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Reid Foundation supports Human Rights Consortium Scotland response to human rights reform

The Jimmy Reid Foundation was pleased to be among the forty plus organisations in Scotland signing the response drawn up by the Human Rights Consortium Scotland to the UK Government’s proposals to reform and replace the Human Rights Act.

We carry the full text of the response below:

Human Rights Act Reform: A Modern Bill of Rights – A consultation to reform the Human Rights Act 1998

The Human Rights Consortium Scotland is a civil society network who work together to protect human rights in Scotland.  Our members span a very wide range of types of organisations from smaller local charities to national or issue-based organisations, and across a range of issue areas such as mental health, environment, disability, health and advocacy. 

Scottish civil society organisations who directly support this submission are:

  1. Community Policy Forum
  2. Scottish Partnership for Palliative Care
  3. Equality Network
  4. Scottish Trans Alliance
  5. The Paristamen Charity
  6. CEMVO Scotland
  7. Empower Women for Change
  8. Faces and Voices of Recovery UK
  9. Jimmy Reid Foundation
  10. Scottish Independent Advocacy Alliance
  11. Health and Social Care Alliance Scotland (the ALLIANCE)
  12. Angus Independent Advocacy
  13. Humanist Society Scotland
  14. Together (Scottish Alliance for Children’s Rights)
  15. REACH Advocacy
  16. Inclusion Scotland
  17. Forth Valley Advocacy
  18. Scottish Women’s Aid
  19. Alcohol Focus Scotland
  20. Advocacy North East
  21. Close the Gap
  22. Article 12
  23. Scottish CND
  24. Play Scotland
  25. Environmental Rights Centre for Scotland
  26. Children’s Parliament
  27. Independent Advocacy Perth and Kinross
  28. Fife Centre for Equalities
  29. Outside the Box
  30. Speak Out Advocacy Project
  31. Mamie Martin Fund
  32. Maryhill Integration Network
  33. Scottish Commission for People with Learning Disabilities
  34. Poverty Alliance
  35. Clackmannanshire Women’s Aid
  36. Women for Independence – Independence for Women
  37. Who Cares? Scotland
  38. Scottish Recovery Consortium
  39. Amnesty International
  40. JustRight Scotland
  41. Making Rights Real
  42. Engender
  43. Age Scotland
  44. Corra Foundation
  45. Campaign for Freedom of Information Scotland
  46. Migrant Voice

The HRA is working and does not need replaced

The most important question that should shape any reform of the Human Rights Act 1998 (HRA) is this: in what ways is the HRA protecting individuals’ human rights? It is disappointing that this question is not front and centre of this consultation paper.

Our experience of working with individuals and communities across Scotland is that the Human Rights Act 1998 (HRA) is an essential protection for our human rights.  It enables individuals to have a voice and to hold the government to account on their European Convention on Human Rights (ECHR) rights.  It has often been the only way that marginalised people have been able to access justice and have been able to make sure that the impacts of law and policy on their rights cannot be ignored.

Consortium member organisations work with some of the most marginalised people in Scotland, made very vulnerable by circumstances that are often outwith their control. Often their sense of agency and dignity are in tatters. They are often in minority groups whose particular interests would not show up in manifestos or be major issues at the ballot box – indeed, sometimes their interests are those which become political footballs. The HRA is vital as a tool for them as individuals to ensure that the implications for their human rights of any law or policy are taken into account. 

We wholeheartedly reject the idea that human rights law has gone too far or that there are too many human rights cases, and emphasise that the ECHR, incorporated through the HRA, is the minimum floor for rights protections in law.  Human rights are ultimately about a balance of power between Government and people, and the HRA is, and has been, a crucial means of balancing that power.

Furthermore, the HRA has had a positive impact on the effective and efficient delivery of public services in Scotland through providing a helpful legal framework to aid public authority decision making and priorities. For example, our research shows that, pre-COVID, over half of public authorities actively considered their HRA duties when making decisions[1]. The HRA has been a crucial element of the increasing human rights culture within Scottish public bodies. 

Indeed, many of our organisations submitted evidence to the Independent Review of the Human Rights Act detailing the ways in which the HRA is working well[2]. After nine months of detailed consideration, that Panel’s view was that there was no need for wholescale reform of the HRA.  They found that the status quo was, by and large, working well and that small changes only were merited. We are concerned that the Panel’s recommendations, and the wealth of evidence submitted to that Panel, have been disregarded by the UK Government in the rationale for this consultation document.

