Commission details concerns about UK Government proposals to replace the Human Rights Act

The Scottish Human Rights Commission has responded to the UK Government’s consultation on its proposals to replace the Human Rights Act with a new Bill of Rights, detailing extensive concerns about the regressive impact of the changes planned. 

Barbara Bolton, Head of Legal and Policy at the Scottish Human Rights Commission, said:

“The UK Government’s plan to replace the Human Rights Act with a new Bill of Rights signals an intent to water down human rights protections, erect additional barriers to accessing justice and equivocate on compliance with decisions of the European Court of Human Rights involving the UK.

“If passed, these proposals would be deeply regressive, undermining 20 years of human rights law and policy development across the UK, making it harder for people to enforce their rights and putting the UK in breach of its international obligations. This should be of grave concern to us all.”

In the consultation response the Commission lays out its concerns in detail.

Key points include:

False premise

  • The UK Government’s plan is a project based on false premises, employs a flawed consultation process and will deliver primarily negative outcomes for the people and institutions of the UK.
  • Over 20 years, the incorporation of the European Convention on Human Rights (the Convention) in UK courts, through the Human Rights Act, has had a significant, positive impact on people across the UK in many areas, including: children, disability, equality, health, justice, privacy, religion and belief, rights at work, seeking refuge, speech and protest and victims of crime.
  • The Commission does not accept the premise there is lack of “ownership” of human rights. In Scotland, there is longstanding support for human rights. Over 200 civil society organisations have signed the Scotland Declaration on Human Rights, expressing their united support for ensuring that Scotland is a world leader in rights protection and implementation.

Access to justice

  • Additional proposals would add a number of significant hurdles to accessing justice, compounding existing barriers related to the complexity of law and procedure, the cost of securing legal advice and the lack of legal aid.
  • If, as proposed, national courts must interpret rights distinctly from the European Court of Human Rights (ECtHR), the result will be legal conflict, confusion, uncertainty, and a likely increase in successful referrals to the ECtHR. The additional proposal of a “democratic shield,” expressly permitting the UK to decline to implement ECtHR decisions against it, would put the UK in clear breach of the Convention and undermine the rule of law.

Flawed process

  • The UK Government has disregarded the outcome of its own Independent Human Rights Act Review (IHRAR). The IHRAR took evidence from across the UK for nine months, producing a detailed report and concluding there is no case for the kind of widespread reform the UK Government has put forward.
  • It is vital that such a fundamental piece of legislation should not be introduced without direct, active participation of people whose rights will be most affected by any changes. In the absence of a truly participative process, the Commission considers the consultation exercise to be flawed.

Devolution and the Human Rights Act in Scotland

  • A key concern is the complexity in the interrelationship between the Human Rights Act and devolution. The Act and Convention compliance are embedded into the Scotland Act 1998. Convention rights have become part of the fabric of Scotland’s laws, judicial analysis and the legislative competence of the Scottish Parliament. This is widely considered to be a positive dimension to devolution, and the Parliament, public authorities and civil society have sought to build on this in developing a rights-based culture.

The Commission strongly urges the UK Government to comply in full with its obligations under the European Convention on Human Rights and retain the Human Rights Act in its current form.


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Notes to Editors 

  1. Read our joint statement with four other leading Scottish human rights organisations to the UK Government’s initial proposals Scottish human rights organisations unite to reject “unnecessary, regressive and divisive” plans to replace Human Rights Act