Human rights campaigners call for action to tackle barriers to public interest litigation

A coalition of human rights campaigners have come together to call for action to tackle barriers to public interest court action in Scotland.

With public interest litigation relatively rare in Scotland compared to the rest of the UK, a group of campaigners and NGOs have warned that court action can be an expensive and intimidating process, and that more should be done to address the barriers to challenging human rights abuses in court.

Describing public interest litigation as “an essential tool in keeping public decision-making in check, in guaranteeing that human and environmental rights are protected and embedded in our society, and in providing access to justice to those whose voice might otherwise not be heard”, the report found it is rarely used as a tool by non-governmental organisations.

The groups, which include Clan Childlaw, the Human Rights Consortium Scotland, Amnesty International, Friends of the Earth Scotland, Shelter Scotland, JustRight Scotland and Rape Crisis Scotland, warned that poor access to information about court cases, limitations to who can take a case to court, short time limits for taking cases and inhibitive costs and financial risk all acted as a disincentive to raising human rights cases.

Naomi McAuliffe, programme director for Amnesty International in Scotland, said: “Whether on the extradition of those accused of crimes against humanity, mass surveillance by states, or access to safe and legal healthcare for women in Northern Ireland, sometimes the only option left for justice and redress is through the courts.

“This year is the 20th anniversary of the Human Rights Act and its important people know that this legislation enables them to take the government, a local authority or other public bodies to court for infringing their rights.

“But going to court can be an expensive and intimidating process and more needs to be done to address the barriers to individuals and organisations taking cases on the everyday human rights abuses happening in Scotland.”

There were 343 judicial reviews initiated in Scotland in 2016-17, far fewer per capita than in England and Wales and Northern Ireland, with the vast majority, 262 cases, relating to immigration.

But the number of housing judicial reviews went from five in 2008/09 to 17 in 2016/17.

The report says: “The Human Rights Act 1998 has had a significant impact on Scots law and in Scottish courts, but its potential to be used by NGOs to drive change has not yet been fully exploited.

“It remains unusual for organisations to support individuals to seek judicial review on human rights grounds, or to intervene in judicial review proceedings to raise arguments relating to breaches of convention rights, though high profile cases demonstrate the impact a human rights-based intervention can have.”

It recommends reviewing the legal enforcement powers of the Scottish Human Rights Commission to enable it to take human rights cases in its own name.

It said public interest litigation should be embedded in any new laws and policy recommendations around the European Convention on Human Rights and incorporating international human rights treaties into Scots law.

It also suggests introducing a presumption that court fees will be waived for registered charities and not-for-profit organisations and community groups in public interest cases.

The groups called for action to ensure that time limits are not an undue barrier to public interest litigation, including through doing more to raise awareness of their existence among potential litigants.

Mhairi Snowden, coordinator of the Human Rights Consortium Scotland, said: “Public interest litigation is relatively rare in Scotland. Organisations in Scotland do not often go to court to press for human rights protections to be enforced but it is much more common elsewhere in the UK.

“However we know that raising human rights law in court is vital and an essential part of a flourishing human rights culture and society.

by Liam Kirkaldy

Communities, Housing & Planning

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“We want human rights used in every possible way to make sure that they are taken seriously, and that people in Scotland are treated with dignity and respect.”