UK Independent Human Rights Act review: our response

Introduction

1. The Scottish Government welcomes the opportunity to respond to the Review Panel's call for evidence.

2. In doing so, the Scottish Government particularly welcomes the assurance that the Review will not seek to re-examine or diverge from any of the substantive rights contained within the European Convention on Human Rights ("the Convention"). It is similarly welcome that the Review will not be concerned with the question of whether the UK should remain a signatory to the Convention.

3. In relation to both of these matters, the Scottish Government regards the continuing and unequivocal adherence by the United Kingdom to the Convention, and to the international institutional framework which supports its implementation, as an essential requirement of both domestic and international policy.

4. The Scottish Government has made clear that it would robustly oppose any attempt to weaken or undermine UK commitment to the Convention, together with any actions which seek to distance the UK from membership of the Council of Europe.

The UK Record

5. As the Chair of the Review Panel correctly observes in his preface to the call for evidence, the UK's historical contribution to the development of human rights law has been of immense importance. The UK was instrumental in the drafting and promotion of the Convention, and was the first state to ratify, in 1951.

6. That is a record of which the UK as a whole should be proud. It is a matter of profound regret that representatives of the UK Government have, in more recent times, come increasingly to be seen as detached from, and often openly hostile to, the Convention and its institutions.

7. Repeated attempts have been made since 2011 to advance an agenda which has been explicitly directed at securing the repeal, replacement or "reform" of the Human Rights Act 1998 ("HRA"). The fact that those attempts have been defeated by concerted cross-party opposition and the efforts of civil society campaigners should not disguise the ongoing existence of a real and present danger.

8. The Scottish Government's responses to previous exercises which threatened the integrity or the existence of the human rights safeguards contained in the HRA are a matter of public record^[1]. In practice, and despite the narrower remit of the current Review, much of this previous commentary remains relevant.

A Precautionary Approach

9. Against that background, the Scottish Government acknowledges, and again welcomes, the Panel's intention to address the questions identified in its Terms of Reference in an objective and politically-neutral manner.

10. In doing so, the Scottish Government nonetheless asks the Panel to recognise that any exercise directed at reviewing the working of the HRA must proceed with the utmost caution, and with a very keen awareness of the dangers inherent in the current political and constitutional environment.

11. It is therefore incumbent on the Review Panel to give close and careful consideration to the wider implications of its work. In doing so, it should also critically evaluate the assumptions which inform the questions posed in its Terms of Reference.

Danger of Proceeding from False Premises

12. The Scottish Government disagrees, for example, with the premise which underlies Theme 2 of the Review's questionnaire.

13. The Scottish Government does not believe that the courts "have been drawn unduly into matters of policy". In adjudicating in human rights cases the UK courts have merely carried out their proper function, which is to interpret and apply the law, and to do so objectively and without fear or favour.

14. The fact that the government of the day may happen to dislike or disagree with the judgment of the court in a particular case does not render that judgment "political" or constitute an interference in matters of policy.

15. What it does mean is that the government in question has erred as a matter of law, and that it must rectify that error in line with the ruling of the court. The practical consequence may, of course, be that a particular policy cannot be implemented in the manner Ministers might have wished. But again, that is in reality a question of whether the law permits the preferred course of action, not one of subjectivity on the part of the court.

16. That state of affairs, reflecting as it does the most important and fundamental of constitutional safeguards, is not one which should trouble any government which is committed to the principles of democracy, human rights and the rule of law.

17. A critical part of the core skillset of both government officials and Ministers is the ability to find alternative, and legally compliant, means to achieve legitimate policy aims. A problem will therefore only truly arise where it is the policy objective itself which is legally-questionable and liable to be blocked by the judgment of a court. Self-evidently, policies which have as their purpose the obstruction or denial of human rights will be at particular risk of challenge. But these are not policies which any modern democratic government should contemplate pursuing.

18. The idea that there has somehow been an "over-judicialising" of public administration in the UK must therefore be regarded as a political construct in its own right, and one that in practice serves an agenda which is at odds with human rights principles and the existence of necessary constitutional constraints on the exercise of state power.

Enhancing and Extending Safeguards

19. For its part, the Scottish Government has made clear in its response to previous initiatives, such as the Commission on a UK Bill of Rights, that its overall position on the potential amendment or extension of the HRA is not dogmatic or inflexible. Where a genuine and convincing human rights case for improvement can be made, the Scottish Government remains open to that possibility. The Scottish Government was, for example, supportive of Convention-related adjustments made to the Criminal Procedure (Scotland) Act 1995 by the Scotland Act 2012^[2].

20. Moreover, the Scottish Government is itself collaborating with a widely-drawn group of public sector, civil society and other partners (including the Scottish Human Rights Commission and the Equality and Human Rights Commission) to develop proposals aimed at significantly extending the reach of human rights law in Scotland, by incorporating further international human rights treaties into domestic law.

21. The resulting proposals, which are currently being developed by the National Taskforce for Human Rights Leadership, are expected to be agreed and published before the end of the current session of the Scottish Parliament. The proposals will be of interest to the Review Panel and the Scottish Government will ensure that the Panel is notified of publication in due course.

22. The Panel will also wish to be aware that a Government Bill to incorporate the UN Convention on the Rights of the Child ("UNCRC") into Scots law has completed Stage 2 in the Scottish Parliament, and is expected to be passed before the end of the current parliamentary session^[3].

23. A necessary feature of all such legislative proposals, without which the Scottish Government would not be willing to support any change to the law as it currently stands, is that both the purpose and effect must be directed at enhancing the ability of individual members of society, as rights-holders, to assert and vindicate their rights in the face of actions by public authorities and state institutions.

24. That includes the ability of the individual, as the subject rather than the object of an effective human rights regime, to challenge the actions of both government and the legislature, by seeking (where necessary) an effective remedy in the courts.

25. It is certainly the case, in the view of the Scottish Government, that the corollary to the further empowerment of individual rights-holders is that the accountability of public institutions at all levels, and their ability to perform their functions in a manner that fully respects, protects and fulfils human rights, should also be extended and enhanced.