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THE USE OF HUMAN RIGHTS LEGISLATION IN THE SCOTTISH COURTS

CHAPTER SIX: CONCLUSIONS

THE EFFECTS OF THE HUMAN RIGHTS LEGISLATION

6.1 The enactment of the Scotland Act and the Human Rights Act both brought about major constitutional change. We hope our research will make a contribution to an assessment of the effects of that change and, more broadly, to evaluation of the legislation. As we indicated in Chapter One, there are many dimensions to the impact of the legislation, which might be described through effects on:

• the business of the courts (its volume, procedures and practices, training needs, resources required)
• the legal profession (increased business, changes in the way cases are argued, training needs, levels of awareness of human rights issues)
• the public (awareness and understanding, propensity to seek legal advice on human rights questions).
• public administration (need to change policies, procedures and practices, need to engage in 'human rights proofing' of activities, levels of awareness, development of human rights culture)
• policy development and the legislative process (rights-proofing in policy development, special procedures for legislation, awareness of human rights issues amongst Ministers, civil servants, MPS and MSPs)
• legal doctrine and judicial decision-making (how judges use human rights arguments to make decisions, weight given to Strasbourg case law, consistency with Strasbourg case law).

6.2 The aims and objectives of the research, although relevant to all of these dimensions, and the design of the research were such that it could contribute to the assessment of only some of these possible effects. In particular it did not seek data on general public awareness of human rights issues.

Effects on the courts

6.3 It is clear that cases raising human rights issues under the Convention have become an established category of argument in the Scottish courts in both civil and criminal cases. Although there has certainly been a drop in the number of criminal cases raising human rights arguments, since the initial post-devolution flurry of activity, there continues to be a steady stream of both civil and criminal human rights cases. Whether the frequency with which human rights points have been raised is appropriate, given the number of arguable Convention rights violations, is not something we could say. Forming a judgment on that question would require far more extensive research than our essentially court-based project.

6.4 It is important to note, however, that cases raising human rights issues are only a tiny fraction of the total caseload of the Scottish courts, on both the civil and criminal side. Bearing in mind that the majority of cases in which human rights arguments have been raised are cases which would have proceeded in any event, it is clear that the introduction of human rights cases has not had major resource implications for the justice system, in general, at least in terms of caseloads and the time spent processing cases. There have been some resource implications in the area of judicial training.

6.5 Looking at specific procedures, it appears that, relative to total case load, human rights points are made most frequently in judicial review proceedings. However, it is unlikely that this has led to a substantial shift of judicial resources towards judicial review procedure, as in most cases a human rights argument has been included in an application that would have been brought on other grounds.

6.6 The vast majority of cases raising human rights arguments are citizen-state disputes. We cannot say how frequently cases in which both or all parties are private parties arise as we do not have data on all unreported civil cases, but analysis of reported cases suggests that they are not uncommon with 29.5% of the reported civil cases being of this type. This is an interesting finding in light of the extensive discussion in the literature of the so-called 'horizontal effect' of the Human Rights Act.

6.7 The full range of Convention rights has been deployed in argument, although with a predominance of Article 6 issues (fair trial) especially on the criminal side. It is worth noting that a claim of undue delay was made in nearly 40% of the criminal cases that the research identified as having raised a human rights issue. However, it is not possible to say on the basis of our limited data whether this suggests any systemic problem of delay in criminal justice in Scotland, and worth noting that all the criminal cases we found represent less than 1% of all criminal cases, and cases raising arguments of undue delay comprise less than 0.5% of all criminal cases in Scotland.

6.8 It was not possible to establish outcomes and whether they were affected by human rights arguments for all cases. However, a review of reported cases indicated that a remedy was granted under human rights legislation in a substantial proportion (40%) of reported cases, but it cannot be assumed that this proportion would hold good for cases generally. Indeed it seems plausible to assume that the proportion in which remedies were granted under the human rights legislation in unreported cases would be lower given that cases in which weak or speculative human rights arguments are deployed are less likely to be reported.

Effects on the legal profession

6.9 The human rights legislation has had some effect on the legal profession in that it has encouraged the deployment by lawyers of arguments based on Convention rights. The frequency with which such arguments were deployed before devolution could not be ascertained but anecdotal evidence suggests that such arguments were raised very rarely and, until the decision in T, Petitioner,⁹⁵ the case law did not encourage Scots lawyers to use the Convention. Given the publicity surrounding the introduction of the legislation, the increase in training provision, the increased availability of relevant literature aimed at practitioners, and the volume of case law since devolution, the legal profession must be better informed than before about Convention rights.