All of the responses below should be viewed in light of this fundamental objection to the rationale behind the proposals.

Overwhelming support for human rights in Scotland

We note that the consultation states ‘A Bill of Rights therefore presents an opportunity for people in all parts of the UK to look afresh at what rights mean for them, and how they would like to see those rights reflected and applied.’ As representatives of over 46 organisations, working directly with individuals and communities across Scotland, we state very clearly that we do not want to see any change to the Human Rights Act as the foundation of our human rights protections.  We do not want any reduction in ability to enforce rights in court, nor any weakening of obligations on public authorities to take human rights seriously and to embed a human rights-based approach in their work.

We highlight that over 200 organisations support the Scotland Declaration on Human Rights[3] which states that they share profound concerns about ‘the persistent negative rhetoric around the protection and promotion of rights in the UK. We want Scotland to be a leader and not a laggard in human rights terms. We therefore call on law and policy makers to take all possible steps to protect our rights and to make Scotland a world leader in both rights protection and implementation.’  Amongst others, the Declaration states that these principles should apply:

  • No going back: Human rights and equalities protections in law, policy and practice must not be reduced or regressed for any individual, group, community or sector of the population.
  • Progression: Human rights standards should be continually strengthened over time.  Scotland must help to shape and adopt the highest international human rights and equalities standards.

We recommend that the UK Government take on board this significant level of support from Scottish civil society for strengthening and enhancing human rights protections.

Lack of proper consideration of implications for Scottish devolution

We note that question 19 asks about devolved implications specifically but we consider that from beginning to end of these proposals, there are significant implications for the foundation and operation of Scots law and devolution, and for the protection of people’s rights who live in Scotland.

As discussed further below, these proposals:

  • Create even greater legal uncertainty in Scotland
  • Impact significantly on areas of devolved competence
  • Ignore high public support for human rights in Scotland
  • Destabilise the foundation for enhanced human rights legal protections in areas of devolved competence

The UK should remain fully committed to international human rights

The UK has a number of obligations under international law, and the consultation reiterates these commitments. We welcome that the UK Government does not propose withdrawing from the ECHR and its substantive rights. However, we are concerned that the UK should not step away from its international obligations and become distant from international monitoring and jurisprudence. The UK should be a world leader on human rights, fully embracing and shaping our international human rights framework.  As organisations working everyday around the reality of human rights in people’s lives, we emphasise that there are significant benefits of remaining fully part of the international human rights legal framework. The UK’s international obligations, through treaties that its elected representatives opted to sign up to, should be implemented in full.

We need positive steps to protect human rights

  • Resource human rights education

We know that people support human rights when they understand how they can use and apply human rights to protect them and their families, and rights’ core values of dignity and respect. As recognised by the IHRAR recommendation that said ‘the Panel recommends that serious consideration is given by Government to developing an effective programme of civic and constitutional education in schools, universities and adult education. Such a programme should, particularly, focus on questions about human rights, the balance to be struck between such rights, and individual responsibilities’, it is time to introduce more human rights education across the UK.

  • Incorporate more international rights treaties

The consultation paper dismisses the idea of legally enforceable socio-economic rights in a single sentence (para 150). We, together with many organisations across Scotland, want to bring more of our international rights home, including socio-economic rights. We want to see ICESCR and group right treaties of CEDAW, ICERD and UNCRPD incorporated directly into UK law. 

  • Enable access to justice

There are too many barriers to judicial routes to justice, which mean that too many people cannot hold the government to account and cannot get remedy for rights infringements. In particular there are barriers around cost, who can take a case, gaps in legal advice and in independent advocacy.

Question 1: Interpretation of Convention rights: section 2 of the HRA

We are concerned about these proposals to downplay, and thus risk divergence from, the European Court of Human Rights case law in the interpretation of ECHR rights in courts in the UK. We note that this was considered at length by the IHRAR and they found judicial restraint and helpful dialogue between UK courts and the ECtHR, and they made one limited recommendation for change[4]. They further said that ‘to the extent that there is a significant gap between rights protection in the UK and that available before the ECtHR, it will run counter to the HRA’s original objective of bringing rights home. Moreover, it will be inconsistent with the UK’s commitment to the Convention.’ We note that UK court interaction with the ECtHR was also found to be positive by the Joint Committee on Human Rights[5].

