Human Rights and the Law of Leases
| Date | 01 May 2013 |
| DOI | 10.3366/elr.2013.0154 |
| Published date | 01 May 2013 |
| Pages | 184-209 |
| Author | Frankie McCarthy |
The European Convention on Human Rights and Fundamental Freedoms is the key instrument underpinning the protection of rights in Scots law. The Convention was signed in November 1950 and ratified by the United Kingdom in March 1951. Since 1966, the UK government has recognised the jurisdiction of the European Court of Human Rights in Strasbourg, allowing parties to petition the court directly in respect of contended rights violations. Convention rights became an integral part of domestic law following the introduction of the Human Rights Act 1998.
A detailed account of the history and current place of Convention rights in Scots law can be found in R Reed and J Murdoch,
The Act entrenches the Convention using various mechanisms, three of which are of particular relevance to the law of leases. First, it provides that primary and subordinate legislation
s 3(1).
Subordinate legislation includes Acts of the Scottish Parliament.s 21.
s 4(5)(d).
s 4(2) and (4).
s 10 and Sch 2.
Scotland Act 1998 s 29(1). The constitutional and procedural implications of a finding that Scottish legislation is not Convention compliant are currently under discussion: see
Secondly, an act of a public authority which is not compatible with Convention rights will be unlawful,
s 6(1).
unless the authority is itself bound by incompatible primary legislation.s 6(2).
s 6(6).
s 6(3) and (5).
The relevant procedure is set out in schedule 6 to the Scotland Act 1998.
Finally, the Human Rights Act sets out that a domestic court or tribunal faced with a Convention question must take into account the jurisprudence of the European Court of Human Rights wherever relevant.
Although a variety of Convention rights have formed the bases of challenges in connection with the law of leases, two articles feature with such frequency that their terms bear repeating in full. Article 8 provides:
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
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