« Previous | Contents | Next »
Listen
THE USE OF HUMAN RIGHTS LEGISLATION IN THE SCOTTISH COURTS
CHAPTER ONE: INTRODUCTION
BACKGROUND
1.1 This report describes and analyses the use made of human rights legislation in the Scottish courts since the devolution of legislative and executive power to Scotland in May 1999. The expression 'the human rights legislation' means throughout this report the Human Rights Act 1998 and the Scotland Act 1998. This chapter explains the background to the research. The Human Rights Act 1998 was enacted in order to incorporate into UK law the European Convention on Human Rights and Fundamental Freedoms 1950 ('the Convention'). The primary function of the Scotland Act 1998 was to set up a system of devolved government for Scotland, but it also included important provisions relating to the protection of the rights guaranteed by the Convention ('Convention rights'). It is necessary to read both Acts in order to understand the status of Convention rights in Scots law. 1 The research covered only the use of these two Acts and the Convention. It did not attempt to examine the use of human rights arguments based on other international instruments and statutes that implement them.
1.2 Before describing the effects of this legislation it is appropriate to describe the Convention itself. The European Convention on Human Rights is an international treaty which guarantees certain individual rights and liberties, and provides remedies for their violation. It was prepared by the Council of Europe, adopted on 3 November 1950, ratified by the UK in 1951 and entered into force in 1953. The Convention guarantees a number of specific rights, mainly civil and political rather than social and economic rights. Those that have been accepted by the United Kingdom are:
Rights in the original text of the Convention
Article 2 the right to life
Article 3 prohibition of torture and inhuman or degrading treatment or punishment
Article 4 prohibition of slavery, servitude and forced labour
Article 5 right to liberty and security of the person
Article 6 right to a fair trial (criminal and civil)
Article 7 prohibition of retrospective criminal punishment
Article 8 right to respect for private and family life
Article 9 freedom of thought, conscience and religion
Article 10 freedom of expression
Article 11 freedom of assembly and association
Article 12 right to marry and found a family
Article 13 right to an effective national remedy for violation of Convention rights
Article 14 prohibition of discrimination
Rights added by subsequent protocols
Protocol 1, Article 1 the right to peaceful enjoyment of possessions
Protocol 1, Article 2 the right to education
Protocol 1, Article 3 the right to free elections
Protocol 6 the abolition of the death penalty in times of peace
Protocol 13 the abolition of the death penalty in all circumstances
1.3 Other rights added by subsequent protocols such as the right to freedom of movement have not been accepted as treaty obligations by the United Kingdom. It is only the rights currently accepted as treaty obligations (above) that are protected by the Human Rights Act and the Scotland Act.
1.4 Some rights, such as the prohibition of torture and inhuman or degrading treatment or punishment in Article 3, and the prohibition of slavery and servitude (but not forced labour) in Article 4 are expressed in absolute unqualified terms. Others come with qualifications attached, for example, each of the rights protected by Articles 8 to 11 may be subject to interference on similar, although not identical, grounds which include, national security, public safety, the protection of health or morals, and the protection of the rights and freedoms of others. Most of the Articles are subject to derogations in times of emergency.
1.5 The Convention provided both for enforcement by state parties and by individuals through the right of individuals to petition which was recognised by the UK in 1966. The exercise of this right led to a large number of rulings by the European Court of Human Rights that the United Kingdom had acted in violation of Convention rights. 2 The high number of applications made to the Convention authorities and the high number of rulings against the United Kingdom was partly a function of the limited impact of the Convention in domestic law which meant that the UK courts could not in many cases provide a remedy for violation of a Convention right.
