Human Rights Bill for Scotland: discussion paper

2.6 Remedies

Under proposals for the Bill, Scottish courts and tribunals will play an integral role in the multi-institutional approach to improving access to justice, where the requirements set out in the Bill are not being met.

2.6.1 Jurisdiction and time limits

It is intended that individuals can use the core Bill duties as the basis for raising or defending any civil proceedings where the other party is a duty-bearer. Where an organisation wants to obtain a legal ruling on whether or not relevant duties in the Bill have been met in a given situation, they can do so by raising proceedings in any civil court or tribunal which has jurisdiction to grant the remedy sought; generally, we envisage that this will be via judicial review proceedings, which is subject to the litigant demonstrating ‘sufficient interest’^[42] in the matter. We propose that damages for a breach of a relevant duty by a public authority may be awarded only by a court or tribunal which has power to award damages in civil proceedings. This is the same approach taken to the award of damages in the HRA 1998 and the UNCRC Act 2024 proceedings.

In terms of time limits, we propose to include the same default time limit for judicial remedies as the HRA 1998 and the UNCRC Act 2024, namely that an action must be brought within 1 year of the act complained of. As in the other frameworks, this general provision is subject to any stricter time limits imposed by relevant rules of procedure, including the current three-month time limit for raising judicial review proceedings. We propose that the Bill replicates the UNCRC Act 2024 provision on time limits, requiring the courts to disregard any part of the applicable time limit which fell when the individual making a claim was under 18. This recognises that children can be rights-holders in terms of the rights in this Bill, and so the rationale for making special provision in recognition of their developing capacity applies equally in this framework as to the UNCRC Act 2024. This means that the time limit for someone under the age of 18 bringing a claim is calculated from the date on which they reach the age of 18.

2.6.2 Standing

‘Standing’ refers to who has the legal right to raise an issue with the courts for judicial review.

The 2023 consultation indicated an open position on the question of standing, noting that courts presently apply different tests in different situations, notably the ‘victim’ test for cases brought under the HRA 1998 and the ‘sufficient interest’ test for public law challenges brought by way of judicial review.

A majority of consultation respondents expressed support for the ‘sufficient interest’ test as a proposed approach to standing for civil proceedings on the basis that it was a broader test, more easily satisfied than the narrower ‘victim’ test. We consider that this well-established legal test strikes the correct balance, enabling civil society organisations to pursue strategic litigation in connection with the Bill, while also supporting and empowering judges to make best use of the courts’ limited time and resource.

Given that the sufficient interest test already applies to judicial review and has been developed and explained in authoritative case law,^[43] we do not propose making any explicit provision to apply the test to judicial review cases brought in connection with the Bill, since that is already the default provision for such proceedings.

The present proposals do not include specific provision for groups or organisations to raise, defend or intervene in proceedings. This is because, as explained earlier in this section, we anticipate that they will be able to do so to the existing extent that they can raise judicial review proceedings. While we recognise the potential benefit of specific provision regarding such public interest litigation, in terms of making it easier for civil society organisations (for example) to seek judicial determinations on whether Bill duties had been met, that would be out of step with the position in the other two rights incorporation frameworks.^[44] Taking this into account, and after careful consideration, we are not minded to make special provision for organisations to enter proceedings in lower courts and tribunals since proceedings at that level are not well-equipped to engage with the systemic and structural matters which consideration of Bill duties inevitably requires. We believe the most effective approach is to view the provision of effective remedies as a whole, within a context where multiple institutions will be empowered to provide oversight and appropriate remedies for rights fulfilment, with innovative proposals that will significantly strengthen non-judicial access to remedies.

2.6.3 Types of remedy

Having considered a range of evidence on remedial measures for incorporated economic, social and cultural rights we see potential for Scottish courts and tribunals to utilise the suite of remedial measures currently provided for in rules of procedure in new and creative ways in order to (for example) secure non-repetition and structural change.

As a starting point for this work, we propose to construct the duties in such a way as to provide a textual basis for courts or tribunals to develop and deliver structural remedies, specifically in relation to alleged breaches of the duty to progressively realise ICESCR rights.

We propose placing a requirement on public authorities that in situations where a court or tribunal has found that a public authority has breached the requirement to progressively realise the ICESCR core requirements, that body is required to take steps to remedy the breach. This remedial obligation provides a basis for courts to consider granting orders – either individually or in combination – which identify the steps required of the public authority. Because this provision is about the consequences of judicial remedies for public authorities, it is natural that courts and tribunals will be mindful of it when deciding on those remedies. This reflects the ‘forward looking’ nature of the Bill’s proposed Compliance Duty, encouraging the use of judicial remedies in that context. This approach encourages the nuanced and creative deployment of powers such as ‘specific implement’^[45] and of the SHRC in the role we envisage in supporting courts to design effective remedies (see section 2.11 for a fuller description of this role).

