UK Independent Human Rights Act review: our response

The Scottish Context

26. As Scotland's national government, exercising executive responsibility for devolved matters in Scotland, the Scottish Government is committed to embedding human rights at the heart of devolved policy-making and public service delivery.

27. Since 2018, that commitment has been reflected, inter alia, in Scotland's National Performance Framework ("NPF")^[4], which, as well as listing respect for the rule of law as a core value, establishes a human rights National Outcome relevant to the work of all public authorities with devolved and mixed functions. This states that:

"We respect, protect and fulfil human rights and live free from discrimination"

28. That commitment to human rights is itself a characteristic of the legal and constitutional context within which the Scottish Government, and Scottish public authorities in general, exercise their functions.

29. Human rights are, of course, universal and inalienable in nature and, as such, they are also essentially constitutional in both their intent and application. In that sense, human rights requirements should properly be regarded as occupying the highest tier in any hierarchy of legal norms. They necessarily transcend, and should displace, decisions or actions which are incompatible with the fundamental values of humanity, as these are expressed in internationally-agreed treaties and conventions^[5]. The HRA gives domestic effect to one of those conventions in the UK.

30. That presumption in favour of the pre-eminence of human rights requirements is a central feature of the current constitutional settlement in Scotland, at least insofar as the rights identified in the Convention are concerned.

The Scotland Act 1998 and the HRA

31. As the Panel is aware, public authorities in Scotland, including the Scottish Government, the Scottish Parliament and Scotland's courts, are subject to the requirements of the HRA in the same way as public authorities elsewhere in the United Kingdom.

32. In addition, the activities of the devolved legislature and the executive in Scotland are subject to important human rights obligations which are set out in the Scotland Act 1998 ("the Scotland Act").

33. In particular, the Scotland Act provides that legislation which is incompatible with the Convention rights^[6] established by the HRA is outside the legislative competence of the Scottish Parliament and is "not law"^[7]. The Scottish Ministers similarly have no power to act incompatibly with the Convention rights^[8]. The Act further provides for the courts to be able to vary the retrospective effect of decisions, by removing or limiting any retrospective effect or suspending the effect in order to allow the defect to be corrected^[9]. The Act is supplemented by other statutory provision, such as the Convention Rights (Compliance) (Scotland) Act 2001^[10] which enables remedial orders to be made.

34. The result is a robust and sophisticated, yet flexible, framework of constitutional limitations on the exercise of executive and legislative powers. Not only are the legal mechanisms which serve to protect Convention rights in Scotland more extensive than is the case in England (though similar to the arrangements in Wales and Northern Ireland). They also impose a more demanding compliance standard in relation to the compatibility of primary legislation of the devolved legislature. That framework has served Scotland well for more than two decades, within the confines of the current constitutional arrangements of the United Kingdom

An Effective Framework of Protections

35. In the view of the Scottish Government both the HRA and the Scotland Act function effectively, and in combination, in a way that enables the successful transaction of government and parliamentary business, whilst delivering vitally important safeguards against the possibility that human rights and fundamental freedoms might be breached.

36. The fact that this sophisticated constitutional framework is comprised of two constitutional statutes – the Scotland Act and the HRA – rather than just one is of importance in the context of the current Review. The mechanisms in the Scotland Act are integrally connected to the HRA and the Convention and form part of a larger whole.

37. In particular, the definition of "Convention rights" in the Scotland Act is drawn directly from the HRA. The rights identified in both Acts are therefore identical. In addition, the Scotland Act is clear that proceedings cannot be brought unless (with the exception of the relevant Law Officers) a person qualifies as a "victim" for the purposes of Article 34 of the Convention. The damages which may be awarded by a court are effectively those which it could award under section 8 of the HRA^[11].

38. It is therefore essential that the Review understands the HRA, at least insofar as it applies in Scotland and in the other devolved nations, as an integral part of a larger and more complex legal and constitutional framework.

39. For all that the HRA is a "protected enactment" which cannot itself be modified by devolved legislation passed by the Scottish Parliament^[12], the view of the Scottish Government and of the overwhelming majority of members of the Scottish Parliament is that changes affecting Scotland cannot and should not be made to the HRA without the explicit consent of the Scottish Parliament^[13].

