A blog series By Barbara Bolton, Legal Director and Partner
What is the right to an effective remedy?
The right to an effective remedy for breaches of human rights is a general principle of international human rights law and is expressly set out in most international human rights treaties. [16] The Committee on Economic, Social and Cultural Rights (CESCR) has highlighted that people who experience breaches of for economic, social and cultural rights must have accessible, affordable, timely and effective (AATE) remedies. [17]
As the Scottish Human Rights Commission (SHRC) set out in a paper for the Taskforce, based on comments by CESCR, the AATE requirements cover:
Accessible – there must be: simple, uncomplicated routes to securing a remedy; widely available and actively promoted information about the existence of the remedy and how to obtain it; avoidance of unduly restrictive time limits; legal advice available for those who need it; flexible rules allowing representative organisations to bring public interest litigation.
Affordable – remedies should be available without any cost, and where costs are unavoidable they should be affordable, with free provision for those who need it. Legal aid should be available for those who need it, to meet costs related to litigation and to cover fees for legal representation.
Timely – remedies should be prompt, without undue delay. Accessible and affordable routes to securing urgent remedies must be available, including interim measures preventing further harm and ensuring basic needs are met pending a final determination.
Effective – there must be: both administrative and judicial routes to remedy; appeal of administrative decisions to courts or tribunals; a range of effective remedies, including restitution, compensation, rehabilitation, satisfaction (e.g. apology) and guarantees of non-repetition; structural remedies, such as structural interdicts; the possibility of collective or group litigation; effective enforcement of remedies.
Scotland’s Civil Justice System – barriers to accessing justice
There are a number of well-known and well-documented barriers to accessing an effective remedy through Scotland’s administrative and civil justice system, including:
- lack of information about rights and routes to remedy;
- limited independent advocacy;
- complexity and range of potential routes to remedy (range of institutions, powers, remit and rules);
- lack of integration / connectivity between various routes;
- time; emotional drain; risk/uncertainty;
- scarcity of legal advice and representation;
- very strict/unfair deadlines;
- prohibitive cost (own costs and risk of having to pay other side’s);
- limited remedies available;
- barriers for NGO’s (cost / standing);
- lack of data (e.g. for strategic public interest litigation).
We know about these barriers from our experience as court solicitors, from our case work at JustRight Scotland, from discussions with colleagues at other human rights organisations and law centres, and from research. [18] The Taskforce, which included the SG, was provided with detailed information about these barriers, from those with lived experience, NGO’s, academics and practicing lawyers. Indeed, the SG commissioned the Human Rights Consortium to facilitate a Lived Experience Board, which met from February 2022, and which provided extensive evidence of the barriers to securing a remedy for breach of human rights people already face. [19] As Professor Katie Boyle has noted, these barriers will be compounded for economic, social and cultural rights. [20]
How will those barriers affect people experiencing breach of economic, social or cultural rights?
If someone is living in poverty, does not have adequate housing or food, and their right to health is not being fulfilled, the barriers to securing an effective remedy will be manifold. How does someone in that situation even begin to consider attempting to secure a remedy? How would they know their rights are being breached or that they may have a legal remedy? Where do they turn, who can advise and support them, who can offer them representation, what will it cost, and do they have the mental and emotional resources to engage with an intensive, bureaucratic process? And what if the situation is urgent, how do they secure an immediate remedy?
At the moment, they would likely have to work out for themselves that they have a legal right that is being breached, and that they may be able to take action. They may be able to find general information online, if they have access to the internet, but many do not, and the proportion of people who do not will be higher for the people most likely to be affected by breaches of ESC rights. [21]
Even if they do, there may be language barriers and/or other accessibility barriers. The information available is also patchy, provided by a range of NGO’s and charities, with no one-stop-shop. Navigating that to locate reliable, applicable information and guidance for a particular situation is challenging, and could be impossible for someone experiencing an ESC rights breach.
If they do manage to identify that they may have a legal right and the possibility of a remedy, they then need to find a solicitor to represent them. Legal aid can only be obtained through a registered legal aid solicitor, so if they can’t locate a legal aid solicitor, willing and able to take them on as a client, they can’t access state funded legal advice. There is a significant and increasing shortage of legal aid solicitors in Scotland, particularly outside the central belt. The Law Society of Scotland noted that the shortage of legal aid solicitors is causing people to be deprived of civil justice and that the legal aid crisis “specifically impacts society’s most deprived and vulnerable, perpetuating further disadvantage”. [22]
If they cannot locate a legal aid solicitor, the only possibility may be to represent themselves, but for most that will not be a real option due to the complexity and inaccessibility of Scotland’s civil and administrative justice system.
Consultation proposals
The barriers preventing people from accessing justice were raised and discussed through the Taskforce process, which resulted in a set of recommendations related to access to justice, including recommendations 21, 25 and 26 referred to above. The Consultation states that they want to ensure there are routes to remedy available for when there has been an individual or systemic infringement of people’s human rights and that the remedies are accessible, affordable, timely and effective. [23] Yet, the very limited proposals on access to justice would not achieve that. However, although the SG accepted all of these recommendations, the Consultation proposals offer very little on this.
