UK Independent Human Rights Act review: our response

Theme Two

The impact of the HRA on the relationship between the judiciary, the executive and the legislature.

The Review Panel has invited views on how the roles of the courts, Government and Parliament are balanced in the operation of the HRA, including whether courts have been drawn unduly into matters of policy.

The Review Panel has particularly asked for views on any strengths and weakness of the current approach and any recommendations for change.

Scottish Government Response

114. For the reasons previously set out, the Scottish Government believes that the HRA (in combination with the Scotland Act in relation to Scotland) successfully balances the roles of the judiciary, the legislature and executive. 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 judicial interference in matters of policy.

115. That is not, of course, to make light of the practical consequences of an adverse ruling. Such an outcome may be challenging to resolve, particularly where legislation has been in force for some time. In other instances, the incompatibility in question may require significant changes to long-established procedures and practices. It may also result in controversy, and criticism of decisions made by government, in a way that may be politically damaging^[40]. Clearly, none of these outcomes is desirable. But they are not consequences which can be attributed to the actions of the courts. The role of the courts is to make findings of fact in relation to the law. Responsibility for defects of policy-making or legislation which may be exposed by that process rests with the original decision-maker, not with the judiciary.

116. The idea that the courts have been unduly drawn into matters of policy, or that there has been an "over-judicialisation" of public administration in the UK is ultimately itself a political construct, and one that serves an agenda which is at odds with human rights principles and the existence of necessary constitutional constraints on the exercise of state power.

Further Specific Questions asked by the Review Panel

Question
a) Should any change be made to the framework established by sections 3 and 4 of the HRA?

Scottish Government Response

117. No. The Scottish Government would not support any changes to sections 3 or 4 of the HRA that might have the effect of weakening or removing the vitally-important human rights safeguards provided by the HRA. If changes were to be made, these should be directed at strengthening and extending human rights protections.

118. As previously noted, the Scottish Government strongly supports the current implementation of the Convention as it applies in Scotland via the combined effect of the HRA and the Scotland Act. The controls which this approach imposes on the exercise of executive and legislative authority, and in relation to the making of legislation and its subsequent interpretation and application, are directly comparable to the sophisticated constitutional constraints which exist in comparator jurisdictions in Europe and elsewhere.

119. There is consequently a good theoretical argument for the extension of the controls imposed in Scotland by the Scotland Act (and in the other devolved jurisdictions by equivalent statutes) to the Westminster system. In particular, the theoretical ability of the UK Parliament to knowingly and intentionally legislate in a manner that is in breach of the international human rights established by the Convention, is difficult to reconcile with international legal and constitutional norms.

120. It is similarly problematic that the rectification of human rights incompatibilities at a UK level, which have been explicitly identified by the UK courts, is ultimately at the discretion of the executive and the legislature. No individual rights-holder, irrespective of the fact that a court has found in their favour, can be fully confident that their rights will in practice be upheld. Whilst it is of course true that such defects have almost invariably been rectified, though not necessarily with any great speed, the situation remains one which inevitably gives rise to important questions in relation to access to justice and the availability of the effective remedy required by Article 13 of the Convention.

121. The Scottish Government is very clear that the courts play a constitutionally essential role in protecting human rights from potential breaches and incursions by the other branches of government. The independent exercise of that essential function must be rigorously protected.

122. It is therefore entirely proper that sections 3 and 4 of the HRA should explicitly empower the UK courts to proceed on the basis that legislation should be read, wherever possible, in a way that is consistent with the (essentially constitutional) rights derived from the Convention.

123. It is also entirely proper that, where provisions cannot be "read down" in this way, the courts should (as a minimum) be able to issue a declaration of incompatibility. In relation to Scotland, the Scottish Government is entirely happy that the courts can in fact go further, by virtue of the Scotland Act, and declare incompatible legislation to be outside legislative competence and therefore "not law". That approach is consistent with mainstream international constitutional practice.

124. Further, it must be recognised that the practical effects of both the HRA and the Scotland Act were well understood when they were passed by the UK Parliament in 1998.