UNCRC Bill

40. The emphasis being given to compliance with human rights obligations in a devolved context is further exemplified by the current Government Bill to incorporate the UN Convention on the Rights of the Child ("UNCRC") into Scots law^[14] (insofar as it is possible to do so within the current legislative competence of the Scottish Parliament)^[15].

41. The objective of the Bill ("UNCRC Bill") is to "incorporate in Scots law rights and obligations set out in the United Nations Convention on the Rights of the Child [and] to ensure compliance with duties relating to the [UNCRC]". The approach taken by the Scottish Government seeks to ensure the highest protection possible for children's rights, within the current limits of devolved competence.

42. The UNCRC Bill intentionally reflects the approach employed by the HRA and the Scotland Act. Amongst other key features, the Bill imposes a duty on public authorities not to act incompatibly with the incorporated provisions of the UNCRC and its first and second Optional Protocols (referred to as the "UNCRC requirements"). It also enables the courts to hear cases relating to those rights and to decide whether legislation is compatible with the requirements of the UNCRC requirements. Depending on the specific circumstances, the courts may "strike down" the legislation in question, so that it ceases to have effect, or issue a declarator of incompatibility^[16].

43. The UNCRC Bill also follows the HRA model in other key respects. In particular, section 19 directly reflects the approach taken in section 3 of the HRA, by requiring legislation to be read and given effect in a way that is compatible with the UNCRC requirements, so far as it is possible to do so.

44. The fact that this key feature of the HRA is being replicated in new devolved human rights legislation provides a very clear indication that the HRA model is not only effective, but enjoys the explicit support of the Scottish Government, the Scottish Parliament^[17] and Scottish civil society. The UNCRC Bill adopts these key features and builds upon them to ensure that the framework which the Bill puts in place is the strongest model which it is currently possible to deliver within the powers available to the Scottish Parliament.

Implementing International Obligations

45. In addition, amongst the rights which will be incorporated by the UNCRC Bill are a number of rights which are directly analogous to rights set out in the Convention, including in relation to freedom of expression; freedom of thought, conscience and religion; freedom of association and peaceful assembly; and respect for privacy and family life.

46. The UNCRC Bill does not modify or amend the HRA (and it would be outside devolved legislative competence for it to do so). But (subject to the Bill being passed and enacted) the proposed new legislation will mean that it becomes possible in Scotland to vindicate these UNCRC-derived rights by means of proceedings enabled by devolved legislation, either in combination with the HRA and the Scotland Act, or independently from them. The ability to do so is an explicit objective of the UNCRC Bill. The proposals being developed (in relation to the wider international human rights framework) by the National Taskforce for Human Rights Leadership are expected to take a similar approach.

47. In adopting this approach to incorporating internationally-recognised human rights into Scots law, the conscious decision has been taken to reference the rights which are set out in the relevant international instruments. That approach mirrors the one taken in the HRA. The rights set out in the UNCRC Bill are explicitly recognised as originating in the UNCRC, just as those in the HRA derive from the Convention.

48. Should it prove necessary (whether as a result of the current Review, or in consequence of some future UK Government initiative) the Scottish Government is clear that the full extent of devolved legislative competence should be used in order to prevent the erosion or removal of existing HRA safeguards – including by means of legislation which establishes protections which take the place, in a devolved context, of those removed by any future Act of the UK Parliament.

UK Independent Review of Administrative Law

49. The work of the current Review necessarily interfaces with issues being explored by the separate Independent Review of Administrative Law (IRAL) launched in July 2020 by the UK government to consider options for reform of the process of judicial review^[18].

50. The Scottish Government has a close interest in any potential changes to judicial review affecting Scotland. The Scottish Government has responded in detail to the IRAL's call for evidence, setting out its overall position and identifying significant concerns in relation to any attempt to restrict the reach of judicial review.

51. The matters addressed in the IRAL response are therefore not reiterated in this response.

52. The Scottish Government nonetheless wishes to emphasise that it regards judicial review as a mechanism of particular importance in ensuring that human rights are respected, protected and fulfilled. The Scottish Government is satisfied that the law in relation to judicial review currently provides an efficient and proportionate means of ensuring that potential breaches of human rights can be brought before the courts.