Information about rights
We need much improved access to information about rights and how to secure a remedy for rights breaches. The information should not only be widely available, but actively promoted. Everyone should come into contact with this information, in various ways depending on their life experience. That should include the education system for those going through it, but it should also include places people visit regularly for day-to-day purposes, such as doctors, chemists, supermarkets, post offices, banks, public transport hubs, libraries and community centres. Unfortunately, the public realm is ever shrinking and public services are considerably and increasingly privatised. That means reaching people where they are is likely to involve reaching agreement with private providers to display information. However, general information only goes so far. It can be very difficult to apply general information to specific situations. What many people will need is to speak to someone who can assist them.
Independent Advocacy
An independent advocate is usually someone who is not legally qualified, and so is not providing legal advice. They would usually provide support, guidance and information in a range of ways, including by advocating on their behalf, interacting with the public authority or authorities to seek a remedy for the situation, where there appears to be breach of human rights. [24] Having someone who can advocate for or with them, who is not living through the difficult situation themselves, who can give time, energy, knowledge and experience of applying human rights to the situation and engage with public services, including through a complaints procedure, can be invaluable. At the Scottish Just Law Centre we strongly encourage people to seek out the support of an independent advocate wherever possible. [25] However, independent advocacy services are very patchy, with different organisations providing advocacy related to particular subject and/or needs. Provision varies considerably from one area to another and, in our experience, often people are not able to secure any independent advocacy support.
CAS
They may be able to obtain initial advice from the Citizens Advice Service helpline or from visiting one of its offices if they live nearby. One of the great strengths of CAS is that it has a presence on many high streets across Scotland, and it is often the only places people can physically visit to speak to someone who can provide advice.
However, CAS is limited in the advice it can provide. The availability of legally qualified staff varies from office to office. The specialist topics noted on its website are: universal credit, money advice, defined contribution pensions, NHS complaints and members of the armed forces. For other matters, CAS may be limited to signposting people to other organisations, such as Shelter for housing information. [26]
The Consultation does not put forward proposals in relation in relation to information, advocacy or general advice about human rights or the rights that will be covered in
the Bill. This is disappointing given the discussion of the issues through the Taskforce and evidence from the Lived Experience Leadership Board.
Legal Advice / Legal Representation /SLAB
As discussed above, we are in a legal aid crisis and those most affected include those most likely to suffer breach of their economic, social and cultural rights. The shortage of legal aid solicitors must be addressed by reforming the system to reduce the administrative and bureaucratic burden on solicitors and increase the level of financial recovery for work done, in terms of rates and what is chargeable. In other words, it needs to be made sustainable.
The consultation contains only two sentences on legal aid, noting its importance and noting the SG remains committed to reforming the current system. However, there are no proposals for reform. A legal aid bill was also disappointingly absent from this year’s Programme for Government. It therefore seems the Bill will move forward without any measures being taken to address legal advice and representation desserts in Scotland. Without measures to effectively address the lack of affordable legal advice and representation, people will be denied access to justice for breach of rights in this Bill as they are for other rights.
In addition, many people who do not qualify for legal aid are also not wealthy enough to be able to fund an expensive court action, as well as taking on the risk of having to pay the other side’s legal costs if they lose. In addition to reforming legal aid, significant improvement could be made to access to justice by introducing new rules protecting those pursuing human rights claims from the possibility of having to pay the other side’s costs. This was recently done for personal injury claims, recognising the imbalance between an individual pursuer in a personal injury claim, and the defending company or employer, who will usually be covered by insurers. A similar power imbalance exists for individuals pursuing human rights claims against the state, or government. Detailed consideration ought to be given to the introduction of special rules for human rights claims, to protect people from the risk of having to pay the other side’s legal costs.
Court fees should also be waived for those pursuing human rights claims.
Complexity / Inaccessibility
The Scottish administrative and civil justice system is a highly complex landscape of regulators, ombuds, tribunals and courts, each with their own particular remits, deadlines, procedural rules, and powers. Even selecting an entry point can be incredibly challenging for someone experiencing a breach of rights, particularly for those who does not have an independent advocate or legal representation.
Should they complain to the public authority? How accessible is that? Will that involve the public authority reviewing itself? How likely is that to lead to a resolution? What proportion of claims concerning rights breaches currently lead to a satisfactory outcome? How long will it take?
From our casework, we are aware of many clients who have attempted to resolve things through a public authority’s complaints procedure, who did not secure a meaningful resolution and who therefore had to pursue a legal remedy with our assistance. There will be many more who could not do so, as they did not have the time or emotional resources it takes to pursue a complaint, and/or because they couldn’t find a legal aid solicitor with capacity. It is also our experience that public authorities can be highly defensive when asked to reconsider their actions, rather than viewing a complaint as an opportunity to reflect and resolve situations without the need for court action. Asking the same entity that breached your rights to find itself wanting and require itself to take the action it refused to take, it inherently an uphill struggle.
We are also aware that the complaint process can take months, often longer than the three month period within which a Judicial Review must be raised (as discussed below). The complaints process is not joined up with the court or tribunal system, and so time spent trying to resolve things in that more informal could mean they are too late to raise it in court if it is not resolved.
While the general proposal to try to improve the public authority complaints process is positive, the Consultation does not contain any meaningful proposals for reform of the public authority complaint process. Has consideration been given to changes in process and practice, drawing on good examples that may exist in other jurisdictions, that could improve the current situation, where people are asking the decision-maker to review its own work? The Consultation refers only to the SG having had discussions with the Scottish Public Services Ombudsman (“SPSO”) [27] about updating its model complaints handling procedures. While the SPSO is an important stakeholder, it is important that the SG look beyond the existing system for examples of good practice and potential reforms that could be introduced.
As well as drawing up the standard complaint process for public authorities, the SPSO is also the final stage for those complaints. Someone experiencing a breach of their rights can only go to the SPSO if they’ve completed the public authority complaint procedure, and then only in relation to matters raised in the initial complaint which the SPSO agrees to consider, and they must go to the SPSO within 12 months of the event complained of. The SPSO currently has a 4 month wait period for a complaint to be allocated to a complaint reviewer. It can then take many months to obtain an outcome, by which time it will be long past the three month deadline for raising a Judicial Review.
Perhaps most importantly, the SPSO can only issue recommendations. It cannot issue binding, enforceable decisions. If a public authority fails to comply with a recommendation the SPSO’s only power is to make a report to the Scottish Parliament. In the 21 years since it was set up, the SPSO has never done so. For the SPSO, this is a positive. It notes on its website that it has never had to make a report to the Scottish Parliament because public bodies usually comply with its recommendations and it follows up to rigorously check with them that they have done so. [28] However, we are not aware of any independent study reviewing the effectiveness of the SPSO’s complaints handling process, in terms of remedying failures. What we can say is that many of our clients, current and former, have attempted to resolve public authority failures through the SPSO and have been left frustrated by the process; by the length of time it takes, the narrow approach taken and, most importantly, by the failure to provide a real remedy.
One of the few proposals in the Consultation related to access to justice is to add human rights to the remit of the SPSO. This would mean the SPSO could consider rights in the Bill as part of any complaint, whether raised by the complainant or not. [29] While access to a free and relatively easy process is essential, the remedy provided by administrative mechanisms must also be effective. While the SPSO’s view is that it should no more than powers of recommendation in order to retain constructive working relationships with local authorities, what is the view of rights holders? Careful consideration should be given to the SPSO’s very limited powers and the effectiveness of its recommendations before deciding that simply adding human rights to its remit will provide an effective administrative route to remedy for breaches of the rights contained in the SHRB. [30]
Administrative remedies must also be reviewable. Currently there is no link between the SPSO and the court and tribunal system. On the one hand this provides flexibility to the individual, which is positive, as they shouldn’t be required to complete an informal administrative process before being able to raise a claim in court. On the other hand, the lack of connectivity means the SPSO’s recommendations are not reviewable, and if that process does not result in an effective remedy, the individual has to begin all over again, by raising a court action. However, by then it will be too late to raise one of the most common forms of human rights claim Judicial Review. There needs to be connectivity between the various processes to ensure that the burden on the person experiencing the rights breach is reduced, and that they are not put at risk of being barred from another part of the overall system. If they raise a claim, in whichever part of the system, that ought to be adequate. The system should be sufficiently joined up so that the claim can be sent to another area of the system without having to start again (by what’s called remittal), and all timebar clocks should stop running when that initial claim is raised.
The Consultation states that further consideration is being given to how pursuing a complaint with the SPSO could interact with court routes to remedy, such as judicial review. Any such proposals should be put out for consultation.
The Consultation also notes that scrutiny bodies play an important role in upholding human rights and driving culture change, and again suggests that human rights be expressly added to their mandates. However, if significant reliance is being placed on scrutiny bodies, we should have confidence that the inspectorates and regulators we have cover all areas of public life. There is no suggestion that any mapping exercise has been done to identify gaps in the scrutiny body landscape. From our experience, we are aware that the remit of the inspectorates can be unclear, and in practice they can apply a more restrictive approach to the types of matters they will review than their website might indicate. They also apply time limits, with some only considering things that happened in the past 6 months. If we are relying on them to provide play an important role, we should be clear as to what each covers (in practice as well as on paper).
* Please note that this is a work in progress and more content will be added on a rolling basis.
Please read
Access to Justice and the Right to an Effective Remedy [Blog 1 – part 1]
Access to Justice and the Right to an Effective Remedy [Blog 1 – part 3]
