Human Rights and Devolution Flashcards
HRA 1998, s6
This applies to Scottish Public authorities, which must act in accordance with Convention rights. Furthermore, the Court of Session and the High Court of Justiciary have powers to make declarations of incompatibility for acts of Westminster Parliament
Are human rights a reserved matter?
Human rights are not a reserved matter which means that Scotland can further build on the human rights protection offered in the HRA 1998. The HRA 1998 acts as a floor, not a ceiling of protection
Examples:
Adult Support and Protection (Scotland) Act 2007, Children and Young People (Scotland) Act 2014, Scottish Commission for Human Rights Act 2006
However, by virtue of the Scotland Act 1998 s29(2)(c) and paragraph 1(2)(f) of Schedule 4, the Scottish Parliament cannot diminish the HRA; acting in violation of these provisions would render any act of the Scottish Parliament, invalid law
Even apart from the HRA 1998, Convention rights are protected in Scotland in the Scotland Act 1998. Therefore, some would argue that there is a dual protection for Convention rights in Scotland
How does the Scotland Act 1998 protect Convention Rights?
(i) ECHR is a limit to the competences of Scottish Parliament and Government. Scotland Act 1998 s29(1) and (2)(d)
(i) The Scottish Parliament does not benefit from a mere declaration of incompatibility where a provision of an ASP violates the ECHR. Much stronger mechanisms are available to ensure the Scottish Parliament complies with the ECHR. A law that contravenes the Convention is invalid law
(iii) Procedural machinery: Scotland Act 1998 s31(1), (2), s 33 refer to a Bill to UKSC, s98 Schedule 9 - Bill can be challenged before Supreme Court if it is believed to be incompatible with HRA; this happens before is be passed or receive royal assent (ss 31 and 33)
SA 1998 s101
Provisions which could be read as outside competence should be read as narrowly as is required for them to be within competence, if such reason is possible
SA 1998 s102
Where any court decides that an ASP is not within the legislative competence of the Parliament, the court may:
(a) Make an order removing or limiting any retrospective effect of the decision
(b) Make an order suspending the effect of the decision for any period and on any conditions to allow the defect to be corrected
Cases where the ASPs were challenged for violating the ECHR
Whaley v Watson, 2000 SC 125:
This case reminds us that courts can strike down ASPs if they are outwith the UPs legislative competences (Quote on page 8)
AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46: The case confirmed that the courts would strike down ASPs for the reason of violating rights
[In both cases above, the impugned provisions in the ASPs were found to be compatible with Convention rights]
Successful cases for challenges to an ASP for incompatibility with the ECHR?
Cameron v Procurator Fiscal [2012] HCJAC 19: a provision of an ASP was found outwith competence for breaching Article 5 ECHR that protects right to liberty and security
Salvesen v Riddell [2012] CSIH 26 and [2013] UKSC 22: a provision of an ASP was found outwith competence for breaching Article 1 Protocol 1 ECHR that protects the right to property
The Christian Institute & Ors. v The Lord Advocate (Scotland) [2016] UKSC 51: the Supreme Court unanimously struck down the Scottish Parliament’s Named Persons scheme (Part 4 of the Children and Young People (Scotland) Act 2014) as insufficiently precise for the purposes of Article 8 ECHR which protects the right to private and family life
What are the time limits to challenge an ASP? Do they apply differently if an ASP is challenged on Convention grounds?
Somerville v Scottish Ministers, 2008 SC (HL) 45:
There is a one-year time bar in section 7(5)(a) HRA for challenges (bringing challenges of violation_ under the HRA. However, the SA 1998 did not explicitly include such a time limit for ‘devolution issues’.
Should a one-year time limit also apply to devolution issues under the SA 1998 for human rights matters?
HoL: the one-year time limit did not apply to the proceedings as drafted because the petitioners’ case was that the acts of the Scottish Ministers were outside the limits of their devolved competence in terms of the Scotland Act - this was ruled in the Somerville case
Based on all this, can we say human rights are better protected in Scotland than they are in the rest of UK?
Parallel operation of the Scotland Act 1998 and the HRA 1998 offers a form of dual protection. The HRA 1998 obliges public authorities, including the Scottish Parliament, and the Scottish Government, to act in a manner that does not contravene ECHR rights.
According to s57 of SA 1998, a member of the Scottish Government ‘has no power’ to act in a way which is incompatible with Convention rights and further, in terms of s54, the exercise of a function by the Scottish Ministers is outside of ‘devolved competence’ to the extent that such exercise of the function breaches Convention rights
How would a potential repeal of the HRA 1998 affect human rights protection in Scotland?
(i) Citizens in Scotland would not be able to bring convention-based actions against UK departments or against other public bodies because Scottish institutions are designated public bodies for the purposes of convention rights by the HRA
(ii) Citizens in Scotland would not be able to argue for convention-based interpretation of UK legislation
(iii) BUT they would still be able to challenged primary or secondary legislation enacted by the devolved institutions under Scotland Act 1998 (s29(2)(d) and s57 of SA 1998) - because s29 and s56 of the SA speak of the ECHR
Would a repeal of the HRA 1998 require the consent of the Scottish Parliament?
Debate between Elliott and Jamieson on page 10
What would it mean for human rights protection in Scotland if the UK withdrew from the ECHR?
(i) An amendment to the SA 1998 would be required if the UK withdrew from the ECHR. This, under the Seal Convention (about the UK obtaining consent of the SP), would require consent of the Scottish Parliament
(ii) A unilateral Bill of Rights applying across the UK would also require consent under the Sewel Convention
What would it mean for human rights protection in Scotland if the UK withdrew from the ECHR?
(i) An amendment to the SA 1998 would be required if the UK withdrew from the ECHR. This, under the Seal Convention (about the UK obtaining consent of the SP), would require consent of the Scottish Parliament
(ii) A unilateral Bill of Rights applying across the UK would also require consent under the Sewel Convention