125. Those effects are the result of carefully considered drafting and reflect the will of the UK Parliament. In passing the HRA, parliamentarians were fully aware that a special status was being accorded to the Convention rights, and that "bringing human rights home" would necessarily require other legislation to adapt organically, so as to be consistent with the new domestically-enforceable human rights regime.

126. In that sense, the Convention rights and the HRA were emphatically not to be seen as "just another statute". The clear intention was that the HRA should have the character of a constitutional statute, insofar as that concept can be said to exist in UK law.^[41]

127. The overall conclusion to be drawn is that the framework established by sections 3 and 4 of the HRA is:

• Entirely intentional in its practical effect. The underlying rationale – including the central role to be played by the courts in safeguarding human rights in the UK - has not changed.
• Consistent with the parallel mechanisms established by the Scotland Act and the other devolution settlements in the UK.
• Wholly unremarkable when compared against constitutional norms in other modern, progressive jurisdictions.
• Nonetheless, consistent with the UK Parliament's understanding of the special privilege enjoyed by its own primary legislation (and subordinate legislation which could not have been made in another, compatible way) – exceptional as that status may be.

Question
i. Are there instances where, as a consequence of domestic courts and tribunals seeking to read and give effect to legislation compatibly with the Convention rights (as required by section 3), legislation has been interpreted in a manner inconsistent with the intention of the UK Parliament in enacting it? If yes, should section 3 be amended (or repealed)?

Scottish Government Response

128. The question posed is founded in what appears to be a logical inconsistency.

129. By definition the "will of Parliament" in relation to any legislation passed in the two decades since the HRA was enacted in 1998 includes the intention that the legislation in question should be interpreted and applied (so far as it is possible to do so) in a way that is compatible with the Convention rights established in domestic law by the HRA.

130. In respect of legislation which pre-dates the HRA, the potential existence of incompatibilities was also understood by the UK Parliament and was properly taken into account when passing the HRA.

131. It is therefore difficult to see how the courts, in following the requirements set out by Parliament in the HRA, could be said to be interpreting legislation in a manner inconsistent with the intention of the UK Parliament. To make that suggestion is, at best, disingenuous.

132. In reaching judgment in human rights cases, the courts have in fact merely been fulfilling their constitutional duty to apply legislative provisions which have been passed by the UK Parliament and duly enacted. That process includes the judicial task of reconciling one statute (the HRA) with the requirements of other applicable legislation.

133. Again, the Scottish Government would emphasise that judgments cannot be regarded as "political", or an interference in policy matters, just because they happen to annoy or inconvenience the government of the day. Such an assertion is itself a political act and one that history suggests is unlikely to be motivated by a strong attachment to the principles of democracy, human rights and the rule of law.

134. Further, the Scottish Government would encourage the Review Panel to bear in mind the principle that "hard cases make bad law". The reality is that the HRA has delivered vitally important protections and safeguards which have directly benefited individual rights-holders across the whole of society.

135. Even if one were to accept the UK Government complaint that it sometimes loses human rights cases in the UK courts or in the ECtHR (though it normally wins 98% or more of cases which come before the ECtHR)^[42], these reversals do not constitute a basis for re-engineering the fundamental features of the HRA.

136. For its part, the Scottish Government regards section 3 as a necessary and important feature of the HRA. Moreover, the Scottish Government has explicitly chosen to replicate section 3 of the HRA in section 19 of the UNCRC Bill currently in the Scottish Parliament. The Explanatory Notes to that Bill make clear that "This interpretative obligation is analogous to the obligation created by section 3 of the Human Rights Act 1998, the effect of which has been the subject of judicial consideration in a number of cases (see for example Ghaidan v Godin-Mendoza [2004] UKHL 30)".

137. Accordingly, the Scottish Government does not see any credible case for amending section 3 of the HRA and would strongly oppose any attempt at repeal.

Question
ii. If section 3 should be amended or repealed, should that change be applied to interpretation of legislation enacted before the amendment/repeal takes effect? If yes, what should be done about previous section 3 interpretations adopted by the courts?

Scottish Government Response

138. The Scottish Government believes that the UK Parliament's intent in relation to section 3 of the HRA was clear and unequivocal in 1998 and that the approach it adopted was correct.

