UK Parliament Joint Committee on Human Rights - legislative scrutiny: Bill of Rights Bill - evidence submitted by the Scottish Government

Footnotes

1. Paragraphs 2a and 6 of the Explanatory Notes to the Bill of Rights Bill.

2. Paragraphs 6, 50 and 51 of the Explanatory Notes to the Bill of Rights Bill.

3. This principle was written in to the original text of the Convention via Article 53. There are nonetheless good legal and procedural reasons why the domestic courts should exercise caution and restraint in interpreting the Convention rights, and should avoid doing so in a way that runs too far ahead of Strasbourg jurisprudence. For example, while the victim of an alleged violation retains the right to apply to the ECtHR if the remedy provided by the domestic courts is felt to be inadequate, there is no mechanism by which a public authority can seek to reverse an unduly generous judgment by taking its case to Strasbourg. Such considerations have been the subject of close analysis by senior judges and they directly inform the approach which the UK courts have in practice adopted. In reality, there is no evidence to suggest that the UK courts have been inappropriately "expansive" in their interpretation of the Convention rights.

4. In practice, the effect of the provision will be mitigated by the fact that the ECtHR is likely to continue to interpret and apply the Convention rights in a broadly progressive manner, in line with the "living instrument" principle. The principal effect of clause 3 will instead be to discourage the UK courts from developing the law in areas where UK practice and insights may in fact be beneficial to the ECHR system as whole. It will also constrain the scope for UK interests to be defended by means of domestic judgments which constructively challenge the position reached by the Strasbourg court and facilitate a process of "judicial dialogue".

5. See for example paragraphs 104 to 112 which also address this issue in Scottish Government Response to the UK Independent Human Rights Act Review - gov.scot (www.gov.scot).

6. The Grand Chamber of the ECtHR has held that a failure to comply with interim measures would amount to a violation of Article 34 of the ECHR, as it would "hinder… the effective exercise" of the right of applicants under Article 34 to bring their claims before the ECtHR – see more at Council of Europe: Requests for interim measures (coe.int). This point has already been made in the Committee's letter to the Lord Chancellor on 30 June 2022.

7. Interim measures apply only in exceptional cases, where there is a real risk of serious, irreversible harm. If statutory clarification of the effect of interim measures is in fact required as a matter of domestic law, it should instead take the form of a positive duty requiring the UK courts to have appropriate regard to interim measures when hearing any case to which such measures apply.

8. See more in Urgent measures in cases lodged by two British prisoners of war sentenced to death in the so-called Donetsk People's Republic (coe.int).

9. See Responding to human rights judgments: 2020 to 2021 - GOV.UK (www.gov.uk).

10. See the response to question 6, below.

11. See in particular the response to question 18 in Human Rights Act reform consultation: Scottish Government response - gov.scot (www.gov.scot).

12. Baroness Hale of Richmond addressed this point in her February 2021 evidence to the Committee – "Usually the Government argues first for compatibility, but if we decide that it is incompatible, there is then a choice between [using] the interpretive obligation, if we can, to try to cure [the incompatibility] or simply to make a declaration of incompatibility. I cannot remember a case that I was involved in where we did not do whichever of those two the Government asked us to do. The Government's first line was always, "It's compatible" but if they lost on that they would then argue either for using the interpretive obligation or for a declaration, and we would usually do what the Government asked for in that respect". More information can be found in the transcript of Baroness Hale's appearance at the Committee.

13. See for example Kyle Murray's analysis at Kyle Murray: The future of rights-enhanced interpretations under the Bill of Rights – UK Constitutional Law Association.

14. Stefan Theil has memorably described the clause as "Henry VIII on steroids" in Stefan Theil: Henry VIII on steroids – executive overreach in the Bill of Rights Bill – UK Constitutional Law Association.

15. For a helpful discussion of positive obligations and the effects of the Bill see Edmund Robinson: Fumbling with interpretation – Clause 5 of the Bill of Rights and the positive obligations challenge – UK Constitutional Law Association.

16. Article 46 of the Convention.

17. See the definition of "positive obligation" in clause 5(7).

18. Again, see for example the conclusion reached by Edmund Robinson.

19. In practice much will depend on whether, or to what extent, the provision displaces the well-established balancing exercise already undertaken by the courts when examining the proportionality of actions that interfere with a Convention right. Requiring the courts to regard Parliament as having already decided the answer simply by virtue of having passed an Act may restrict the scope for meaningful judicial examination of the facts. Hayley Hooper argues that clause 7 "seeks to prejudice the proportionality exercise by compromising any independent evaluation conducted by a reviewing court" in Clause Seven of the Bill of Rights Bill: Diluting Rights Protection and Undermining Parliamentary Democracy | OHRH (ox.ac.uk). Mark Elliot takes the view that "clause 7 may blunt the application of the proportionality doctrine [but] does not strike it a fatal blow" in The UK's (new) Bill of Rights – Public Law for Everyone. Either way, the Bill's lack of clarity and the extent to which it challenges a central feature of established human rights law are troubling.