6.10 Although it was not an aim of the research to assess levels of awareness and understanding of Convention rights, our review of reported cases provided some information on this point. In some examples, the arguments of the party making the human rights claim seemed highly speculative or ill-founded, sometimes mistaking the relevance of particular articles of the Convention, but this was true of only a small minority of cases. However, for most of the unreported cases, court records did not disclose the details of the argument, so we were unable to determine how frequently poor or speculative arguments were used in human rights cases generally.

6.11 Two of our other findings give possible cause for concern over the readiness of the legal profession in Scotland to respond to the challenges posed by the Human Rights Act and the Scotland Act. The first was the uneven geographical distribution of human rights cases in the criminal courts (we did not have equivalent data for the civil courts), which might suggest that the possibilities for using human rights arguments are being under-exploited in some areas, a problem identified in a recent impact study of the Human Rights Act in South Wales (Costigan et al, 2004), albeit no such conclusion could be drawn as regards Scotland without more data. The second was that the reported cases did not display the richness and diversity of the challenges that have been mounted in England and Wales since the entry into force of the Human Rights Act. This, of course, is not conclusive as there are a variety of factors which might lead to a more diverse range of challenges in England and Wales, such as its being a much larger jurisdiction, the concentration of government in the South-East, and the concentration of well-resourced lobby groups, especially those with expertise in human rights, in the South-East.

Effects on the public

6.12 It is reasonable to suppose that the introduction of human rights legislation has had some effect on the public in terms of levels of awareness and understanding of human rights issues and any propensity to seek legal advice on related questions. After all, there has been considerable publicity given to human rights cases in the media. However, it was not part of the project design to assess levels of public awareness and understanding of Convention rights.

Effects on public policy and administration

6.13 In Chapter Four we discussed the impact of human rights litigation, primarily, by reference to reported cases, in particular areas of Scots law and on particular sectors of public administration. In terms of volume of cases, the most pronounced impact has been on the criminal justice system. On the civil side it is harder to judge the relative volume of cases as comprehensive data on unreported cases are impossible to obtain. Insofar as the breakdown of reported cases is a reliable indicator of the distribution of subject matter in cases generally, it suggests that the area most frequently subject to litigation is immigration control (including asylum). There is another cluster of cases on matters relating to children, and we are aware from our sampling exercise of a cluster of cases on prison conditions (mostly about the practice of 'slopping out').

6.14 Of course, the impact of litigation on public bodies and public policy is not just about numbers - a single case can be significant if it calls into question the legality of an established policy. The most clear-cut case of policy reversal has been the abolition of the position of temporary sheriff by the Bail, Judicial Appointments, Etc. (Scotland) Act 2000 following the decision in Starrs v Ruxton, that the prior arrangements were incompatible with Article 6. Less dramatic but still important was the decision in Flynn v HM Advocate 2004 SLT 863 which ruled that the Convention Rights (Compliance) (Scotland) Act 2001 could not be interpreted to extend the punishment period in life sentences to more than it would have been under the earlier legislation. Admittedly, the court also relied on arguments not based on the Convention, so it is not clear that the same result would not have been arrived at anyway. A number of cases have challenged the continuation of slopping out in prisons. In Napier v the Scottish Ministers, Lord Bonomy found that the conditions experienced by the pursuer amounted to a violation of Article 3, but the decision turned in part on factors peculiar to the situation of the pursuer, and does not appear to say that requiring prisoners to slop out is unlawful per se. The decision is under appeal at the time of writing. The claim that fixed fees for legal aid in summary criminal cases were incompatible with Article 6 was also effectively rejected in Buchanan v McLean,⁹⁶ but the court did accept that there were cases in which the fixed fee regime should not apply, and since then the Scottish Legal Aid Board has exercised a discretion to award a higher fee than the fixed fee in appropriate cases.

6.15 However, the majority of the more significant (in policy terms) challenges have been unsuccessful. For example, many aspects of the structure of decision-making and appeals in town and country planning were threatened by the claim advanced in County Properties Ltd v the Scottish Ministers⁹⁷ but, following the decision of the House of Lords in Alconbury,⁹⁸ the argument that there had been a violation of Article 6 was rejected. The challenges to the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 under Article 5 and to the Protection Of Wild Mammals (Scotland) Act 2002 under various articles were rejected in Anderson v Scottish Ministers and Adams v Scottish Ministers respectively. The challenge to the application of section 172 of the Road Traffic Act 1988 was rejected by the Privy Council in Brown v Stott, overturning the decision of the High Court.

