Introduction to the human rights legal framework in Scotland

In Scotland, human rights are protected by the European Convention on Human Rights, the UK Human Rights Act and by the Scotland Act. There are a range of international human rights treaties and while these cannot be enforced directly in the Scottish courts, these international treaties can be helpful in interpreting and clarifying the scope of justiciable rights. The international treaties also place obligations on the state to respect, protect and fulfil human rights.

The Human Rights Act

The Human Rights Act places certain obligations on public authorities. In particular, it is unlawful for a public authority to act in a way which is incompatible with a Convention right unless it is prevented from doing so by an Act of Parliament. Public authorities include all bodies with public functions including courts and tribunals.

If an individual believes that their human rights have been violated they can pursue a claim in the relevant court. This is because the Human Rights Act allows people to rely on the rights and freedoms set out in the European Convention on Human Rights directly in the Scottish courts, and (in certain circumstances) to obtain remedies for Convention violations in the domestic courts, rather than taking the case to European Court of Human Rights (Strasbourg). The Human Rights Act means that courts and tribunals must take into account judgments of the European Court of Human Rights  and that all Scottish and British legislation must be read and given effect, as far as possible, in a way which is compatible with the European Convention on Human Rights. 

The Scotland Act

Because of the terms of the Scotland Act, the Scottish Parliament is precluded from passing legislation which is incompatible with Convention rights and that extends to the actions of the Scottish Government and Scottish Ministers. Any actions which breach Convention Rights will be invalid and can be challenged in the courts.