Human Rights in Scotland

Human Rights Act 1998

The Human Rights Act has not been brought into force and a commencement date has yet to be fixed. However implementation is not expected before the year 2000. The Act will apply throughout the United Kingdom. Its main provisions are as follows: all courts and tribunals will be required to interpret Westminster legislation in a way which is compatible with Convention rights insofar as it is possible to do so; if, nevertheless, the Court of Session or the High Court find that a provision of a Westminster Act is incompatible with Convention rights, they will be able to make a declaration of incompatibility. Unlike Acts of the Scottish Parliament, the courts will not be able to strike down provisions in Westminster legislation and a declaration of incompatibility will not affect the validity of the provisions in question. This reflects the sovereignty of the Westminster Parliament. However the Human Rights Act provides a 'fast track' procedure for Westminster to amend legislation where a court has made a declaration of incompatibility, and the expectation is that in practice incompatible legislation would be amended either by a Bill or, in exceptional cases, via the fast track process; the courts will, however, be able to quash incompatible Westminster subordinate legislation, unless its parent statute means that its provisions would inevitably contravene Convention rights; it will be unlawful for "public authorities" to act in a way which is incompatible with Convention rights.

What are 'public authorities' for the purposes of the Human Rights Act?

The Act does not contain a list or a comprehensive definition of "public authorities". However it indicates that they include: courts and tribunals; and any person some of whose functions are functions of a public nature. However the Houses of Parliament are specifically excluded, and acts of a private nature cannot be challenged on Convention grounds even if they are carried out by a public authority.

This means that individuals can bring proceedings against a public authority when they believe it has infringed their rights under the Convention; and it also allows individuals to rely on Convention rights as a defence in any proceedings brought against them by a public authority. However it will not generally be possible for Convention rights to be invoked or relied upon in proceedings between individuals.

Examples of public authorities include Government Departments, local authorities, the police, the armed forces and private contractors which exercise functions of a public nature. The Scottish Parliament and the Scottish Executive will also be public authorities for the purposes of the Human Rights Act, although by the time it comes into force they will of course already be required to comply with Convention rights by virtue of the Scotland Act.