The significant body of ECtHR case law provides for clarity and legal certainty around the interpretation and implementation of rights in Scotland and across the UK.  It has shaped Scottish law, policy and practice. Any legislation that seeks to move away from this interpretation opens up: the risk of increased tension with the ECtHR and our European neighbours; increased need for individuals to take cases to Strasbourg and the related cost and time that this takes, a significant barrier to access to justice – exactly what the HRA was set up to prevent; unhelpful divergence where we need cross-border cooperation and understanding including in response to global pandemics, environmental protections and protections for people crossing borders; and significant confusion and uncertainty around the detailed meaning and norms of rights in the UK.  Given that the current balance and interaction between UK courts and the ECtHR is working well, we fail to see any advantages, but only significant difficulties, of decoupling the ECHR in the UK from the ECtHR and risking creating significant gaps between them.

Furthermore, moving away from the ECtHR case law has very significant implications within Scottish devolution. As noted above, the ECHR in Scotland was not only given effect in the HRA but is also embedded into the Scotland Act 1998. There is a substantial body of case law built up over twenty+ years of UK courts consistently applying ECtHR case law in HRA and Scotland Act cases. Individuals have been able to take cases under the HRA, the Scotland Act 1998, or both.  Building in the conditions that would mean divergence from ECtHR jurisprudence into the HRA risks significant confusion for individuals and their lawyers in Scotland in deciding what rights standards, principles and norms apply and how they go about enforcing these rights. Diluting and complicating this baseline level of rights protections will be a barrier to people in Scotland accessing justice. It will also lead to significant legal uncertainty around ECHR principles and norms as they apply to different parts of legal human rights protections in Scotland, to the point where this proposal may well be unworkable within the devolved make-up of the UK.

Questions 8 – 9: A permissions stage for human rights claims

The framing of these questions around a problem with spurious human rights cases in the courts, and the need to only allow ‘genuine human rights matters’ to reach the courts, is problematic, dangerous and harmful. We note that no evidence is given to back up this claim, and we further note that unsuccessful cases are not equivalent to spurious cases, given the huge importance of the courts in clarifying the law.  We do not agree that reducing the number of human rights cases should be an aim of these proposals; instead, the aim of the HRA should be the protection of individuals’ human rights.  It is our experience that, in fact, many people are prevented from taking human rights cases to court because of barriers such as cost, information, access to legal advice, and the emotional and practical toll of dealing with the judicial system. We recommend instead that the UK Government, and the Scottish Government, consider what more can be done to address these barriers.

We also consider that a permissions stage would only add to these barriers, whilst simultaneously giving judges (or the court) an enhanced role in deciding the vague terms of ‘significant disadvantage’ and ‘overriding public importance’ before a case is even heard – this appears to contradict the UK government’s concern to limit judicial discretion.  It will also create legal uncertainty, is contrary to individuals being given a fair hearing, and is contrary to ECHR Article 34 of the state not hindering individual cases. There are already procedures in place to make sure that there are reasonable grounds for a judicial review, and put simply – we do not want a UK legal system which is tacitly ‘fine’ with some types of human rights infringements. The ECHR is already a baseline minimum floor, and any infringement of those rights should quite rightly be informed by, and determined by, UK courts.  This is part of the courts playing their proper and appropriate role in our multi-institutional human rights framework.

Question 10: How else could the government best ensure that the courts can focus on genuine human rights abuses?

We are very concerned about the UK Government’s stated aim of reducing human rights cases and about the framing of this question that suggests there is a problem with courts dealing with human rights claims that are not ‘genuine’. The core aim of the human rights legal framework should be to ensure that individuals’ human rights are protected, and this includes being able to access remedy through the courts.

Question 11: Positive obligations

Positive obligations are an inherent and vital part of our international human rights framework. They are not one part which can be siphoned off and limited – they are part and parcel of the protection of human rights for individuals. We highlight that positive obligations are particularly important for some groups such as disabled people, where it is often not enough for Government not to do something but that they need to actively eliminate barriers to disabled people’s human rights. Our experience is that positive human rights obligations on public authorities have been very beneficial for bringing improvements to Scottish law, policy and practice. We do not want to see any change to the provisions on positive obligations.

