The Human Rights Act and the British Bill of Rights
The Human Rights Act
The Human Rights Act 1998 came into force in October 2000. It is one of the principal ways that internationally-recognised human rights are given legal effect in the UK.
The Act means that vitally-important safeguards set out in the European Convention on Human Rights (ECHR) are available to everyone. In particular:
- all public organisations, such as the government, councils, hospitals, courts, the police, and other bodies that carry out public functions, must act compatibly with the Convention rights
- individuals can take human rights cases to UK courts in order to obtain an effective remedy. They can also take them to the European Court of Human Rights in Strasbourg, after the national courts have issued a final judgment
In Scotland, human rights protections are also built into the devolution settlement by the Scotland Act 1998. Legislation passed by the Scottish Parliament is not law if it is incompatible with the rights defined in the Human Rights Act. Scottish Government ministers have no power to act in ways that are incompatible with those rights.
The Scottish Government regards the Human Rights Act as one of the most important and successful pieces of legislation ever passed by the UK Parliament. The Act has a 20-year track record of delivering justice and rights for all, including for some of the most vulnerable people in society.
Retaining the Human Rights Act is essential for the protection of human rights in Scotland and across the UK as a whole. The UK must also remain fully committed to the ECHR and to membership of the Council of Europe.
Independent Human Rights Act review
In December 2020, the UK Government established an Independent Human Rights Act Review (IHRAR) panel to consider whether changes should be made to the Human Rights Act.
The IHRAR received responses from a wide range of civil society organisations, academic experts and experienced legal practitioners from across the UK, as well as from the UK’s three National Human Rights Institutions. The overwhelming weight of evidence from these responses demonstrated that the Human Rights Act has been highly successful and effective.
UK Government proposals to replace the Human Rights Act
In December 2021, the UK Government published a consultation document on new proposals to replace the Human Rights Act with a new “Bill of Rights”. The proposals largely ignore the findings of the IHRAR panel and the evidence it received.
In March 2022, we published our response to the UK Government’s consultation paper. This response reiterated that the Scottish Government fundamentally disagrees with the idea that the Human Rights Act should be replaced by a “modern Bill of Rights”.
Our overriding concern is that the strong existing protections delivered by the Human Rights Act and by the UK’s status as a full state party to the European Court of Human Rights will be undermined and eroded. Rather than replacing the Human Rights Act, the UK Government should focus on making rights real for everyone, across the whole of UK society.
In addition, the Human Rights Act is woven directly into the fabric of Scotland’s constitutional settlement. Changes to the existing statute could therefore have potentially significant implications for Scotland’s devolved institutions. The Scottish Government believes that no changes affecting Scotland should be made without the explicit consent of the Scottish Parliament.
We will carefully examine the detail of any legislation brought forward by the UK Government and will consider what further action should be taken in order to safeguard and protect human rights in Scotland.
The Scottish Government’s longstanding support for the Human Rights Act
The Scottish Government has consistently made clear its support for the Human Rights Act in response to UK Government proposals for “reform”. For example, see:
- our response to the UK Government's discussion paper entitled Do we need a UK Bill of Rights? in November 2011
- our response to the UK Government's additional questions about a possible UK Bill of Rights in September 2012
- the First Minister's speech, entitled Protecting human rights, delivered at the Pearce Institute in September 2015
- the First Minister's speech, entitled Putting the justice into social justice: how international human rights can deliver progressive change for Scotland, delivered at an innovation forum hosted by the Scottish Human Rights Commission and Scottish Government in December 2015
- our position statement on Scotland’s performance against key international human rights obligations, published to coincide with the UK’s Universal Periodic Review in April 2017
- the Cabinet Secretary for Social Justice, Housing and Local Government’s speech marking Human Rights Day delivered in the Scottish Parliament in December 2021
- a letter from the Deputy First Minister to the Lord Chancellor in December 2021
- a letter from the Cabinet Secretary for Social Justice, Housing and Local Government to the Convener of the Scottish Parliament’s Equality, Human Rights and Civil Justice Committee in December 2021
- a joint letter from Scottish and Welsh Ministers to the Lord Chancellor in March 2022, following a meeting to discuss the UK Government’s proposals with the Lord Chancellor in February 2022
- an opinion piece from the Minister for Equalities and Older People published in the Scotsman newspaper in March 2022
- a letter from the Minister for Equalities and Older People to the Convener of the Scottish Parliament’s Equality, Human Rights and Civil Justice Committee in March 2022
We will continue to strongly oppose any proposals which would have the effect of altering or undermining the principal legal and constitutional protections which have so successfully safeguarded and advanced human rights throughout the UK over the last two decades.