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

Interpreting and applying the law compatibly with human rights

6. The Bill removes the requirement in section 3 HRA for UK legislation to be interpreted compatibly with Convention rights "so far as possible". What impact would this have on the protection of human rights in the UK?

Scottish Government Response

Repeal of section 3 of the HRA is one of the most unwelcome and damaging features of the Bill. It raises major questions of both principle and practice and will significantly diminish the domestic effectiveness of the human rights safeguards provided for by the ECHR.

In a modern, democratic society - in which human rights are recognised as being of special and overriding importance - it is entirely appropriate for the courts to interpret the legislative intention of Parliament as including a desire to give substantive effect to the Convention rights.

Section 3 also has strong practical benefits, including for the executive. As the Committee is aware^[12], the use of section 3 has frequently been at the request of government, which has recognised the pragmatism of achieving a compatible outcome by means of a court judgment tailored to the specific facts of a particular case rather than by having to bring forward new legislation in response to a declaration of incompatibility.

It is therefore unhelpful, and unfortunate, that the UK Government appears to be inflexibly opposed to a mechanism which facilitates the pragmatic evolution of human rights law by means of domestic jurisprudence. In practice, an insistence that incompatibilities can only properly be addressed by means of new legislation will result in the creation of an unnecessary burden on Parliament, a proliferation of changes made by secondary legislation, or in no remedial action being taken. None of those outcomes are desirable.

Further significant concerns also follow from the repeal of section 3, including in particular the potential for retrospective effects^[13] and in connection with the power given to ministers by clause 40.

7. Clause 40 enables the Secretary of State to make regulations to "preserve or restore" a judgment that was made in reliance on section 3. Do you agree with this approach? What implications does it have for legal certainty and the overall human rights compatibility of the statute book?

Scottish Government Response

This is a particularly troubling proposal. It confers powers on UK ministers to override settled interpretations of the law arrived at by the UK courts and to substitute, by means of secondary legislation, interpretations preferred by the government of the day.

Clause 40 therefore has very serious constitutional implications. Ministers will be entitled to change primary legislation in any situation where it "appears" to the Secretary of State that a court judgment has been made in reliance on section 3 HRA. The provision has already been the subject of close and critical scrutiny by legal academics^[14]. The Scottish Government agrees with the concerns which have been expressed and believes clause 40 constitutes an unacceptable example of "executive overreach".

The fundamental inconsistency in the UK Government's position is also notable. The current provision in section 3 of the HRA is apparently to be abolished because there is a need "to rebalance the relationship between the courts and Parliament". Ensuring that legislation is read compatibly with the Convention rights "should be for Parliament to address". But having removed the interpretive power in section 3 of the HRA from the courts, the power to amend or modify any primary or subordinate legislation is given not to Parliament but to ministers.

It should be stressed that this power effectively amounts to an ability on the part of the government to pick and choose which features of existing human rights case law, as decided by the courts, are to be retained and which are to be discarded. That is constitutionally unacceptable and contrary to the fundamental notion that rights are a means of holding state power to account. The fact that regulations which modify or amend primary legislation are to be subject to affirmative procedure provides little reassurance.

8. Clause 5 of the Bill would prevent UK courts from applying any new positive obligations adopted by the ECtHR following enactment. It also requires the courts, in deciding whether to apply an existing positive obligation, to give "great weight to the need to avoid" various things such as requiring the police to protect the rights of criminals and undermining the ability of public authorities to make decisions regarding the allocation of their resources. Is this compatible with the UK's obligations under the Convention? What are the implications for the protection of rights in the UK?

Scottish Government Response

Clause 5 has the effect of fundamentally altering the substance of the Convention rights as they will apply in future in the UK. It is one of the most unwelcome and problematic provisions in the Bill.

Clause 5 appears to be predicated on the view that human rights should only be binding or effective insofar as compliance is administratively convenient for a public authority.

The apparent intent is to prioritise the operational preferences of public authorities over the human rights and fundamental freedoms of the public they serve. Unless existing case law requires otherwise, public authorities will in future have no obligation to comply with positive obligations even where these have been authoritatively established by the ECtHR. Institutional failures resulting in violations will not merely be legitimised but will be specifically protected against effective legal challenge.

In practice, clause 5 (had it been in force at the time) would have prevented challenges being brought by the relatives of those killed in the Hillsborough disaster or by the victims of criminals such as John Worboys^[15].

Clause 5 could be deemed to be incompatible with the UK's international obligations. In common with other provisions in the Bill it will explicitly prevent the UK courts giving effect to the Convention rights in a manner that is consistent with the authoritative meaning given to those rights by the ECtHR^[16]. That position is untenable if the UK wishes to remain a State Party to the ECHR.

Further significant problems of both principle and practice are evident in the clause. For example, it is unclear how clause 5 (which limits the extent to which a public authority is required "to do any act")^[17] is intended to interact with clause 12 (which provides that "a failure to act" can be unlawful).

