Human Rights in the Scottish Courts
| Author | Tom Mullen,Jim Murdoch,Sarah Craig,Alan Miller |
| Date | 01 March 2005 |
| Published date | 01 March 2005 |
| DOI | http://doi.org/10.1111/j.1467-6478.2005.319_1.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 1, MARCH 2005
ISSN: 0263-323X, pp. 148±68
Human Rights in the Scottish Courts
Tom Mullen,* Jim Murdoch,* Alan Miller,**
and Sarah Craig***
This article looks at the use made of the human rights legislation in the
Scottish courts since the devolution of legislative and executive power
to Scotland, based on research undertaken in all the ordinary courts,
but excluding tribunals. It concludes that the incorporation of the
Convention via the human rights legislation has had significant effects
within the Scottish court system and on policy development without
amounting to a major upheaval.
INTRODUCTION
This article presents an overview of the use made of the human rights
legislation in the Scottish courts since the devolution of legislative and
executive power to Scotland, May±July 1999, and offers some further
comments on the impact of that legislation in Scotland. Throughout, the
phrase `human rights legislation' refers to the Human Rights Act and to
related provisions of the Scotland Act which are discussed below. It draws
on research funded and published by the Scottish Executive.
1
The research
covered the period from May 1999 to August 2003 and covered cases in all
the ordinary courts (the District Court, sheriff court and High Court for
criminal matters and the sheriff court and Court of Session for civil matters)
but not cases heard by tribunals. Its scope was also restricted to the European
Convention on Human Rights (`the Convention') and did not consider other
148
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Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* School of Law, University of Glasgow, Stair Building, 5±8 The Square,
Glasgow G12 8QQ, Scotland
** Law School, University of Strathclyde, Stenhouse Building, 173
Cathedral Street, Glasgow G4 0RQ, Scotland, and Director of McGrigors
Rights
*** Dept. of Accounting, Finance and Law, University of Stirling, Stirling
FK9 4LA, Scotland
1 P. Greenhill, T. Mullen, J. Murdoch, S. Craig, and A. Miller, The Use of Human
Rights Legislation in the Scottish Courts (2004).
international human rights instruments to which the United Kingdom is a
party.
It is important to begin by explaining the differences in the legal
framework for the protection of human rights in Scotland as compared to the
rest of the United Kingdom. Until shortly before the enactment of the Human
Rights Act 1998, the Scottish courts were even less responsive to arguments
based on the Convention than the courts in the rest of the United Kingdom.
In Kaur v. Lord Advocate,
2
Lord Ross appeared to suggest that the Conven-
tion could not be referred to even as an aid to interpretation of a statute.
However, just in time for the Human Rights Act, in T, Petitioner,
3
the Inner
House of the Court of Session adopted a position essentially the same as that
in English and Welsh law, namely, that the courts should presume that the
United Kingdom Parliament intended to legislate in conformity with the
Convention so that, where legislation was ambiguous, an interpretation
compatible with the Convention should be preferred.
The Human Rights Act 1998 applies in Scotland in the same way as it
does in the rest of the United Kingdom so, in general, any plausible
argument that Convention rights have been infringed can be made in terms
of the Human Rights Act. The differences arise from the fact that there are
also provisions protective of human rights in the Scotland Act 1998. These
provisions came into effect on 20 May 1999 and 1 July 1999 so that litigants
in the Scottish courts were able to rely on an enhanced status for Convention
rights significantly earlier than those litigating in England and Wales.
However, what is of more significance in the long run is that the protection
given to the Convention rights by the Scotland Act goes further than that
provided by the Human Rights Act. Section 29 of the Scotland Act makes
clear that the Scottish Parliament has no power to legislate incompatibly
with the Convention rights or with Community law
4
and the courts have
power, therefore, to invalidate provisions of Acts of the Scottish Parliament.
Section 57(2) of the Scotland Act states that a member of the Scottish
Executive has no power to make any subordinate legislation, or to do any
other act so far as incompatible with any of the Convention rights or with
Community Law. This is broadly equivalent to section 6 of the Human Rights
Act which states that it is unlawful for a public authority to act in a way which
is incompatible with a Convention right, although it has a narrower scope in
that it applies only to the Scottish Executive and not to public bodies
generally. However, it goes further than section 6 of the Human Rights Act in
that there is no general proviso, as there is to section 6, excusing acts which
are required to be done by primary legislation. There is instead a specific
proviso which states that the Lord Advocate benefits from the proviso to
149
2Kaur v. Lord Advocate 1980 S.C. 319.
4 There are other restrictions on legislative competence which need not concern us
here.
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