139. More than two decades later, the rationale for section 3 in its current form remains overwhelmingly persuasive. In that connection, the Review Panel will again wish to note (as above) that the Scottish Government has explicitly adopted the same approach in section 19 of the UNCRC Bill currently under consideration in the Scottish Parliament.

140. As previously indicated, the Scottish Government does not believe that section 3 should be amended, and the repeal of section 3 should be definitively ruled out by the Review Panel. Over and above the Scottish Government's general objection to proposals that might weaken, undermine or remove section 3, the Scottish Government would be particularly alarmed were there to be any attempt to retrospectively unpick or reverse the effect of past judgments "by the back door", by means of changes to section 3.

141. Existing HRA judgments form part of a complex and sophisticated body of law and should only be developed by means of explicit remedial legislation or the evolving interpretation and application of the law by the courts. New legislation should, of course, itself be fully compatible with the Convention rights.

142. The Scottish Government would also be concerned at the possibility that changes to section 3 might deprive the courts of clarity in relation to the application of Convention rights. That would, at best, give rise to inconsistency and would also increase the risk that UK court decisions might themselves prove to be incompatible with the Convention. The consequence would be an increase in individual applications to the ECtHR, and a potentially embarrassing reversal of the UK's historically very strong performance as a State Party to the Convention

143. As with any other actions which serve to undermine or weaken the Convention, the wider international effect would be to embolden and empower regimes around the world whose instincts and actions are directly opposed to the principles of democracy, human rights and the rule of law.

144. In a domestic context, the further risk would be that any change to section 3 might simply result in an increase in declarations of incompatibility under section 4 of the HRA. This too would have the potential to delay access to justice for those who have been the subject of a violation and might in turn increase the number of applications to the ECtHR, in cases where an effective remedy is not readily available in the UK courts.

145. At very best, such a situation would be harmful to the interests of rights-holders, inefficient for both the legislature and the executive and contrary to the original intent of the HRA, which was to ensure that remedies are available in the domestic courts.

Question
iii. Should declarations of incompatibility (under section 4) be considered as part of the initial process of interpretation rather than as a matter of last resort, so as to enhance the role of Parliament in determining how any incompatibility should be addressed?

Scottish Government Response

146. It is unclear what the Review Panel may have in mind.

147. The Scottish Government considers the current arrangements in section 4 of the HRA to be successful. They have a proven track record as effective legislative provisions which have delivered clarity, consistency and legal certainty.

148. The Scottish Government does not regard it as desirable, or practicable, to place the courts in a situation where legislation has to be read in an "all or nothing" manner (if this is what is implied by the question).

149. The HRA as it currently stands draws an important distinction between legislation that can be read as compatible with the Convention rights, and that which cannot. Only legislation which conflicts with human rights in some irreconcilable manner will be incapable of being interpreted in an appropriate manner by the courts. That is a comparatively rare occurrence.^[43]

150. The fact that a statutory provision has been interpreted in this way does not prevent the government of the day from seeking to amend the provision by means of new legislation, if it disagrees with the interpretation arrived at by the courts. But it would be wholly unnecessary, unrealistic and counter-productive to require the courts to issue a "precautionary" declaration of incompatibility every time they are confronted by a legislative provision which may potentially be in conflict with the Convention.

151. The Scottish Government considers that the Review Panel should endorse the current arrangements set out in sections 3 and 4 of the HRA, and provide the UK Government with a clear recommendation against any change.

Question
b) What remedies should be available to domestic courts when considering challenges to designated derogation orders made under section 14(1)?

Scottish Government Response

152. The power to derogate from the requirements of the Convention (under Article 15) is limited to situations occurring "in time of war or other public emergency [which] threaten the life of the nation" and are permissible only "to the extent strictly required by the exigencies of the situation".

153. Derogations in respect of Articles 3, 4(1) and 7 are not permitted, and derogation from Article 2 may only be made in respect of deaths resulting from lawful acts of war.

154. The power to derogate is one which properly belongs with the executive, acting on behalf of the state as the party to the Convention. Derogation is a ministerial decision, to be exercised by the government of the day.