1.6 The principal purpose of the Human Rights Act was to broaden the range of situations in which the domestic courts could give remedies for the violation of Convention rights, but without going so far as to give the courts power to review the validity of Acts of Parliament. The key provisions are sections 3 and 6. Section 3 states: 'So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.' This provides a very strong principle of interpretation which should minimise the risk of legislation being found in violation of Convention rights. 3 Where it is impossible to give primary legislation a meaning which is compatible with Convention rights the superior courts may make a declaration of incompatibility under section 4. Such a declaration has no effect on the validity of the provision concerned but it may trigger a fast-track procedure for amendment or repeal of the legislation under section 10.
1.7 Section 6 states: 'It is unlawful for a public authority to act in a way which is incompatible with a Convention right.' In principle, this provision covers all actions and decisions of public authorities whether or not referable to some specific statutory power. There is a proviso that the action will not be unlawful if, because of the terms of primary legislation, the authority could not have acted differently, but this will only rarely apply given that most statutory powers confer significant discretion on decision-makers. There has been some uncertainty over the scope of application of section 6. Subsection 3 states that courts and tribunals are public bodies for this purpose which means that they ought not to make decisions which violate Convention rights, although the precise effect of this aspect of section 6 has yet to be fully clarified. Subsection 3 also states that the term "public authority" includes "any person certain of whose functions are functions of a public nature". Despite the existence of this provision, the distinction in general terms between public and private authorities and public and private functions has also been an area of difficulty. 4
1.8 Sections 7 and 8 empower the courts to give remedies for violation of Convention rights. Section 2 requires the courts, in considering questions of Convention rights, to take account of the decisions of the Convention authorities ('the Strasbourg case law'). This provision clearly does not make the decisions of the Strasbourg authorities binding on the UK courts so it is possible that our Courts may arrive at interpretations of Convention rights which differ from those adopted by the European Court of Human Rights.
1.9 The Human Rights Act applies throughout the United Kingdom and has allowed claims of violations of human rights to be made in the Scottish courts where they have jurisdiction since 2 October 2000. The Scotland Act provides additional protection for Convention rights and goes beyond the Human Rights Act in two ways. First, the human rights provisions of the Scotland Act entered into force earlier than the Human Rights Act and allowed claims concerning executive acts to be made from 20 May 1999 (the date on which prosecution functions were devolved to the Lord Advocate) and claims concerning Acts of the Scottish Parliament to be made from 1 July 1999 (the date on which legislative power was devolved to the Parliament).
1.10 Second, and in the long term more important, the Scotland Act goes further than the Human Rights Act in protecting Convention rights. Section 29(2)(d) provides that an Act of the Scottish Parliament is outside its competence if it is incompatible with the Convention rights. Therefore, although the courts cannot invalidate Acts of the UK Parliament, they can invalidate Acts of the Scottish Parliament. The Scotland Act also gives the courts more power over Executive action. Section 57(2) states that it is unlawful for a member of the Scottish Executive to make subordinate legislation or to do any other act incompatible with Convention rights. This is broadly equivalent to section 6 of the Human Rights Act although it has a narrower scope in that it does not apply to public bodies generally. It goes further than section 6 because there is no general proviso excusing acts required to be done by primary legislation. There is only a specific proviso applying to actions of the Lord Advocate, so that statutory authority is not a defence to claims of Convention rights violations made against other members of the Scottish Executive.
1.11 The other human rights provisions of the Scotland Act are sections 100 (which deals with bringing of proceedings for violation of Convention rights), section 101 (which deals with the interpretation of Acts of the Scottish Parliament, and is in this context broadly equivalent to section 3 of the Human Rights Act) and section 98. Section 98 together with section 6 treats any claim of violation of Convention rights by the Scottish Executive, and any claim that an Act of the Scottish Parliament is ultra vires by reason of incompatibility with Convention rights, as a 'devolution issue' and subject to special procedures. Either the Lord Advocate or the Advocate General for Scotland may raise proceedings to determine a devolution issue. Any other person raising a devolution issue must intimate this to both these law officers who may then intervene in the proceedings. Lower courts may refer such issues to higher courts, and the superior courts may refer them to the Privy Council.
