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

Specific rights issues

14. Clause 6 of the Bill would require the court, when deciding whether certain human rights of prisoners have been breached, to give the "greatest possible weight" to the importance of reducing the risk to the public from persons given custodial sentences. What effect would this clause have on the enforcement of rights by prisoners?

Scottish Government Response

The Convention as it stands, and the HRA as it implements the Convention rights in the UK, already inherently balances individual rights and the wider public interest. For its part, the UK Government has made no secret of its desire to "insulate" its own prison policies from legal challenge on human rights grounds^[25].

Justice matters in Scotland are wholly devolved and the Scottish Government has not requested that clause 6 of the Bill be extended to Scotland. There are no plans to make equivalent provision covering Scotland by means of devolved legislation.

The Scottish Government's view is that both public protection and human rights compliance are of paramount importance. In fact members of the public have a human right not to be exposed to harm or loss as a result of criminal activity^[26].

The Scottish Government is therefore clear that public protection considerations should already be an integral part of decision-making in contexts such as the release or transfer of prisoners. Such decisions should however be made, independently and without political interference, by the appropriate authority^[27].

15. Clauses 8 and 20 of the Bill restrict the application of Articles 8 (right to private and family life) and 6 (right to a fair trial) in deportation cases. Do you think these provisions are compatible with the ECHR?

Scottish Government Response

The restrictions imposed by clauses 8 and 20 strike directly at the principles of universality, equality and the rule of law. The provisions violate the requirement that justice, and access to the courts, must be available to all.

The tests imposed by clause 8 are extreme, to the extent that they are clearly designed to obstruct access to justice and to prevent the courts from exercising jurisdiction in respect of important executive decisions. If anything, clause 20 is even more egregious in instructing the courts (in respect of deportation assurances) to "presume that the Secretary of State's assessment … is correct"^[28] .

Such restrictions are potentially incompatible with the ECHR and are also wholly unnecessary. The existing HRA creates no automatic or necessary impediment to the deportation of foreign nationals where deportation is genuinely in the public interest.

16. Clause 14 introduces a total ban on individuals bringing a human rights claim, or relying on a Convention right, in relation to overseas military operations, subject to the Secretary of State being satisfied that this is compatible with the UK's obligations under the Convention. Does this comply with the UK's obligations under the ECHR and international law? If not, what would need to be amended to ensure clause 14 is consistent with the UK's obligations under the Convention?

Scottish Government Response

The UK's obligations in the context of overseas military operations are specific in scope and apply only where the UK exercises meaningful jurisdiction^[29]. The suggestion that they give rise to some form of unreasonable or open-ended liability is factually incorrect.

Amongst the most objectionable features of clause 14 is its removal of the current human rights protections available to UK service personnel ^[30]. This raises concerns not simply in relation to the UK's obligations under the ECHR but with regard to the commitments given by the UK Government in its own Armed Forces Covenant^[31]. The clause also seeks to prevent access to justice for other victims, irrespective of whether their claim is well-founded.

Given the clear potential incompatibility of this clause with the UK's obligations as a State Party to the ECHR, it is hard to see how it could in fact be brought into force^[32].

17. The Bill introduces a limited right to trial by jury. What would be the legal significance of the right?

Scottish Government Response

The use of trial by jury is long established for the prosecution of serious offences in Scotland, but there is no right per se to trial by jury^[33].

The practical effect of clause 9 remains unclear. While the policy intent appears to be largely symbolic, it is possible that the clause could have substantive effect. For example, clause 9(2)(b) could potentially be interpreted as creating a new right for accused persons in Scotland to choose a trial by jury^[34] . Challenges might also arise in cases where an offence is "triable either way" but the decision has been taken to prosecute summarily. Such an interpretation would amount to both a significant change to Scots criminal procedure and a profound interference with the ability of the Crown Office and Procurator Fiscal Service^[35] to exercise independent decision-making powers.

The Scottish Government respects the right of other jurisdictions within the UK to adopt their own policies in relation to jury trial, but it is neither appropriate nor necessary for the UK Parliament to seek to legislate in respect of Scotland.

18. The Bill strengthens protection for freedom of speech, with specific exemptions for criminal proceedings, breach of confidence, questions relating to immigration and citizenship, and national security. Do you think these changes are necessary? What would be the implications of giving certain forms of speech greater protection than other rights?

Scottish Government Response

Clause 4 purports to defend and promote free speech but is likely in practice to have the effect of undermining the broader right to freedom of expression secured by Article 10 of the ECHR. While clause 4 does not displace the restatement of Article 10 in Schedule 1, the Bill substantively alters (for example in clauses 3 and 5) the way in which the UK courts must interpret that right.

Whilst ideas, opinions and information may be imparted, the right to protest is excluded, as are other actions (such as whistle-blowing) which may inconvenience or challenge the executive. The inescapable conclusion is that "free speech is only valued when it is not used against the government"^[36].

19. Why do you think the Government has chosen to protect freedom of speech rather than freedom of expression, as guaranteed in Article 10, and what are the implications of treating the elements of Article 10 differently?

Scottish Government Response

The intent appears to be to re-interpret Article 10 by giving special emphasis to a more restrictive statutory formulation. Such restrictive provision is inconsistent with the principles of modern democracy.

One potential consequence of "disassembling" the Article 10 right may be that effective remedies need to be sought in Strasbourg rather than in the domestic courts.