6.16 Accordingly, although there has been a substantial number of cases in which human rights arguments have been successful, the case law under human rights legislation has had a significant, but not taken as a whole a major, impact on the policies and practices of government in Scotland. However, it must be stressed that this relates only to changes introduced as a direct consequence of litigation, and not to more indirect impacts on the legislation. In that regard, it is important to note that the Scottish Executive and Scottish Parliament have attempted to pre-empt a number of potential challenges through the introduction of legislation such as the Bail, Judicial Appointments, Etc. (Scotland) Act 2000, the Convention Rights (Compliance) (Scotland) Act 2001, new legal aid regulations, and through changes in practice. This is in contrast to the situation in England and Wales where there have been fewer obvious pre-emptive attempts, through the legislature or by means of executive action, to respond to developments in Strasbourg case law. It is likely that the positive manner in which the Scottish Executive and Parliament have addressed possible inconsistencies with the Convention through legislative reform has prevented certain judicial determinations of violation of Convention rights.

6.17 The legislation described above was designed to address perceived conflicts between the Convention and laws and policies which pre-dated devolution. However, Convention violations could arise from new policies and this raises the issue of human rights proofing in policy development generally. Several elements of the devolution scheme in effect require human rights proofing of policy. The Presiding Officer of the Scottish Parliament must state an opinion on the competence of any Bill, the Minister in charge of a government Bill must state that it is in his or her opinion within competence, and there is the possibility of referring a Bill to the Privy Council before it is enacted to determine whether it is within competence. These are clearly important safeguards but they do not amount to a comprehensive system as they apply only to devolved matters, and do not apply to policy developments which require only subordinate legislation or do not require new legislation at all. Nor, of course, can all plausible Convention challenges that might arise after enactment be anticipated in policy development.

6.18 The preceding paragraphs have considered the effect of the human rights legislation on the substance of laws and policies. Another way of looking at the impact on government of the human rights legislation is to ask what kind of response a finding by the courts of a Convention violation requires in terms of the hierarchy of legal norms. Many successful cases will have had little wider impact. For example, a finding of undue delay in bringing a case to trial may be based on facts peculiar to that example and have no significance for any other case. Conversely, a successful challenge may require a change to an existing practice or procedure, or a change in policy without requiring a change in the law. If a change in the law is required that may need to be a development of the common law, a change in accepted interpretation of legislation, amendment or repeal of subordinate legislation, or even amendment or repeal of primary legislation. The last possibility is the most significant in constitutional terms, bearing in mind the perennial debate over the legitimacy of courts using human rights guarantees to invalidate the enactments of elected legislatures.

6.19 This is a more pressing issue in Scotland than it is in England given that the Scotland Act requires provisions of Acts of the Scottish Parliament which conflict with human rights to be treated as invalid, whereas it is not possible to invalidate Acts of the UK Parliament, ⁹⁹ although the superior courts may make a declaration of incompatibility. Three Acts of the Scottish Parliament have been subject to challenges to their competence: the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, the Protection of Wild Mammals (Scotland) Act 2002 and the Convention Rights (Compliance) (Scotland) Act 2001. None of these challenges has been successful, although in the third case the challenge was only repelled because the Privy Council adopted a different interpretation of the legislation from that of the High Court. So, it appears that the ultimate weapon of the courts - the invalidation of primary legislation - has not yet been wielded.

6.20 Nor have the courts made any declarations of incompatibility in relation to UK statutes in Scottish cases. However, the unsuccessful claim of a violation of Article 6 in Brown v Stott points the way to the seemingly paradoxical possibility that an Act of the UK Parliament can effectively be nullified, despite the terms of the Human Rights Act and the underlying constitutional principle of the sovereignty of Parliament. Section 172 of the Road Traffic Act 1988 makes it an offence to refuse to say who was driving a motor vehicle at a time when an offence had been committed. This power is essential in practice to the prosecution of many motoring offences because, without the admission of the owner of the vehicle, it would often be impossible for the police and prosecutor to prove who was driving the vehicle when the offence was committed. As noted above, the Privy Council reversed the finding of the High Court that this violated Article 6. However, had the challenge succeeded, section 172 would have become a dead letter in Scotland. This is because any step in the prosecution process is an act of the Lord Advocate and covered by section 57(2) of the Scotland Act: a finding in favour of Brown would have made it impossible for any future prosecution to be mounted on the basis of section 172.

6.21 Although it has not yet arisen, this is an important issue for the future. Provisions of Acts of the UK Parliament which depend for their effective enforcement on action by members of the Scottish Executive may be rendered nugatory by a finding that enforcement by the Executive is incompatible with a Convention right.