Question 15: Declarations of Incompatibility

The phrasing of this question is misleading – in fact, the proposal is to limit courts to only being able to provide the remedy of a Declaration of Incompatibility for secondary legislation, and removing the option to declare the legislation invalid or to disapply the provision. We consider that secondary legislation can have a significant impact on human rights, for example the family cap and related ‘rape clause’ under the Social Security (Restrictions on Amounts for Children and Qualifying Young Persons) Amendment Regulations 2017, or regulations to implement the ‘bedroom tax’. We note that sometimes secondary legislation can bring about consequences for individuals that Parliament did not intend, as well as consequences that breach human rights that should be immediately remedied. As found by the IHRAR, this current courts check on secondary legislation works well and is a crucial safeguard to human rights protection in the details of implementation of legislation.

We also highlight that eliminating the ‘strike down’ option for Westminster secondary legislation will create an anomaly with legislation from the Scottish Parliament. Under the Scotland Act, the Scottish Government, Scottish Ministers and the Scottish Parliament do not have the power to act inconsistently with Convention Rights. To do so is beyond their competence, or ultra vires. An Act of the Scottish Parliament is therefore “not law” so far as it is incompatible with any of the rights contained in the Convention, and can in effect be struck down or prevented from coming into force. We consider that this check has been a positive and important part of the HRA’s operation in Scottish law and policy making.  Courts have been cautious and slow to make any decisions of incompatibility, but it has nonetheless been an important tool and ultimate ‘emergency stop’ on legislation which will gravely impact people’s human rights. Whilst on occasion this may force Government to have to change and amend law and policy and priorities, a mature executive and legislature recognises the value of having this ultimate check on serious rights infringements.

Removing the option for Westminster secondary legislation to be declared invalid by the courts would create an anomaly in the UK where only devolved legislation is subjected to a higher human rights standard than any other legislation. Any such development at Westminster cannot be undertaken without considering its impact on the constitutional foundation and nature of devolution.

Question 19: Application to Wales, Scotland and Northern Ireland

We consider that this consultation gives scant reference to the significant implications of the proposals for the foundations of Scottish devolution and on the protection of human rights for people living in Scotland.

We emphasise that these proposed changes to the HRA in a replacement Bill would:

  • Create even greater legal uncertainty in Scotland

The ECHR is not only given effect in UK law through the HRA but also through the Scotland Act 1998. At ‘a devolved level, the ECHR plays a non-negotiable foundation – in other words a foundation on which to build and progress’ and is a ‘substantive pillar of the devolution settlement’[6]. The ECHR is a core element of devolved statute and over the twenty+ years of devolution, the ECHR has been the starting point and check on all Scottish Parliament law and Scottish Government policy.

Therefore, changing the HRA which incorporates the ECHR is no small matter for the foundation and operation of devolution but instead, is a complex and constitutional-level proposal. As Professor Nicole Busby writes, ‘the disturbance of any existing arrangements to the current structures within which the HRA operates risks unsettling the complex interaction between devolution and human rights which could give rise to a range of consequences for Scotland and her fellow devolved nations[7].’

As noted under Question 1, if interpretation and application of the ECHR under the HRA begins to diverge from the ECtHR case law and no longer reflects that court’s norms and standards, there will be significant legal uncertainty and confusion around interpretation of the ECHR in Scotland, in Scotland Act cases and in Scots law. This legal uncertainty will affect the rule of law and reduce access to justice.

  • Impact significantly on areas of devolved competence

The HRA can only be amended by the Westminster UK Parliament.  However, under Schedule 5 part 1 Scotland Act 1998, the following is not reserved i.e. it is devolved: ‘observing and implementing international obligations, obligations under the Human Rights Convention’.  These proposals have significant implications for observation and implementation of ECHR obligations, not least of which is the proposed decoupling of UK courts and ECtHR case law, reducing positive obligations on public authorities, and areas such as the right to a jury trial and the permissions stage. 

