Human Rights in Scotland

The European Convention on Human Rights

The European Convention on Human Rights was drawn up in 1950 and ratified by the United Kingdom in 1951. 40 European countries are now party to the Convention, and are required to give effect to the rights and freedoms which it sets out. The Convention rights, which will be binding on the Scottish Parliament and the Scottish Executive under the Scotland Act - and which will also be binding on public authorities under the Human Rights Act when it comes into force - are set out in full at the end of this booklet.

The Convention rights

The Convention rights which apply under the Scotland Act and the Human Rights Act can be summarised as follows: the right to life (Article 2) freedom from torture and inhuman or degrading treatment or punishment (Article 3) freedom from slavery and forced or compulsory labour (Article 4) the right to liberty and security of person (Article 5) the right to a fair and public trial within a reasonable time (Article 6) freedom from retrospective criminal penalties and no punishment without law (Article 7) the right to respect for private and family life, home and correspondence (Article 8) freedom of thought, conscience and religion (Article 9) freedom of expression (Article 10) freedom of assembly and association (Article 11) the right to marry and to found a family (Article 12) prohibition of discrimination in the enjoyment of Convention rights (Article 14) the right to peaceful enjoyment of possessions (Article 1, Protocol 1) the right to education (Article 2, Protocol 1) the right to free elections (Article 3, Protocol 1) the right not to be subjected to the death penalty (Protocol 6)

The Convention recognises that there is a balance to be struck between the general interests of society and the protection of the individual's rights. This balancing exercise is fundamental to the way in which the European Court of Human Rights has applied and interpreted the Convention.

With that in mind, the Convention permits limitations to be placed on many of the rights to enable States to secure important objectives which are necessary in a democratic society. Depending on the circumstances, these can include national security or public safety, the protection of the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others. Some rights can be suspended in time of war or other public emergency threatening the life of the nation (although not the right to life, nor the prohibitions on torture, slavery and retrospective penalties).

The rights and freedoms set out in the Convention cannot be properly understood without reference to the substantial body of case-law which the Strasbourg institutions have developed since 1950. Even then, the European Court of Human Rights has emphasised that the Convention is a living document and must be interpreted in the light of changing attitudes and values in society generally.

Enforcing Convention rights

The European Convention is unusual amongst international Conventions in having enforcement mechanisms including a court. Since 1966, British citizens have had the right to apply to the European Commission of Human Rights if they feel that their rights under the Convention have been infringed by the State. If the Commission found their application admissible and meritorious, it could refer the case to the Court for a judgment. From November 1998, the Commission ceased to exist and applications are now made directly to the Court. The Strasbourg Court is not an appeal court, in the sense that it cannot overturn a judgment of a domestic court. However, it can award "just satisfaction" where it feels this to be necessary, which can include the award of costs and modest damages, although success before the Court is sometimes considered to be reparation enough for an applicant. Where the Court finds that a State is in breach of the Convention, it may be required to change its law in order to rectify the breach.

In practice, however, going to Strasbourg can be a time-consuming and expensive process. An applicant must first exhaust all legal remedies which are available in the domestic courts - which includes exercising whatever rights of appeal are available - before applying to the Court.

The right to apply to the Strasbourg Court will continue to be available after the Scotland Act and the Human Rights Act are in force. But the key difference is that in future it will be possible to enforce Convention rights in proceedings before domestic courts in the first instance.