Human Rights in Scotland

Scotland Act 1998

The Scotland Act makes specific reference to the European Convention on Human Rights, which has important consequences for the Scottish Administration and for the enforcement of human rights in Scotland: section 29 provides that an Act of the Scottish Parliament may not include provisions which are incompatible with Convention rights, as they are defined in the Human Rights Act; and section 57(2) provides that a member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, which would be incompatible with Convention rights.

Who will be affected?

Everyone working for the Scottish Administration will have to be aware of the effect that the Convention might have on their work. If your job as an administrator has an impact on the rights of individuals, you will need to bear in mind the need to comply with the Convention and the possibility of your decisions, or those of Scottish Ministers acting on your advice, being challenged on Convention grounds. If your job as a policy maker involves drawing up proposals for legislation or advising Scottish Ministers on the exercise of any of their functions, you will have to make sure that in doing so the proposals are not incompatible with Convention rights.

When will all this happen?

The human rights provisions of the Scotland Act will apply to the Scottish Executive and Parliament as soon as they assume their powers under the Act, which for most purposes will be 1 July 1999. In relation to criminal proceedings, it will be possible for an accused to challenge any actions of the prosecution on Convention grounds from 20 May 1999, when the Lord Advocate (who is responsible for the institution and conduct of criminal proceedings in Scotland) will become a member of the Executive.

Scrutiny of Scottish legislation

On or before the introduction of a Bill in the Scottish Parliament, a member of the Scottish Executive must state that in his or her view its provisions would be within the Parliament's legislative competence, which means among other things that it must be compatible with Convention rights. This will require officials and their lawyers to consider the impact of legislative proposals on Convention rights in the drafting process. On or before the introduction of a Bill, the Presiding Officer must also decide whether its provisions would be within the Parliament's competence and state his or her decision.

The Advocate General, the Lord Advocate or the Attorney General will be able to refer the question of whether any provision in a Scottish Bill would be within the Parliament's competence to the Judicial Committee of the Privy Council for a period of up to four weeks after the passing of the Bill, before it receives Royal Assent. Once again, this will include questions about compatibility with Convention rights. If the Judicial Committee decides that the Bill infringes Convention rights, it will be open to the Parliament to reconsider the Bill and amend it to bring it within competence.

The pre-enactment scrutiny procedures are designed to ensure that Acts of the Scottish Parliament do not contain provisions which are incompatible with Convention rights. If, nevertheless, a court or tribunal finds that a provision in an Act of the Scottish Parliament is incompatible with Convention rights, it will be able to strike it down as ultra vires and therefore of no effect.

How can Convention rights be enforced in court?

Questions about the compatibility of a provision in an Act of the Scottish Parliament with Convention rights may be raised in any civil or criminal proceedings and may be dealt with in a number of ways: a lower court or tribunal may decide the question itself or refer it to the Court of Session or (in criminal proceedings) to the High Court; a tribunal from which there is no right of appeal must refer any question of compatibility with Convention rights to the Court of Session; the Court of Session or the High Court (in considering criminal appeals) may decide the question itself or refer it to the Judicial Committee of the Privy Council, provided the question was not referred to it by a lower court or tribunal; an appeal against a decision of the Court of Session or the High Court on a question relating to the Scottish Parliament's legislative competence will lie to the Judicial Committee of the Privy Council, but in the case of criminal appeals only with leave of the High Court or the Judicial Committee itself.

In addition, the Lord Advocate, the Advocate General, or the Attorney General will be able to refer questions of compatibility with Convention rights which arise in court proceedings directly to the Judicial Committee of the Privy Council, or require any court to do so; and also to refer questions of compatibility with Convention rights which are not the subject of court proceedings to the Judicial Committee.

Questions about whether the exercise of a function by a member of the Scottish Executive, or a failure to do so, would be incompatible with Convention rights will be dealt with in exactly the same way. Such questions are most likely to arise in the context of judicial review proceedings or (in relation to actions of the Lord Advocate in his capacity as prosecutor) in criminal proceedings. If a court or tribunal finds that an action by a member of the Scottish Executive is incompatible with Convention rights, it is liable to be struck down.

Where a Scottish court or tribunal finds that a provision in an Act of the Scottish Parliament or subordinate legislation is incompatible with Convention rights, it will be able to make an order removing or limiting any retrospective effect of that decision, or suspending the effect of the decision to enable the Scottish Parliament to remedy the defect.

Questions relating to compatibility with Convention rights, whether in relation to an Act of the Scottish Parliament or an act or failure to act by a member of the Scottish Executive, can only be raised in legal proceedings by a person who claims to be a victim of the incompatible provision, act or omission. The court may in such cases award damages if it considers this necessary to afford "just satisfaction" to the victim, having regard to the principles applied by the European Court of Human Rights.