We note further that under the Sewel Convention, the UK parliament “will not normally legislate with regard to devolved matters without the consent” of the devolved legislatures.  Given that the consultation proposes to, not only amend or reform the HRA, but to replace it with a modern Bill of Rights, this would impact significantly on devolved matters and therefore come within the scope of the Sewel Convention.  As the Deputy First Minister stated[8], legislative consent should be sought from the Scottish Parliament on any resulting Bill of Rights.

  • Ignore high public support for human rights in Scotland

There is widespread support for human rights across Scottish civil society.  Our recent report[9] found that many Scottish organisations engage with human rights in their work, with many more keen to do so. Far from the sentiment expressed in the consultation paper of human rights having gone too far, in fact Scottish civil society organisations are clear that human rights do not yet go far enough. They want human rights to have more teeth to empower individuals and minority groups to have their rights protected and realised.  Time and time again, when we speak with organisations and community groups from across Scotland, they speak of the benefits of human rights for making sure that everyone, no matter who they are or where they are from, is treated with dignity and respect. We find little-to-no appetite for any reduction in the HRA and the routes to accountability and justice that it provides. We strongly urge the UK Government to take into account this high level of support for human rights in Scotland. 

  • Destabilise the foundation for enhanced human rights legal protections in areas of devolved competence

Further to above, there is also overwhelming support across Scottish civil society for building on the foundations of the HRA to incorporate more of our international human rights treaties directly into Scots law.  The UNCRC (Incorporation) (Scotland) Bill was passed unanimously by the Scottish Parliament in March 2021, with significant and vocal support from groups across Scotland and by many children and young people themselves. There is considerable support to now see this Bill amended to take into account the Supreme Court ruling and commenced as soon as possible.

Together with the Scottish Human Rights Commission, between October 2020-January 2021, the Consortium facilitated conversations of over 450 people about the proposal for an enhanced human rights framework in Scotland that includes economic, social and cultural rights, the right to a healthy environment, and group treaty rights. The overwhelming response was positive.  Participants spoke about the empowering benefits of stronger human rights law, and that it would change the way that decisions are made and would improve people’s lives.  The Taskforce, informed by these views and others, has since published recommendations for this enhanced human rights framework, all accepted by the Scottish Government. This new human rights incorporation bill will incorporate four more international human rights treaties into Scots law, as well as the right to a healthy environment and protections for older people and LGBTI people. This Bill is currently in development with a consultation expected soon.

The proposed reductions and destabilising of the very foundations of the HRA risks hindering and disrupting these very positive developments around enhanced human rights law in devolved areas.  Many of the HRA proposals change fundamental aspects of human rights legal protections across the UK such as the universality of human rights, positive obligations, strike down powers, taking into account the ECtHR, criteria to be able to take a case, amongst others – all of these foundational principles of the HRA would also rightly be foundational to wider human rights incorporation in devolved matters. If you reduce, change and water down these elements of the HRA, this will impact the way in which these fundamental principles can be relied upon, articulated and shape enhanced devolved human rights law.  Furthermore, as outlined above this, this will create legal uncertainty where there would be clear tensions, gaps and confusions between principles of devolved human rights law and the HRA, and this would not be in jeopardy if the HRA at a UK level simply maintained its working relationship with the ECtHR and maintained key human rights principles such as ensuring access to justice and accountability, the universality of human rights, and positive obligations.

It should be noted too, that this progressive direction of travel on human rights in devolved areas is no small matter that can be ignored – it has overwhelming support across civil society and cross-party support. It has come out of months, even years, of discussion and development and evidence.  We urge the UK Government not to ignore or destabilise these devolved human rights developments by changing the basis of UK-wide human rights law, but instead to work with the Scottish Government to enable them to happen fully.

Question 24-25: Migrants’ rights

We strongly emphasise that human rights apply to all, regardless of who you are or where you are from, and we are concerned about the suggestion in the consultation that human rights somehow ‘frustrate’ deportations. Human rights, such as the right not to be subjected to torture and the right to private and family life, should protect all of us. We are concerned that the consultation paper suggests that some people, simply because they are migrants, should not have access to the protection of all of their human rights.