As has been noted in academic commentary^[18], the clause ignores the fact that the existing regime already goes to some length to avoid imposing unreasonable burdens on public authorities. It is also likely to give rise to legal uncertainty and will require significant judicial effort to develop a workable scheme.

9. Clause 7 of the Bill requires the courts to accept that Parliament, in legislating, considered that the appropriate balance had been struck between different policy aims and rights and to give the "greatest possible weight" to the principle that it is Parliament's role to strike such balances. In your view, does this achieve an appropriate balance between the roles of Parliament and the courts?

Scottish Government Response

Clause 7 is regressive and unnecessary. An appropriate balance between parliamentary sovereignty and judicial oversight of Convention compatibility is already struck by the HRA.

As drafted, clause 7(2)(a) risks further entrenching the ability of any majority UK government to override the Convention rights. A circular, self-justifying argument is established whereby Westminster legislation, by definition, must always be considered to strike the correct balance and cannot in consequence be incompatible. In effect, Parliament will always be right, even when it is wrong^[19]. Furthermore, the clause seeks to restrict the ability of the judiciary to perform their proper constitutional function as a safeguard against errors and abuses. Clause 7(2)(b) amounts to a particularly egregious attempt to "warn off" the judiciary. The courts are not to question decisions made by Parliament even if those decisions are contradictory or defective.

The overall effect is not only to remove safeguards currently provided by the HRA but apparently to negate other features of the Bill itself, such as the ability to obtain a declaration of incompatibility^[20]. The evident intent is to treat Westminster primary legislation as if it were infallible, and to render such legislation immune to interpretive challenge. That outcome is potentially incompatible not just with the UK's obligations as a State Party to the ECHR but with the principles of a constitutional democracy founded on the rule of law.

In reality, the UK courts are very clear in distinguishing their constitutional function from that of the legislature. They explicitly do not seek to substitute their views for those of Parliament. Their professional expertise does however consist, in particular, of the ability to reach decisions which balance complex and potentially competing requirements in a way that achieves the outcome intended by legislators whilst also ensuring that justice is done and the rule of law is upheld. The UK courts do not require instruction of the kind contained in clause 5.

10. Clause 12 would replace the current duty, in section 6 HRA, on public authorities to act compatibly with human rights unless they are required to do otherwise as a result of legislation. In the absence of the obligation to read legislation compatibly with Convention rights, what impact would clause 12 have on (a) individuals accessing public services and (b) public authorities?

Scottish Government Response

While clause 12 ostensibly carries forward key features of section 6 of the HRA, it is likely in practice to significantly weaken human rights protections in the UK. In particular it should be read in combination with clauses 5, 7 and 10.

For example, subject to exceptions arising as a result of existing case law, clause 5 ensures that the UK courts cannot, post-commencement, adopt interpretations of the Convention rights that would require a public authority to comply with a positive obligation. Public authorities cannot in consequence be compelled "to do any act". That will be true even where such a failure would put the UK in breach of its obligations under the ECHR^[21].

As a result, the protection conferred by section 12 would appear to be relevant only in situations where a) a public authority is itself directly responsible for a violation^[22], or b) a relevant previous judgment imposes a positive duty to take action. In all other cases, and notwithstanding the apparent clarity of clauses 12(1), 12(3), 13 and 17, the public authority will in practice be able to act inconsistently with the UK's international obligations.

Clause 5 brings about a further restriction in the scope of clause 12(1) as compared to section 6(1) of the HRA^[23]. Although clause 12(3) maintains the position that a "failure to act" can be unlawful, clause 5 explicitly restricts the scope of clause 12(1) and the jurisdiction of the courts to provide an effective remedy for victims. Whilst the wording of section 6(1) and clause 12(1) may be identical, their effect is not.

Where a public authority is acting in accordance with legislation, the Bill does continue to provide for a declaration of incompatibility (clause 10). But the availability of this remedy also appears to be restricted by clause 5, at least insofar as a declaration would involve interpreting the legislation as giving rise to a "positive obligation". In any event, a declaration of incompatibility has no binding effect and clause 7 risks limiting the extent to which any challenge could in fact succeed.

Furthermore, even where existing case law establishes a "pre-commencement interpretation", the public authority will be able (clause 5(2)) to plead operational inconvenience as a reason why the established interpretation should be set aside.

In effect the clause permits the unlawfulness of the public authority's actions to be excused on the simple basis that complying with the law could have implications for operational decision-making or resource allocation.

Since the courts will be required to give "great weight" to such arguments, the clear expectation is that they should normally be willing to excuse actions that would otherwise be incompatible and which could conflict with the UK's international obligations. Moreover, such a decision by a higher court may itself establish a precedent which calls into question the validity of any previously applicable pre-commencement interpretation.

It is extremely difficult to reconcile any of this with respect for the rule of law or with the UK's international obligations.