Convention rights and principles

The human rights set out in the European Convention on Human Rights are incorporated into the law of Scotland through the Human Rights Act and the Scotland Act.

Absolute, qualified and limited rights

It is important to understand that there are different types of rights in the Convention. In particular, there are absolute rights and qualified rights, and some rights are limited.

Some rights are absolute, in particular the right to life and the right not to be subjected to torture or to inhuman or degrading treatment or punishment. In other words, there are no circumstances when a public authority is entitled to subject someone to inhuman or degrading treatment.

Some rights can be limited, for example there are certain defined limited circumstances when you can legitimately be deprived of your right to liberty.

Some human rights are qualified, which means they can be restricted in some circumstances and within limits. These rights are written so that the first part of the Article sets out the right that is to be protected, while the second part establishes whether a public authority can legitimately restrict that right in order to protect the wider public interest.

Qualified rights include:

• The right to respect for private and family life, home and correspondence.

• The right to freedom of thought, conscience and religion.

• The right to freedom of expression.

• The right to freedom of assembly and association.

• The right to protection of property.

To consider whether a restriction to a qualified right is justified, consideration must be given to the following questions:

• Is there a legal basis for the restriction of the right?

• Is there a legitimate aim or justification for the restriction, such as the protection of other people’s human rights?

• Is the action proportionate - is it the minimum necessary restriction of the right?

Convention rights create positive as well as negative obligations

Human rights are traditionally negative obligations on a state to refrain from human rights violations. But increasingly Articles are interpreted to require states and public authorities to take action to secure the effective enjoyment of a fundamental right. States and public authorities have a positive duty to provide the resources to protect human rights, eg states have a negative duty not to kill people to ensure the right to life, but also a positive duty to protect those whose lives might be at risk.