The approach of the judges

6.22 Finally, we considered the effects of the human rights legislation on the courts and their performance in applying it, which is a complex undertaking. In many cases arguments based on the Convention were made alongside arguments based upon existing legal principles of Scots or even Community law. For example, the interest in procedural fairness is protected both by Article 6 and by the principles of natural justice. It was not always clear in such cases whether or not the Convention arguments made a difference to the outcome. There are several examples of courts explicitly disposing of cases on 'domestic' grounds alone, but the inclusion of a Convention rights argument may have fortified or influenced this conclusion.

6.23 One obvious question, given how broadly stated are many of the provisions of the Convention, is whether the Scottish courts are deciding cases consistently with the Strasbourg case law which has helped to clarify the meaning of the Convention rights. In Chapters Three and Four we examined the extent to which the decisions of the Scottish courts are compatible with Strasbourg case law. Our conclusion is that in general the Scottish courts have been deciding cases consistently with the Strasbourg case law. However, there are several cases, such as Brown v Stott, in which it is arguable that the Scottish courts have repelled challenges where the European Court would have found a violation. Conversely, there are examples of the courts apparently applying a 'higher' standard then the Strasbourg court would, such as the cases which extend Article 6 protection to immigration appeals. But, looking at the post-devolution case law as a whole, it is impossible to say that the Scottish courts, in developing a domestic human rights jurisprudence, are breaking free of the Strasbourg moorings either by being much more or much less willing than the Strasbourg Court to find that Convention rights have been infringed.

6.24 In short, the introduction of human rights legislation in Scotland appears to have had significant but not dramatic impacts on the courts, the legal profession, public policy and the work of public bodies. Whether the experience of human rights legislation to date should be regarded as encouraging or disappointing is a contentious question, and not one that we would seek to settle. However, we hope that our report will help to facilitate a more informed debate to take place on that and other issues, such as the role and functions of the Scottish Human Rights Commission.

THE FUTURE

6.25 It is important to note that our report relates to the early years of human rights legislation and there may be important developments yet to come. We noted in Chapter Three a number of matters which have not yet come before the Scottish courts, although they have given rise to litigation in England and Wales or are prominent in Strasbourg case law. In addition to those specific examples, there would appear to be few (if any) cases which stress the importance of the nature of positive obligations imposed on state parties by the Convention, the vast majority of cases being challenges to actions and decisions of public authorities. Litigants in Scotland have not yet exploited the possibility of suing the state for failure to act where there is a positive obligation, for example, failing to ensure the effective prosecution of certain crimes in violation of victims' rights under Articles 2 and 8 (some cases of homicide, assault, and sexual offences), whether by failing to prosecute at all or excessive delay in prosecution. This may be of particular concern in cases of assaults upon young people.

6.26 There may also be changes in the approach of public bodies to the 'internalisation' of human rights norms. In that regard, our research does suggest one specific issue that needs to be addressed in the future: the process, as opposed to the substance, of decision-making by public bodies (including professional disciplinary tribunals). In areas as diverse as determination of child care arrangements, licensing and freedom of public protest, challenges suggest that the Strasbourg requirements are not being met. Whilst the Strasbourg court will view the decision-making process as a whole (including any appeal or application for judicial review) in deciding whether Article 6 has been breached and allow initial defects to be cured by review or appeal, it may be doubted whether it is appropriate to take that approach within this jurisdiction. It would be better to improve the standards of initial decision-making to ensure that procedures are fair in all the circumstances, and that reasons are given for decisions, particularly where they affect Convention rights.

6.27 Although it was not part of our research to assess the future role of a Scottish Human Rights Commission, it is clear that the creation of such a body might have important effects on the operation of human rights legislation, depending in part on its statutory powers. Currently, the preferred approach of the Scottish Executive is that the Commission should be able to assist the court by intervening in appropriate cases, but only in civil matters in the Court of Session at appeal stage (and in judicial review cases at first instance where a human rights issue has arisen), but should not become or represent any party to a case. ¹⁰⁰ Whatever its precise powers one would expect the Commission to encourage the Scottish Executive to take pre-emptive action to address possible infringements of Convention rights without waiting for litigation, and to take an active role in persuading public bodies to internalise human rights norms.

6.28 If the Scottish Executive, or indeed anyone else, is to continue to monitor the effects of the human rights legislation then it will be important to have reliable data. It would, therefore, in principle, be desirable to continue to collect data on cases raising human rights issues, although as we indicated in Chapter Five, there are significant practical difficulties in achieving this aim.

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