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

Relationship between the UK courts and the ECtHR

1. Clause 3 of the Bill states how courts must interpret Convention rights, including by requiring them to have "particular regard to the text of the Convention right." What would be the implications of clause 3?

Scottish Government Response

The evident intent of the Bill is to impose a restrictive reading of the Convention rights^[1].

This includes a rejection of the principle that the ECHR is a "living instrument", the interpretation of which is capable of evolving to reflect the norms and expectations of modern society. Instead, the Bill seeks to constrain the discretion available to the courts and to limit the meaning of the Convention rights as far as possible to a literal, "black letter" reading of the text of the Convention. Furthermore, the courts are encouraged to interpret that text by reference to the original travaux préparatoires undertaken in 1949 and 1950. This appears designed to exclude "expansive" interpretations of the Convention rights and, by extension, to benchmark human rights standards against the norms of the 1950s rather than the 2020s.

Significant concerns arise as a consequence. To take the most obvious example, Article 14 of the Convention makes no reference to prohibiting discrimination on the grounds of sexual orientation. This is because homosexuality was criminalised in most jurisdictions at the time the Convention was drafted. The "living instrument" doctrine has subsequently enabled that injustice to be corrected. But the restrictions imposed by clause 3necessarily imply a desire to depart from modernised interpretations of this kind. Doing so risks undermining not only the practical utility of the Convention rights but also their relevance in modern society. The clause is self-evidently regressive in both its intent and effect.

2. Clause 3 also provides that the courts may diverge from Strasbourg jurisprudence but may not expand protection conferred by a right unless there is no reasonable doubt that the ECtHR would adopt that interpretation. What are the implications of this approach to interpretation of Convention rights?

Scottish Government Response

The Bill seeks to overturn the principle that the Convention rights provide a "floor" and not a "ceiling" ^[2]. At present the HRA ensures that the rights protected across the UK cannot sink below the threshold established by the ECHR. Indeed, they can in principle and where appropriate and consistent with domestic law exceed the minimum requirements set out in the Convention^[3].

Clause 3(3) turns that "floor not a ceiling" principle on its head. In future the UK courts will be explicitly prohibited from interpreting any of the Convention rights in a way that might expand the protection it confers. The absolute upper limit is established by the position that the ECtHR might be expected to adopt, and UK courts are in practice encouraged (via clause 3(3)(b)) to diverge from the Strasbourg jurisprudence by adopting an interpretation that confers lesser protection.

This is a perplexing proposal^[4]. The UK Government has asserted that its objective is to "strengthen domestic institutions". But this clause explicitly constrains the discretion currently available to the UK's own courts to consider the specific domestic context and establishes a new maximum extent to the Convention rights (as they apply in the UK) which depends entirely on decisions reached by the Strasbourg court. The proposal is also detrimental to the overall functioning and development of the Convention, in particular the principles of evolutive interpretation and living instrument doctrine.

The Scottish Government's view remains that the framework provided by the HRA establishes boundaries within which it is properly for the courts themselves (and in particular for the Supreme Courts of Scotland and the UK Supreme Court) to chart a coherent long-term path^[5]. In practice the courts have done so successfully and legislative change of the kind set out in clause 3 is neither necessary nor desirable.