20. Clause 7 would appear to significantly limit the availability of declarations of incompatibility (under clause 10) in respect of Acts of Parliament, where making the declaration depends on answering questions of "balance". See question 10 below for further discussion of this aspect. Since a majority government can in practice ensure that even manifestly "unbalanced" and incompatible legislation is passed, the overall effect is to restrict the ability of the courts to act as a safeguard against the over-extension of executive power.

21. One inevitable consequence will be that the Bill restricts access to an effective remedy in the UK courts and results in more cases being brought against the UK in Strasbourg. That in turn is likely to result in an increase in the number of adverse judgments. At present the UK has an exemplary record, and habitually wins more than 98% of cases. See the UK Government's own report to the Committee: Responding to human rights judgments: 2020 to 2021 - GOV.UK (www.gov.uk).

22. In which case the authority could simply decide to cease acting in an unlawful way, without there being any need to invoke a positive obligation.

23. Clause 5 ensures that the substantive content of the relevant Convention right (as it applies in the UK) cannot, among other things, include a post-commencement positive obligation. A failure to discharge that positive obligation cannot, therefore, amount to an unlawful act for the purposes of clause 12(1). It is nonetheless still an act which is potentially incompatible with the UK's obligations under the ECHR and therefore requires the victim to have access to an effective remedy in accordance with Article 13 of the ECHR.

24. See also the Scottish Government's response to the UK Government's December 2021 consultation paper - Human Rights Act reform consultation: Scottish Government response - gov.scot (www.gov.scot).

25. See Bill of Rights to strengthen freedom of speech and curb bogus human rights claims - GOV.UK (www.gov.uk).

26. This illustrates a further troubling inconsistency in the UK Government's position. Effective public protection may itself require positive action on the part of public authorities, of the kind which clause 5 of the Bill explicitly seeks to exclude.

27. For instance the Parole Board for Scotland (Parole Board for Scotland (scottishparoleboard.scot) or the relevant multi-disciplinary prison Risk Management Team (Risk Management, Progression and Temporary Release Guidance (sps.gov.uk)).

28. The UK Government's own record calls into question whether such an assumption can reliably be made. The Special Immigration Appeals Commission found in W and others that "there remains a requirement in law for effective verification of the assurances, and it remains the case there is no sufficient means of that effective verification" – see Special Immigration Appeals Commission: W and Others - Approved Judgement. For further commentary see: Daniella Lock: Three Ways the Bill of Rights Bill Undermines UK Sovereignty – UK Constitutional Law Association.

29. See the exceptional circumstances identified in Al-Skeini v United Kingdom [2011] ECHR 1093.

30. See Smith and others (FC) (Appellants) v The Ministry of Defence (Respondent) [2013] UKSC 41, which revised the position previously reached in R (on the application of Smith) (FC) (Respondent) v Secretary of State for Defence (Appellant) and another [2010] UKSC 29. See also commentary at: Smith and others v Ministry of Defence [2013] - JUSTICE.Clause 5 of the Bill also affects the interests of service personnel. It specifically seeks to exclude "positive obligations" of the kind relevant in ensuring that alleged breaches of the Article 2 right to life are properly investigated.

31. See The Armed Forces Covenant.

32. Clause 39(3) explicitly provides that clause 14 may only be commenced if the Secretary of State is satisfied that doing so is consistent with the UK's ECHR obligations. Such a decision might in turn be subject to challenge on normal Wednesbury reasonableness grounds.

33. Arrangements in Scotland are explained in more detail in the Scottish Government's response to the UK Government's December 2021 consultation paper (Question 3) - Human Rights Act reform consultation: Scottish Government response - gov.scot (www.gov.scot).

34. Where an offence (including all common law offences) is "triable either way", the implication of clause 9(2)(b) may be that a person charged with the offence is entitled to choose whether to be tried summarily (in front of a Sheriff) or on indictment (with a jury). In fact, that choice is not available. Whether an offence will be tried by a jury will generally depend on how the prosecution of specific offences has been provided for in statute, the powers of Scottish courts under the Criminal Procedure (Scotland) Act 1995, and the decision of the prosecutor on the most appropriate court to hear the case. Where discretion does exist, it lies entirely with the prosecutor.

35. See Crown Office and Procurator Fiscal Service (copfs.gov.uk).

36. See New UK 'bill of rights' exempts government from free speech protections | The Independent.

37. Further information is available in Human Rights Act 1998 - The UK Government's consultation paper on "Human Rights Act Reform: A Modern Bill Of Rights" - Response by the Scottish Government (www.gov.scot).

38. The principle that the UK Parliament should not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament has been a fundamental feature of the settlement since its inception. It was given explicit statutory recognition by the Scotland Act 2016 -Scotland Act 2016 (legislation.gov.uk). See also: Devolution Guidance Note 10 (1998) and the Standing Orders of the Scottish Parliament. For a helpful discussion of the potential devolution implications of the Bill of Rights Bill see: Iain Jamieson: Effect of the Bill of Rights upon the meaning of Convention Rights under the Scotland Act – UK Constitutional Law Association.

39. The Scottish Parliament passed motions in 2014 and 2017 recording its support for the Human Rights Act and calling on the UK Government to avoid actions that undermine or erode human rights – see Official Report – Meeting of the Scottish Parliament - 11 November 2014 and Official Report – Meeting of the Scottish Parliament - 10 January 2017.