155. Such decisions cannot however be taken in a legal, constitutional or democratic vacuum. Ministers must not only act at all times in accordance with the law, including international law and treaty obligations^[44], but be fully accountable for their actions.

156. Any decision to derogate from the Convention under Article 15 must therefore be open to challenge in both Parliament and in the courts. As far as legal challenge is concerned, both the domestic courts and the ECtHR provide a forum and the remedies available should be those which are appropriate in these distinct contexts.

157. In the domestic courts, the remedies should be those which are normally available in the context of judicial review. That affords significant discretion to the court, which can grant a remedy appropriate to the particular case and in Scotland includes, inter alia, the possibility of an order for reduction, declarator, suspension, interdict, implement, restitution, or any interim order.

158. In the case of a successful challenge to a derogation order, the remedies most likely to be sought would be the reduction or suspension of the order, with a resulting requirement that the government either abandons its intention to derogate or that it remakes the order in a manner that is compliant with the Convention and the decision of the court.

159. The Scottish Government believes that any government decision of this nature, which has significant potential consequences for the protection and enjoyment of Convention rights, should be open to challenge in the courts.

Question
c) Under the current framework, how have courts and tribunals dealt with provisions of subordinate legislation that are incompatible with the HRA Convention rights? Is any change required?

Scottish Government Response

160. Subordinate legislation made under UK primary legislation will be treated differently depending on whether or not "the primary legislation concerned prevents removal of the incompatibility".^[45] This arrangement is in turn a consequence of the special status afforded to UK primary legislation, in line with the UK constitutional doctrine of "parliamentary sovereignty".

161. As has been noted elsewhere, the idea that the UK Parliament is "sovereign" or "supreme" in the sense that it can legislate in any way it wishes, including in a manner that intentionally violates human rights, is a constitutional anomaly when viewed from an international perspective and from within the Scottish constitutional tradition.

162. It is not a constitutional principle which applies to the Scottish Parliament, whose primary legislation is susceptible to invalidation on competence grounds. The Scottish Ministers have no power to act incompatibly with the Convention rights – a prohibition which includes the making of incompatible subordinate legislation.

163. However, within the specific context of the HRA, as legislation passed by the UK Parliament, the current differentiation between subordinate legislation which could be made in another way, and that which is prevented by primary legislation from being compatible, is logically consistent.

164. The Scottish Government does not believe that section 4 of the HRA should be changed. It would, however, be particularly offensive to constitutional norms and the rule of law were any change to be contemplated which would accord subordinate legislation in general the special status currently reserved to UK primary legislation (and "constrained" statutory instruments). To do so would be to put not just the UK Parliament but the UK Government above the law. That outcome is one which the Review Panel's recommendations should explicitly reject.

Question
d) In what circumstances does the HRA apply to acts of public authorities taking place outside the territory of the UK? What are the implications of the current position? Is there a case for change?

Scottish Government Response

165. Both the ECtHR and the domestic courts have given careful consideration to the question of "extraterritorial" application of the Convention and the HRA.

166. The requirement established by Article 1 of the Convention is that "the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention." Article 1 was not incorporated by the HRA.

167. In most circumstances, the acts of UK public authorities will take place within UK territory and those acts will unequivocally and as a matter of international law fall within the jurisdiction of the UK as a party to the Convention.

168. However, it is unduly simplistic to focus solely on the question of whether the act of a public authority takes place within UK territory. The more important test is ultimately whether a person affected by the act of a UK public authority is meaningfully "within the jurisdiction" of the UK.

169. In Al-Skeini^[46] the Grand Chamber ofthe ECtHR recognised that obligations under the Convention could arise in situations outside the territory of a state, where that state exercises control and authority over individuals or, as a consequence of lawful or unlawful military action, has effective control over a particular area. In such exceptional situations, the normal assumption that a state has obligations under Article 1 of the Convention only within the extent of its own territory could not reasonably apply.

170. It is important to acknowledge that, in reaching its judgment, the ECtHR gave detailed consideration to the views of the UK courts, including the Divisional Court, the Court of Appeal and the House of Lords – each of which had themselves given careful consideration to the case law of the ECtHR.