1.12 It can be seen from this brief review of the legislation that the arrangements for the protection and enforcement of Convention rights in Scotland are significantly different from those for England and Wales, both in terms of substance and procedure. To summarise: many claims of human rights violations will raise issues under both the Human Rights Act and the Scotland Act; where the Scotland Act does apply it will allow remedies in some cases for which remedies could not be given under the Human Rights Act; and special procedures will apply to many human rights cases in the Scottish courts. The introduction of the human rights legislation generated enormous interest in political and legal circles, and rapidly spawned a substantial literature. Before the entry into force of the legislation conflicting views were expressed on its likely effects, although the dominant view was that it would have a major impact on the courts, and on government. One area of concern was a possible increase in the workload of the courts and the possibility that they might be swamped by human rights claims. Another was that the judges might be politicised. 5 More positively, many hoped that the Human Rights Act would promote a human rights culture within the legal system, government and society. 6 Now after five years experience of the operation of human rights legislation, we are in a position to be able to examine the extent to which the hopes and fears that preceded incorporation of the Convention into domestic law have been realised
AIMS AND OBJECTIVES OF THE RESEARCH
1.13 The stimulus for this research was the desire of the Scottish Executive to assess the impact of the human rights legislation since devolution, as no other means exist of uncovering this. The specific objectives set by the Scottish Executive for the project were to:
- collate data about civil and criminal cases in the Scottish courts since May 1999 which raise human rights issues either under the Human Rights Act 1998 or the Scotland Act 1998, and to incorporate the data in a database
- estimate the volume of human rights cases being brought in Scotland
- analyse how the human rights legislation is being used
- analyse trends and key developments in human rights case law
- analyse other factors relevant to the wider context of the topic
- make recommendations on the feasibility and operation of a nation-wide database that could include tracking of cases.
It was only possible to include a limited range of factors under the fifth objective - analysis of other factors relevant to the wider context of the topic - for example, assessing the extent to which the legislation had promoted the development of a human rights culture was not one of the research objectives, although some comments relevant to this issue are included in chapter 6.
1.14 There are a number of purposes which might underlie these objectives, and the research could contribute to some degree towards an assessment of:
- the impact of the legislation on the business of the courts, government and the legal profession
- the take up of Convention rights by persons
- the extent to which Convention rights are respected in practice.
It is important to note that the research, concentrating as it did on the courts, could make only a limited contribution towards each of these underlying purposes and to achieve these purposes fully would require other, complementary research.
RESEARCH METHODS AND DATA SOURCES
Methods
1.15 Realising the aims and objectives of the research, particularly the first two, presented substantial methodological difficulties which are discussed below and in more detail in the Appendix. In summary, the methods used were:
- collation of details of reported and unreported cases
- creation of a searchable Access database for this information
- quantitative analysis of data
- qualitative interpretation of the data
- interviews with Scottish Court Service staff.
Reported cases
1.16 We examined hard copy law reports, commercial databases and the Scottish Court Service Website in order to identify and analyse all reported cases raising human rights issues under the Convention since devolution. Substantial information about each case was then entered in a database which was used for further analysis. The fields in the database included the parties to the case, the court in which the case was heard, the procedure under which the case was brought, details of the human rights argument including the Convention (article and aspect of domestic law concerned), and the outcome including remedies sought and awarded. This aspect of the method was unproblematic and we are confident that we have identified all reported cases raising human rights issues under the Convention up to July 2003.