Question 27: The role of responsibilities within the human rights framework

We entirely reject the idea that in any way, a person’s conduct should have any bearing on the protection of their human rights.  Human rights are about obligations on the State and rights of individuals – they are not about ‘responsibilities’ of individuals, and there should be no suggestion of courts or the State making judgments about ‘conduct’ in order to determine the remedies available when your rights are breached. For example, someone living with dementia in a care home should not be awarded reduced damages because they were subject to inhuman treatment, just because they committed an offence 10 years earlier; someone in their 50s whose freedom of expression has been breached should not be awarded less damages due to offences committed in their 20s. Human rights are fundamentally universal, they apply to everyone regardless of past conduct or behaviour and we strongly urge the UK Government to reiterate this and abandon any plans to take individual conduct into account in the HRA.

Question 29: Equality impacts

We consider that replacing the HRA with a Bill of Rights as set out in this consultation would fundamentally reduce everyone’s access to their human rights, and this would particularly impact people who are most at risk of rights infringements.  This includes all those with protected characteristics as well as other minority groups such as families of those in prison, people living in poverty, Gypsy Travellers, and many others. For example,

  • Disabled people and those with a long-term health condition make up 32% of the Scottish population, and live with far greater risk of breaches of their human rights. They are discriminated against in their access to services including essential services such as health, education and transport and in their access to social security, noted by the UN as a ‘grave and systemic violation’ of their rights. During the pandemic disabled people’s right to life was breached; 6 out of 10 deaths in Scotland involving COVID-19 were of disabled people. There is evidence that Deaf and Disabled People and older people may have been targeted for Do Not Resuscitate orders. Even before the pandemic, children and young people with learning disabilities were 12 times more likely to die prematurely.  In addition, disabled people face particular and additional problems in accessing justice[10].
  • Care Experienced people live with the current reality or legacy of significant state intervention in their lives. Who Cares? Scotland members are clear that they need to be able to enforce their rights in court, that this includes ‘to be able to bring their own cases to court concerning rights breaches, as well as organisations being able to bring cases on behalf of individuals’ and that they could not do so without additional support such as advocacy, legal advice and moral support. Care Experienced people often do not have access to all of the tools, enablers or connections that would enable them to enforce their rights through court and yet they have too often borne the brunt of human rights breaches by public authorities. Proposals that make access to justice more difficult, such as these proposals, would therefore have particular impact on Care Experienced people[11].
  • The Human Rights Act is a vital tool for women who need to challenge the police when they fail in domestic violence, rape and trafficking investigations. Protecting women’s right to life also requires public authorities including the Police to have positive obligations to protect -reducing the courts’ ability to require positive obligations means they will be unable to issue rulings that properly protect women from violence.

However, the Government’s equality assessment should specify that there would be negative impacts on all equality groups because all of them need access to justice and accountability, and these proposals would reduce this.

About this consultation

This consultation paper raises very significant constitutional and legal issues that impact people’s lives directly. However, the length and complexity of the paper is a barrier to the Government hearing from ordinary people about their experience of the HRA in practice.  In addition, the short timescale for the consultation including the Christmas holiday period, and the delay of any accessible versions such as in Easy Read, is regrettable.

We recommend that the Government publish all of the responses to this consultation on its website.  We also recommend that the Government publishes a full and considered response to the issues raised in consultation responses and does not proceed with any Bill until it has done so fully.

Human Rights Consortium Scotland March 2022

66 Hanover Street, Edinburgh EH2 1EL; @HRCScotland

SCIO: SC050099

[1] Human Rights Consortium Scotland and Amnesty International, Delivering Human Rights in Scotland During COVID-19: A 2020 Survey of Public Authorities, 2021

[2] For example, see Human Rights Consortium Scotland submission with 19 supporting organisations at

[3] See details at

[4] Independent Human Rights Act Review, full report available at:

[5] Joint Committee on Human Rights, The Government’s Independent Review of the Human Rights Act, available at:

[6] Boyle and Busby, Human Rights and Devolution: Devolution as a Vehicle for Human Rights Protection and Progress, 2021, available at:

[7] Busby, N, Human Rights and Devolution: The Independent Review of the Human Rights Act: Implications for Scotland, 2021, available at:

[8] Scottish Government, Human Rights Act: Letter to the Lord Chancellor, 21 December 2021, available at:

[9] Human Rights Consortium Scotland, with Nevens and Hutchinson, Capacity Review of Scottish Civil Society on Human Rights, 2022

[10] Flynn, E. Disabled Justice?, 2015, available at:

[11] Who Cares? Scotland, Navigating the World of Rights, 2020, available at: