Access to Justice and the Right to an Effective Remedy [Blog 1 – part 1]

Scale

by Barbara Bolton, Legal Director and Partner

Introduction – A Scottish Human Rights Bill

By the end of June 2024, the Scottish Government (SG) will introduce a Bill to the Scottish Parliament (SP) that will bring a number of international human rights into Scots law for the first time, including economic, social, cultural and environmental rights. We will refer to that Bill as the Scottish Human Rights Bill (SHRB). The SG’s commitment is to see that Bill passed by the Scottish Parliament during this parliamentary term, by April 2026. If the Bill is passed it will be the first time international economic, social, cultural and environmental rights have been incorporated into national law within the UK. [7]

The launch of the consultation on a proposed SHRB in June 2023 (the Consultation) [8] came after many years’ work by civil society, NGO’s, the Scottish Human Rights Commission (SHRC), academics and others. Responding to longstanding calls to incorporate international human rights, the Scottish Government set up the First Minister’s Advisory Group on Human Rights Leadership (FMAG) in 2017, [9] followed by the National Taskforce for Human Rights Leadership (the Taskforce), in 2019. [10]
The Taskforce produced its report in March 2021 [11] and the SG accepted all 30 of its recommendations, committing to implementing them to the greatest extent possible within the confines of the devolution settlement. [12]

 

Taskforce recommendations on access to justice

The Taskforce, which included the Scottish Government itself, had the benefit of a wide range of extensive expertise, including from those with lived experience, NGO’s, academics and practicing lawyers, and it obtained detailed expert advice on a number of areas. [13]

The Taskforce made a number of recommendations regarding access to justice, including:

Recommendation 21: Through engagement with key stakeholders, including those who face additional access to justice barriers, further consider accessible, affordable, timely, and effective remedies and routes to remedy that will be provided for under the framework.

Recommendation 25: Further consider how the framework could provide for the full range of appropriate remedies under international law to be ordered by a court or tribunal when needed, including targeted remedies which could provide for non-repetition of the breach (such as structural interdicts).

Recommendation 26: As part of the development of the framework, to further explore access to justice, taking into account the views of right-holders, in order to consider how the framework could help provide a more accessible, affordable, timely, and effective judicial route to remedy.

 

Weakness of Consultation on Access to Justice

The Consultation is particularly weak on access to justice.

For people experiencing breaches of their human rights, it is essential that they are able to effectively challenge that breach and secure an effective remedy, holding those in breach to account. In the absence of that, incorporated rights are illusory; they may appear on paper, but they are not real. They hold out promise, but they do not deliver. A key right under international human rights law is therefore the right to an effective remedy.

Despite accepting all the Taskforce’s recommendations over two years ago, including those on access to justice, and although the Scottish Government was part of the Taskforce and so heard and received all of the extensive evidence provided to it, the Consultation document indicates that little to no work has been done to further consider or explore the matters recommended by the Taskforce. This is very disappointing given the central importance of effective remedies and accountability to the success of incorporation.

In relation to Taskforce Recommendations 21, 25 and 26, there are very few proposals in the Consultation. Those limited proposals it does set out are extremely narrow and do not address the considerable barriers to accessing justice that are well known in Scotland, as discussed below.

The SHRB was included in the recently announced 2023/24 Programme for Government [14], meaning that a Bill should be introduced by June 2024. While the SG claims that work is ongoing on access to justice, is very difficult to see how they will go from the almost complete absence of proposals in the Consultation, to detailed provisions in a SHRB within months. Moreover, there does not appear to be any time remaining for consultation on such proposals. While we will continue to advocate for the strongest possible provisions on access to justice in the SHRB, it is simply not possible that the SHRB will make all the changes necessary to bring the Scottish civil and administrative justice system into line with the requirements of international human rights law.

It is therefore imperative that the SHRB includes the substantive international human right to an Accessible, Affordable, Timely and Effective remedy for breach of the rights contained in the SHRB. It is critically important that this right is included in the overarching framework Bill, in order that the SG and SP can then be pressed to introduce more detailed legislation on specific aspects of access to justice and, if necessary, challenges brought in court. Incorporation of the right to an effective remedy will also ensure a connection to international standards on access to justice, which will continue to evolve and be elaborated upon. [15]

The Consultation recognises that when rights are breached remedies must be accessible, affordable, timely and effective (page 35). However, there is no recognition in the Consultation that this right, and these specific requirements, must be included on the face of the Bill.Given the SG’s commitment to incorporating international human rights to the maximum extent possible under devolution, the explicit right to an effective remedy for breach must be included on the face of the bill.

Devolution limits should not prevent the SP from incorporating this right in relation to the rights in the Bill. Scotland has always had a separate legal system, which was protected when Scotland united with England and Wales in 1707, and this did not change through devolution. There are specific reservations which place limitations on the SP, such as the requirement that HRA claims be raised within a year, and by those who qualify as “victims” as defined in the HRA, and the EA requirement that claims be raised within 6 months. SP legislation cannot alter these requirements because they are specifically reserved, meaning only the UK Parliament could change these rules. However, aside from specific reservations such as these, the SP can legislate on all aspects of civil and administrative justice in Scotland. Generally, if the SP can incorporate a right within devolved competence, it should be able to incorporate the right to an effective remedy for breach of that right, and make whatever changes are necessary to fulfil that right.

 

 

 

* Please note that this is a work in progress and more content will be added on a rolling basis.

Please read

Intro – Scotland’s Human Rights Bill: an opportunity to strengthen human rights and access to justice in Scotland
Access to Justice and the Right to an Effective Remedy [Blog 1 – part 2]

 

[7] The Scottish Parliament has already passed legislation seeking to incorporate economic, social, cultural and environmental rights into Scots law. It unanimously passed the UNCRC Bill in 2021. However, the UNCRC Bill was prevented from becoming law by the UK Government challenging it as being outwith the devolved competence of the Scottish Parliament in specific ways, which the Supreme Court agreed with. A further section of this blog series will look closely at the impact of the UNCRC decision and the parameters of devolved competence, which is a key consideration in relation to the SHRB. While Wales has already passed legislation that requires public authorities to have regard to the rights contained in the United Nations Convention on the Rights of the Child, a duty to have due regard to rights falls short of incorporating those rights in a way that makes them enforceable, or real, as will be discussed in a further section of this blog series.
[8] A Human Rights Bill for Scotland: consultation – gov.scot (www.gov.scot) 
[9] First Minister’s Advisory Group on Human Rights Leadership Home – It produced a report with a number of recommendations in December 2018: First-Ministers-Advisory-Group-on-Human-Rights-Leadership-Final-report-for-publication.pdf (humanrightsleadership.scot)
[10] Human Rights Leadership: national taskforce – gov.scot (www.gov.scot)
[11] National Taskforce for Human Rights: leadership report – gov.scot (www.gov.scot)
[12] As confirmed in the guide to the consultation: https://www.gov.scot/publications/human-rights-bill-scotland-guide-consultation/ and as noted by the Scottish Government in its submission to the Universal Periodic Review in October 2022: https://www.gov.scot/publications/universal-periodic-review-2022-scottish-government-position-statement/pages/4/
[13] National Taskforce for Human Rights: leadership report – gov.scot (www.gov.scot) See Annexes B, C and D. See also https://www.law.ox.ac.uk/sites/default/files/migrated/bonavero_report_12021_1.pdf; https://www.gov.scot/publications/national-taskforce-for-human-rights-leadership-academic-advisory-panel-papers/
[14] https://www.gov.scot/publications/programme-government-2023-24/pages/14/ under bills for introduction
[15] The SHRB is intended to be framework legislation, meaning it should set out the overarching rights framework under which more detailed legislation should be introduced covering specific rights or areas of rights. For the background to the Bill see: https://www.scottishhumanrights.com/media/2454/shrc-building-a-new-human-rights-framework-for-scotland-key-legal-features.pdf pages 19-22. A summary version of that document is also available: https://www.scottishhumanrights.com/media/2343/2022_09_14-shrc-hr-bill-legal-framework-executive-summary.pdf The Scottish Human Rights Commission (SHRC) gave an example of this in relation to the right to food, noting that the overarching right to food would be protected in the framework human rights bill, underpinned by more detailed legislation giving effect to that right: https://www.scottishhumanrights.com/media/1845/good-food-nation-shrc-consultation-response-final-4-april-2019.docx at page 28-29.

 

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