Given that the power to grant particular remedies varies between different courts and tribunals, we propose conferring a power on Scottish Ministers to bring forward regulations conferring additional remedial powers on particular tribunals, if they consider that necessary to ensure that a particular tribunal can provide an appropriate remedy.

2.6.4 Standard of review

When considering whether the duty to progressively realise ICESCR requirements has been met, we propose to create a system that will lead to courts and tribunals applying a structured, multi-factored test drawn from international jurisprudence and best practice. We think this is the best way to ensure that complaints of non-compliance with the duty to progressively realise ICESCR requirements are subject to the appropriate standard of review.

We propose that this test be built into the duty itself, so as to help duty-bearers understand clearly what is expected of them to meet the duty. While only one of the three components of progressive realisation, we consider that non-regression will be a critical aspect of legal challenges brought in relation to the Bill duties and (as set out more fully in discussion of the duty at section 2.3.3). We, therefore, propose that the Bill contains explicit provision regarding potential justifications for a regressive measure or action. The test derives from the work of the relevant UN Treaty body, the Committee on Economic, Social and Cultural Rights, and so is of particular relevance to the requirements of ICESCR. It is intended to create a more structured and rigorous standard than the test of ‘Wednesbury unreasonableness’^[46]. Such provision would require that the justification is:

• reasonable;
• proportionate to the aim of the measure being taken/right being regressed;
• non-discriminatory – as delivered through the Equality Provision;
• temporary;
• does not breach the minimum core; and
• taken after all other potential avenues for action, which did not regress on the right, have been appropriately explored.

A significant number of consultation responses indicated Wednesbury unreasonableness was inadequate for the effective protection of human rights (the ‘Wednesbury unreasonableness’ test is one of a range of tests currently applied by courts when dealing with challenges based on public authorities’ actions).

By, in effect, requiring the courts to weigh a range of relevant factors, this approach resembles the ‘proportionality test’ used to determine lawfulness of interference in qualified ECHR rights under the HRA 1998.^[47] However, given the different nature of the rights in that treaty compared to the rights protected by ICESCR, we do not envisage the existing domestic caselaw on proportionality to be directly transferable to the adjudication of the proposed duties in the Human Rights Bill. That is why we propose building the above series of tests directly into the description of the Compliance Duty under the Bill.

Our proposed approach also seeks to mitigate the risk identified in some of the consultation responses that without sufficient definition and structure, the introduction of a new test could lead to a lengthy period of uncertainty as to how it would be applied by courts. Our proposed approach is also intended to support consistency in the understanding and application of the proposed duties.

Given that we propose for the rights being incorporated from the other international treaties or sources beyond ICESCR (i.e. the GPTs and right to a healthy environment) to be made subject to consideration duties, our proposals make no specific provision for the standard of review to be applied in adjudicating those. Courts are already familiar with duties of this kind (for example, through challenges brought in relation to the PSED) and can draw on a developed body of caselaw in deciding how to engage with legal challenges framed in terms of a failure to consider these particular requirements.

2.6.5 Exclusion of criminal proceedings

It is not our intention that the rights and duties created by the Bill should be considered and applied by courts in the context of criminal proceedings. Taking account of the nature of the rights being incorporated, our proposals here are designed to limit the Bill’s implications for the operation of the criminal justice system to those areas where economic, social and cultural rights are most significant. We recognise that human rights play a crucial role in the criminal justice system, but our proposals aim to reflect important differences between the economic, social and cultural rights to be incorporated by this Bill, as compared with the civil and political rights incorporated via the HRA 1998, the Scotland Act 1998 and the UNCRC Act 2024. Many civil and political rights can be understood as negative obligations on the state, which act as safeguards on the exercise of powers. They have their origins in the prohibition of gross violations like torture and arbitrary detention and impose minimum standards on conditions of detention and the prosecution of crime. For instance, it is generally agreed that if a suspect does not receive a fair trial then the state loses its power to incarcerate them. Noting the principal purposes of this Bill, it would be an unintended and unwanted consequence if accused persons were able to challenge the actions of police, Crown Office or criminal courts and potentially evade justice because their economic, social and cultural rights were not met within the criminal justice system. While we want these criminal justice agencies to participate and contribute to the stronger human rights culture these proposals seek to build, we have ‘carved out’ these duty-bearers from the Bill’s strongest accountability measures to avoid such unintended consequences on the criminal justice system.

2.6.6 Further considerations

We noted that some respondents to the consultation felt that existing remedies were insufficient and there is a need to make these accessible, affordable, timely and effective. It is our intention that, by setting out our thinking here, we can engage further on this point.

Across the breadth of our proposals for remedy, we will undertake further stakeholder engagement including with the judiciary, legal bodies and civil society, amongst others.