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

Summary

The Scottish Government is pleased to provide concise responses to the questions posed by the Committee and is happy to submit further evidence should this be of assistance. Previous statements relating to the UK Government's proposals include:

• Response to the UK Government's December 2021 consultation (March 2022)
• Scottish and Welsh Governments - letter to the Lord Chancellor (March 2022)
• Deputy First Minister's letter to the Lord Chancellor (December 2021)
• Response to the Independent Human Rights Act Review (March 2021)

The Bill of Rights Bill is ill-conceived and its overall effect is harmful and unwelcome. Some of its provisions are confusing and contradictory. A full exploration of the concerns and adverse consequences to which the Bill gives rise is not possible in this short response. However, the Scottish Government reiterates its strong support for the HRA in its existing form and would draw attention, inter alia, to:

• the restrictive and regressive effects of the Bill, including its insistence on a narrow and insular reading of the Convention rights and its reversal of the principle that the Convention provides a "floor" and not a "ceiling";
• the obstacles to access to justice created by the Bill and the extent to which it fetters judicial decision-making and micro-manages the work of the UK courts;
• the fact that the Bill substantively changes the meaning of the Convention rights as they currently apply in the UK and the attempt to give those rights a meaning which diverges from the Strasbourg court's authoritative interpretation;
• the likelihood that remedies may need, in future, to be sought in Strasbourg more frequently than at present, with an increase also in the number of adverse judgments against the UK;
• the impact on, and interference with, the constitutional settlement in Scotland, including by legislating for devolved matters and by changing both legislative and executive competence;
• the effect of repealing section 3 of the HRA, requiring legislation to be read and given effect in a way which is compatible with the Convention rights, and the practical and principled consequences of this change, including the loss of legal certainty which may result;
• the degree of "executive overreach" apparent in the Bill, including the power conferred on ministers to decide whether existing case law remains effective and provisions which seek to insulate government and public authorities from legitimate legal challenge;
• the removal of protections currently available to UK service personnel involved in overseas operations and the irresponsibility evident in clause 24;
• the Bill's overall inconsistency and illogicality, including the manner in which the status and functions of the UK courts and the legislature are diminished whilst asserting that the objective is to "strengthen domestic institutions".