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THE USE OF HUMAN RIGHTS LEGISLATION IN THE SCOTTISH COURTS
EXECUTIVE SUMMARY
1. The research analysed the uses made of human rights legislation in the Scottish courts since devolution. The relevant legislation was the Scotland Act 1998, the Human Rights Act 1998 (HRA), and the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR). Both the HRA and the Scotland Act have the effect of better incorporating the status of Convention rights into domestic law, broadening the range of situations where the domestic courts can provide remedies for rights violations. The Scotland Act also exceeds the protection of Convention rights afforded by the HRA in two important aspects: it entered into force earlier than the HRA; and, more significantly, it provides that an Act of the Scottish Parliament is outside the competence of the Parliament if incompatible with the ECHR and provides for challenges to actions of the Scottish Executive on human rights grounds.
2. To explore the ways in which the legislation was being used, in terms of arguments based upon the ECHR which had been advanced in supreme and sheriff court cases, the project gathered information about civil and criminal cases between May 1999 and August 2003. The human rights points examined could be central, supportive or incidental to the case.
3. Reported cases were identified from hard copy law publications, websites and databases. Unreported cases were mainly identified from 'devolution minutes', intimations of cases that have raised a human rights issue which must be given to the Lord Advocate and Advocate General under the Scotland Act, and from in-court case-tracking in the supreme courts and two sheriff courts. The retrospective identification of civil cases from court records was a formidable, intensive and complex task as many case categories will not raise devolution issues, and there has been no routine monitoring of human rights arguments in the courts. Uncovering the use of the legislation in unreported cases presented considerable methodological challenges. Due to the different procedures involved, it proved far easier to access the required data for criminal cases, so that information is more comprehensive than for civil cases. The vast majority of cases were citizen-state disputes.
4. Once collated in a database that recorded key features of the case, the data were analysed from quantitative and qualitative angles, with reference to:
- the type of court and case;
- the location of the court where raised;
- the ECHR article referenced;
- trends in post-devolution human rights case law, including comparison of the approaches of the domestic courts and the Strasbourg Court and Commission;
- the impact on areas of law and policy - from both successful and unsuccessful challenges.
5. Quantitative analysis was undertaken in Chapter 2 to examine the prevalence of human rights arguments, the nature of the cases in which they occurred, and the use of specific ECHR articles. Qualitative interpretation of the data allowed the project to identify trends and key developments in the case law, especially where these had relevance to policy, or where they were of doctrinal significance in terms of the interpretation of the law, in Chapters 3 and 4.
6. A principal aim of the research was to examine the feasibility of continued monitoring of the ways in which human rights points are used in court cases. Suggestions from this element of the project are offered in Chapter 5. Currently, there are no mechanisms in place for the systematic collection of such data.
7. Human rights issues under ECHR have become an established category of argument in criminal cases in the Scottish courts. However, in the period studied, although human rights points were raised, at a steady rate, in an average of 150-200 cases per annum, this represents a tiny proportion of all cases brought to Scottish courts (a little over one quarter of one percent). The vast majority of these cases would have proceeded without the inclusion of a Convention rights argument, and arguments were generally raised in defences to prosecution.
8. The data, therefore, clearly disprove concerns raised prior to the implementation of the HRA that the justice system could be engulfed by use of the legislation. The legislation, therefore, had not had major resource implications for the criminal justice system.
9. Almost the full range of Convention rights was being invoked in criminal cases and an anticipated predominance of Article 6 issues of procedural fairness was borne out as the vast majority of arguments cited this. Human rights law was referred to most often in high court trials and least in summary procedure cases in the district court.
10. Comprehensive data on unreported civil cases were not as accessible, so reported sources had to be relied upon. A human rights point featured most often in judicial review cases. The full range of rights was again being deployed, across a wide range of areas of Scots law and public administration. A significant number of the civil cases had been brought by prisoners, many on the single issue of 'slopping out'. Despite there being less complete data for civil cases, comparison of reported figures suggests that the numbers of cases including human rights points may be closely comparable across civil and criminal justice.
11. In reported cases, remedies were more often sought under the Scotland Act than under HRA, reflecting the predominance of criminal cases in the data, which typically invoke the Scotland Act due to the role of the Lord Advocate in prosecution.
12. The qualitative analysis offers some conclusions about the impact of the use of the Scotland Act and the HRA on different areas of public policy and the justice system. Reported cases suggested that, after criminal justice, immigration control was the public policy area, where human rights points were raised most frequently; and there were clusters of cases relating to children and prison conditions. However, a solitary case can have important repercussions for public bodies and policies, a clear example of this being the early abolition of the position of temporary sheriff, following a decision that this was incompatible with Article 6.
13. Most challenges that could have had a significant impact on policy have been unsuccessful. Although a substantial number of human rights cases have succeeded, the developing case law, overall, has not had a major impact on government policies and practices in Scotland. This, however, only refers to changes introduced as a direct consequence of litigation, and not to more indirect impacts on legislation. The Scottish Executive and Scottish Parliament have positively attempted to pre-empt a number of potential challenges through the introduction of legislation.
14. Three Acts of the Scottish Parliament have been subject to challenges as 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 was successful. There was, however, no invalidation of primary legislation in the period studied. Nor had the courts made any declarations of incompatibility in relation to UK statutes in Scottish cases. Nevertheless, there is the possibility that an Act of the UK Parliament could effectively be nullified in Scotland, where it relies for enforcement on actions of members of the Scottish Executive, despite the HRA and the constitutional principle of Parliamentary sovereignty, an important issue for the future.
15. Assessing the effects of human rights legislation on the courts and their performance in applying it is not straightforward. Often ECHR-based arguments are made alongside others based on existing legal principles of Scots or Community law (for instance, procedural fairness is protected by Article 6 and by the principles of natural justice). It was not always clear whether ECHR arguments made a difference to the outcome: where a court explicitly disposes of a case on 'domestic' grounds alone, the inclusion of a Convention rights argument may have fortified or influenced the conclusion.
16. A major question, given the breadth of many ECHR provisions, is whether Scottish courts are deciding cases consistently with Strasbourg case law. In general, the research found that this was the case. However, there were cases 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 applying a higher standard than the Strasbourg court would. To date, post-devolution case law does not suggest that domestic courts are substantially more or less willing than Strasbourg to find that Convention rights have been infringed.
17. The process of data collection for the study and analysis of the data made it possible for some recommendations to be made in relation to how ongoing monitoring of the use of human rights legislation in the Scottish courts might be undertaken. Given the availability of the data required for this kind of research, future monitoring would have to rely heavily on reported cases and intimations of relevant cases in the form of devolution minutes. This would not, however, allow equality of data completeness for civil and criminal, as the former would demand different and more intensive forms of data gathering, requiring considerable resources. Qualitative research would be needed to construct a rounder picture of whether a human rights culture in Scotland has been developing and the role of the Human Rights Act and Scotland Act in fostering one.
18. The findings from this study clearly indicate that the introduction of human rights law has had an important, yet only moderately significant, impact on the courts, public policy and administration, and the legal profession.
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