171. For its part, the House of Lords^[47] had concluded (by a majority) that the general purpose of the HRA is to provide a remedial structure in domestic law for the rights guaranteed by the Convention. It therefore followed that the HRA should be interpreted as applying wherever the UK has jurisdiction. However, the House of Lords differed from the ECtHR in deciding that the UK had not, in this instance, been exercising "effective control" to the extent necessary to constitute the exercise of jurisdiction.

172. In light of the very detailed consideration given to the extraterritorial application of the HRA and the Convention rights by both the domestic courts and the ECtHR, and the clear reasoning that has emerged, the Scottish Government does not believe that there is any case for change.

173. That view is further supported by the judgment of the UK Supreme Court in Smith^[48] which concluded that the HRA also provides at least partial protection to UK service personnel when deployed overseas. The Scottish Government considers it essential that all rights-holders are able to assert and uphold their Convention rights, where necessary by means of legal action. Changes to the HRA which might have the effect of denying service personnel and their relatives access to a human rights remedy would be strongly opposed by the Scottish Government.

174. The Scottish Government believes that the HRA should continue to apply wherever the UK exercises meaningful jurisdiction, in line with the case law of the ECtHR. That is the correct approach for any state which is committed to the Convention and which wishes to demonstrate international leadership and signal its own adherence to an international order founded in the principles of democracy, human rights and the rule of law.

175. The Scottish Government would particularly warn against any temptation to respond to the position established by the ECtHR in Al-Skeini by means of some form of unilateral UK "opt-out". Amending the HRA to exclude extraterritorial application would have no effect on the case law of the ECtHR and would not change the substance of the UK's obligations under international law. It would, however, complicate the work of UK courts and signal to the wider international community that the UK is unwilling to act in accordance with universal human rights standards.

Question
e) Should the remedial order process, as set out in section 10 of and Schedule 2 to the HRA, be modified, for example by enhancing the role of Parliament?

Scottish Government Response

176. The Scottish Government believes that the current remedial order process strikes an appropriate balance between the functions of the executive and the legislature. The powers under section 10 of the HRA are available to the Scottish Ministers but only to a limited extent.

177. The Review Panel will be aware that broadly analogous provision is contained in Part 6 of the Convention Rights (Compliance) (Scotland) Act 2001 ("2001 Act")^[49]. These powers can be exercised, within devolved competence, by the Scottish Ministers in relation to primary and subordinate legislation and in respect of the exercise of functions by a member of the Scottish Government. The Scottish Government has also proposed similar provisions in sections 32 to 34 of the UNCRC Bill.

178. It is recognised that the powers in both the HRA and the 2001 Act place significant responsibility in the hands of the executive, and include the power to amend primary legislation. That is why both attract strong types of parliamentary procedure. Such power should not be granted lightly and it remains important that the legislature exerts effective scrutiny over the use made of such powers.

179. In a devolved context there is a particularly persuasive case for order-making powers of the kind provided by the 2001 Act. Unless a court makes other provision (for example under section 102 of the Scotland Act, which permits, inter alia, the suspension of the effect of a decision that a provision of legislation is outside legislative competence) the consequence of a ruling of incompatibility is that the incompatible legislation ceases to have effect.

180. A defect of that kind could be addressed by means of emergency legislation in the Scottish Parliament, and such legislation may be appropriate in the most significant cases. However, the availability of a devolved order-making power provides a pragmatic and proportionate alternative means of remedying an incompatibility.

181. Given the significantly different effect of a ruling of incompatibility in relation to UK primary legislation (and some subordinate legislation) it is legitimate to ask whether the rationale for an order-making power is quite so clear in the Westminster context. The reality, however, is that parliamentary time is always at a premium and an appropriate balance does therefore have to be struck between the need to rectify human rights incompatibilities quickly and the desire to do so by means of primary legislation which is subject to the full scrutiny of Parliament. The mechanism chosen should of course be proportionate to the particular issue in hand.

182. The Scottish Government can confirm that it has no plans to alter Part 6 of the 2001 Act. For the same reasons, it does not believe that there is a case for altering section 10 and schedule 2 of the HRA.

The Scottish Government
March 2021