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

Enforcement of Human Rights: litigation and remedies

11. Does the system of human rights protection envisaged by the Bill ensure effective enforcement of human rights in the UK, including the right to an effective remedy (Article 13 ECHR)?

Scottish Government Response

For the reasons set out elsewhere in this response it is clear that the Bill does not ensure the effective enforcement of the Convention rights in the UK. It is not, in consequence, compatible with the UK's obligations as a State Party to the ECHR.

Multiple clauses in the Bill have the effect of limiting access to an effective remedy. They do so by restricting the powers and decision-making discretion of the courts and by imposing tests and conditions which are designed to obstruct access to justice and the protection of Convention rights.

12. Do you think the proposed changes to bringing proceedings and securing remedies for human rights breaches in clauses 15-18 of the Bill will dissuade individuals from using the courts to seek an effective remedy, as guaranteed by Article 13 ECHR?

Scottish Government Response

Yes. The explicit intention of these clauses appears to be to impose tests and conditions which will make it more difficult to seek and obtain an effective remedy from the domestic courts.

13. Do you agree that the courts should be required to take into account any relevant conduct of the victim (even if unrelated to the claim) and/or the potential impact on public services when considering damages?

Scottish Government Response

The Scottish Government's view is that justice must be impartial and available to all. Making the outcome of a case dependent, even in part, on the general public standing or reputation of those who come before the courts would be wholly unacceptable^[24].

Where it is appropriate to take account of such matters, the conduct of an individual in a particular case can already be considered by the courts when determining the most appropriate remedy. The UK courts are experienced in dealing with such matters and do not require to be micro-managed in the exercise of their functions.