Unreported cases
1.17 It was necessary to examine unreported cases in order to get a fuller picture of the use of human rights legislation than could be obtained from reported cases, and in order to estimate the volume of cases being brought nationally. As might be expected, finding unreported human rights cases was a far harder task than finding reported cases. For criminal cases a short cut was available. Following cases such as Starrs v Ruxton7 and Brown v Stott,8 it became clear that any claim of a violation of Convention rights in the context of a criminal prosecution would be treated as raising a devolution issue, because of the position of the Lord Advocate as both head of the public prosecution system and a member of the Scottish Executive. The practical effect has been that any defence to, or objection to, the initiation or continuation of a prosecution on human rights grounds has had to be intimated to the Lord Advocate under section 98 of, and Schedule 6 to, the Scotland Act. The Crown Office has been recording such intimations since May 1999 and, therefore, has a record of all criminal cases raising human rights issues since executive functions were devolved. We were given access to the Crown Office database which enabled us to ascertain precisely the number of criminal cases raising human rights issues and gave us limited additional information, although the nature and details of this were not consistent across cases.
1.18 Many human rights arguments in civil cases will not raise devolution issues so there is no equivalent procedurally generated short cut, and the Scottish Court Service itself has not been making a contemporaneous record of human rights cases since devolution. Therefore, the only way to collect data about unreported civil cases and to estimate the volume of civil cases raising human rights issues would have been to attempt to gather information from court records. There were two difficulties with this approach, the first being the limited nature of court records and their purpose, the second being that of the scale of the exercise and the resources it would have required.
1.19 As to the first, the amount of information recorded for any case varies according to the court, the procedure and the history of the case, with the result that there might well be a significant number of cases in which a human rights argument is made but not recorded. To give an example, in summary cause proceedings in the sheriff court the summons and other papers are returned to the parties after the proceedings are concluded. If the sheriff has issued a reasoned opinion the court will have a copy of that. However, if there has been no written opinion, for example, because the case has settled, the records kept by the court will be very brief and may not record the fact that one or other party had raised a human rights argument.
1.20 As to the second, since human rights issues could conceivably arise in any court and under any procedure, the only sure way of arriving at a reliable estimate of the number of human rights cases in any given period would be to examine a large enough sample of records from all civil courts covering all civil procedures. This is what we would have liked to have done, in principle, but the resources available for the research fell far short of what would have been necessary to review a large enough sample of records. Indeed the resources required for such an exercise would have exceeded anything that could reasonably be expected for research of this nature. The researchers, therefore, decided to sample a limited range of records from both the Court of Session and two sheriff courts as described in more detail in the Appendix.
1.21 As a result of the limitations of the data gathered we were not able to realise fully the objectives of the research, in particular, to estimate the volume of civil cases raising human rights issues being brought nationally, and conclusions on some further points have had to be tentative or heavily qualified.
Analysis of the Data
1.22 Both the reported and the unreported cases were subject to quantitative analysis including analysis of numbers and subject matters of cases, types of proceedings and outcomes.The reported cases were subject to qualitative analysis assessing their doctrinal significance and their impact on Scots law and public policy.
Interviews
1.23 The purpose of interviewing court staff was primarily to further the second aim stated above, assessing the feasibility of, and making recommendations for, a nation-wide monitoring system that includes tracking of human rights cases. We conducted interviews with staff working in the High Court of Justiciary, Court of Session, and two Sheriff Courts. We interviewed six staff in all. The interviews were semi-structured interviews designed to gather information about the working practices of the court staff in each court, the extent to which information about human rights arguments were recorded, actual or potential difficulties that impeded the recording of information about human rights arguments and their views on the implementation of a nation-wide monitoring system for human rights cases.
THE STRUCTURE OF THE REPORT
1.24 Chapter Two provides a primarily quantitative analysis of human rights cases in the Scottish courts discussing the number of civil and criminal cases, the forms of procedure used, their subject matter and outcomes. Chapter Three analyses the doctrinal significance of the reported cases decided by the Scottish courts over the period of the research, the material being organised according to the structure of the Convention. Chapter Four assesses the policy implications of these cases in terms of the areas of Scots law and public policy affected, and then goes on to discuss the approach of the judiciary to arguments based on Convention rights. Chapter Five discusses the feasibility of introducing a system for monitoring human rights cases in the courts, and Chapter Six provides some conclusions and recommendations.
« Previous | Contents | Next »