UK Independent Human Rights Act review: our response
Our formal response to a call for evidence issued by the Independent Human Rights Act Review set up by the UK Government.
Footnotes
1. 1/ Response to the Scottish Parliament European and External Relations Committee
a. (November 2015)
2/ Response to the UK Government's additional questions about a possible UK Bill of Rights
(September 2012)
3/ Response to the UK Government's discussion paper, 'Do we need a UK Bill of Rights?' (November 2011)
2. Amendments to the Criminal Procedure (Scotland Act) 1995 were made by Part 4 of the Scotland Act 2012. These related to compatibility issues arising as a consequence of the actions of a public authority or in relation to legislation passed by the Scottish Parliament.
3. See further details below at paragraphs 40 to 47. The text of the Bill can be found at: https://beta.parliament.scot/bills-and-laws/bills/united-nations-convention-on-the-rights-of-the-child-incorporation-scotland-bill
4. Scotland's National Performance Framework - https://nationalperformance.gov.scot/
5. A principle memorably expressed by the Inter-American Court of Human Rights in Velásquez-Rodríguez (1988) – "The exercise of public authority has certain limits which derive from the fact that human rights are inherent attributes of human dignity and are, therefore, superior to the power of the State."
6. Defined in section 1 of the HRA and listed in Schedule 1. Articles 1 and 13 of the Convention are not included, but the Convention rights do encompass elements from optional Protocols 1 and 13.
7. Section 29 Scotland Act 1998 (legislation.gov.uk)
8. Section 57 Scotland Act 1998 (legislation.gov.uk)
9. Section 102 Scotland Act 1998 (legislation.gov.uk)
10. Convention Rights (Compliance) (Scotland) Act 2001 (legislation.gov.uk)
11. Section 100 Scotland Act 1998 (legislation.gov.uk)
12. Paragraph 1(2)(f) of Schedule 4 Scotland Act 1998 (legislation.gov.uk)
13. The Scottish Parliament passed motions in 2017 and 2014 expressing support for the HRA and calling on the UK Government to avoid actions that weaken international human rights.
Official Report - Parliamentary Business 10 January 2017 - motion S5M-03297
Official Report - Parliamentary Business 11 November 2014 - motion S4M-11484
14. The UNCRC Bill: bill-as-amended-at-stage-2.pdf (parliament.scot)
15. Those provisions of the UNCRC that relate to reserved matters will not be incorporated by the Bill.
16. The Scottish Government's preferred policy approach would be to require all legislation, past and future, to be compatible with the incorporated UNCRC rights and obligations, with the courts having the power to 'strike down' incompatible provisions, including primary legislation. However, a provision requiring future Acts of the Scottish Parliament to be compatible with UNCRC would alter the legislative competence of the Parliament and is, therefore, beyond its current powers. Accordingly, the Bill provides for two different remedies in respect of legislation which is found to be incompatible.
17. The Bill has completed Stage 2 consideration and Stage 3 (which is the final stage of parliamentary consideration) is scheduled for 16 March.
18. Independent Review of Administrative Law - GOV.UK (www.gov.uk)
19. Section 2 Human Rights Act 1998 (legislation.gov.uk)
20. As required by section 1 of the Judiciary and Courts (Scotland) Act 2008.
21. White Paper: Human Rights Bill – October 1997 (publishing.service.gov.uk)
22. For example see his comments in European Human Rights Law Review E.H.R.L.R. 2011, 5, 505-512in relation to the return of Tamils to Sri Lanka – a matter which engaged not just the UK courts but those of Denmark, Finland, France, Germany and the Netherlands.
24. R (on the Application of Ullah) v Special Adjudicator [2004] UKHL 26 (17 June 2004) (bailii.org)
25. Protocol 15 of the Convention (coe.int)
27. Brussels Declaration (coe.int)
28. Paul Mahoney, The relationship between the Strasbourg court and the national Courts, Law Quarterly Review, L.Q.R. 2014, 130(Oct), 568-586
29. See for example: R v DPP, Ex p Kebilene [2000] 2 AC 326 at 381; R(Samaroo) v Secretary of State for the Home Department [2001] UKHRR 1150 at para 35; and inRecovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3 at 44.
30. Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1
31. R v Horncastle & Ors [2009] UKSC 14 at 11
32. HORNCASTLE AND OTHERS v. THE UNITED KINGDOM (coe.int)
33. Vinter v United Kingdom [2012] 55 EHRR 34
34. Attorney General's Reference (No. 69 of 2013): R v McLoughlin; R v Newell [2014] EWCA Crim 188
35. Hutchinson v United Kingdom [2015] ECHR 111
36. Al-Skeini v United Kingdom [2011] ECHR 1093
37. R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26
38. Al-Skeini v United Kingdom [2011] ECHR 1093
39. The relationship between the UK Courts and Strasbourg, E.H.R.L.R. 2011, 5, 505-512
40. Significant examples of challenging cases in a devolved Scottish context include:
Napier v The Scottish Ministers [2005] CSIH 16 – as a result of which prisoners who had been subject to "slopping out" practices were entitled to compensation and the Scottish Prison Service was required to invest in updated toilet facilities.
Cadder v HM Advocate [2010] UKSC 43 – reforms were introduced by the Criminal Procedure Human Rights and Devolution (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 to give suspects questioned by the police a right of access to legal advice.
Salvesen v Riddell & Anor [2013] UKSC 22 – the UK Supreme Court ruled in 2013 that section 72 of the Agricultural Holdings (Scotland) Act 2003 was defective. See paragraphs 30 to 72 of the report by the Scottish Parliament's Rural Affairs, Climate Change and Environment Committee for further detail.
41. On which, see Thoburn v Sunderland City Council [2002] EWHC 195 and subsequent judicial discussion of constitutional legislation by the Supreme Court in H v Lord Advocate [2012] UKSC 24 and R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22
42. In 2019, of a total of 352 cases decided by the ECtHR (including cases against the UK declared inadmissible or struck out) there were findings of violation in 5 cases (or 1.4% of the total). In 2018, the equivalent figures were 360 and 2 (or 0.6%). By population, the UK has the fewest applications of any member of the Council of Europe (at 5 applications per million inhabitants). For full details see the annual Ministry of Justice report: Responding to Human Rights judgments - Report to the Joint Committee on Human Rights on the Government's response to human rights judgments 2019–2020 (publishing.service.gov.uk)
43. See the Ministry of Justice's annual reports – link to the 2019/20 report in previous footnote.
44. This wording was removed from the UK Ministerial Code in 2015, resulting in a legal challenge. The Court of Appeal ruled that the change to the wording of the Code did not change the substance of the duty on Ministers to comply with international law. Gulf Centre for Human Rights, R (On the Application of) v The Prime Minister & Anor [2018] EWCA Civ 1855 (01 August 2018) (bailii.org)
The reference to international law and treaty obligations has been explicitly retained in the parallel, but separate, Scottish Ministerial Code
45. Section 4(4)(b)
46. Al-Skeini v United Kingdom [2011] ECHR 1093
47. R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26
48. R (Smith) v Secretary of State for Defence and another [2010] UKSC 29
49. Convention Rights (Compliance) (Scotland) Act 2001 (legislation.gov.uk). See also the Policy Memorandum for the Bill
Contact
Email: humanrights@gov.scot
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