than individual issues. They could involve an aggregate of remedies, where the courts combine different options. However, they could also potentially involve a greater role for the courts in reviewing progress or approving plans of action. We will further consider the potential role of structural interdicts under the Bill. The choice of remedy in any particular case is of course a matter for the courts.

Dealing with Incompatibilities

Like the Human Rights Act 1998, we propose including a provision so that, so far as possible, legislation falling within the ambit of the Bill must be read and given effect in a way which is compatible with the rights in the Bill. The equivalent provision in the UNCRC Bill on interpretation of legislation will be subject to reconsideration by the Scottish Parliament following the Supreme Court judgment on the legislative competence of that Bill, and we will be mindful of the terms of that judgment and the outcome of the reconsideration process in developing our proposed approach.

We are carefully considering appropriate remedies for courts where they find an incompatibility in legislation falling within the ambit of the Bill. The UNCRC Bill contains provisions for strike down and declarators of incompatibility, although these provisions (among others) will be also subject to reconsideration by the Scottish Parliament following the Supreme Court judgment on the legislative competence of that Bill. We are mindful of the need to ensure remedies that best advance the realisation of the specific rights we are incorporating, and we are open to views on what remedy is appropriate in cases of relevant legislation being found incompatible. Our key considerations will be providing the best outcome for advancing the implementation of rights within a clear and accessible framework for remedy. We will also ensure that, in considering remedies for incompatible legislation in the Human Rights Bill, we remain mindful of the outcome of the UNCRC Bill reconsideration process.

Questions

33. What are your views on our proposed approach to 'standing' under the Human Rights Bill? Please explain.

34. What should the approach be to assessing 'reasonableness' under the Human Rights Bill?

35. Do you agree or disagree that existing judicial remedies are sufficient in delivering effective remedy for rights-holders?

36. If you do not agree that existing judicial remedies are sufficient in delivering effective remedy for rights-holders, what additional remedies would help to do this?

37. What are your views on the most appropriate remedy in the event a court finds legislation is incompatible with the rights in the Bill?