Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

4  The Human Rights Act 1998 (HRA 1998)

Before the HRA 1998, the rights enshrined in the ECHR were not directly enforceable in the Scottish courts or other courts in the UK. They were technically part of international law. Individuals wishing to seek protection from an alleged breach of the ECHR were required to exhaust all domestic remedies before petitioning the ECtHR in Strasbourg.

The HRA 1998 enables individuals to use UK domestic courts to challenge the government and its protection of ECHR rights. It does not change the ability of individuals to make claims against the UK in Strasbourg. It was hoped that enabling access would allow individuals to save time and money as the road to Strasbourg was typically very long and expensive. It was further argued that adjudication by UK courts would provide a more ‘British’ view of rights and how UK society understood rights.

The HRA 1998 applies to public bodies, these include parliaments, courts, government, local councils. What constitutes a public body is not defined in the Act and so is open to interpretation. Some private bodies who are carrying out ‘public’ functions have been found to be within the definition of public body, for example, private care homes with council-funded residents. Public bodies must act in a way which is compatible with the rights set out in the ECHR and listed in Schedule 1. Not all ECHR rights are listed in Schedule 1 (for example it excludes Article 13 which covers the right to an effective remedy).

The HRA 1998 impacts in a number of ways:

  • all legislation must be interpreted so that it is compatible with ECHR rights
  • the HRA 1998 makes it unlawful for a public body to act incompatibly with ECHR rights and allows for a case to be brought in the Scottish courts or tribunals if it does so
  • the Scottish courts and tribunals (in fact all UK courts and tribunals) must take account of Convention rights in all cases that come before them.

The Scottish Parliament scrutinises proposed legislation for compliance with the main provisions of the ECHR before the legislation is passed. Compatibility with ECHR rights is seen as important and forms part of the legislative competence of the Scottish Parliament. If there is no compatibility, there is no competence and the judiciary can declare that legislation invalid.

Things differ for the UK Parliament. Section 19 of the HRA 1998 states that all new legislation must include a statement of compatibility with the rights set out in the ECHR. If it is not compatible, that incompatibility is recognised. In the case of the UK Parliament a declaration of incompatibility does not automatically invalidate that legislation. The courts do not have the ability to overturn the legislation. The courts have more limited power and cannot invalidate legislation, they can only refer it back to the UK Parliament.

Activity 3 The HRA 1998

(Allow 15 minutes)

The purpose of this activity is to provide you with an opportunity for reading an extract from the HRA 1998. The Act and its consequences have been widely reported and discussed. Here you will be looking at the source of those reports – the actual legislation.

Read the extracts of the Act below this activity, then summarise the provisions it contains in your own words.

Comment

The ability to read, explain and summarise an original source is a very important skill. When reports or summaries are made they may not always reflect the actual meaning or intention of the original. Reading original sources is a particularly important skill for lawyers, who have to implement laws or create rules to ensure that laws are complied with. An example of a summary of the provisions of the HRA 1998 contained in the extract could have been as follows:

The key provisions of the HRA 1998 are:

  • Section 2: requiring courts and tribunals to take the cases decided under ECHR into account when deciding an issue which has arisen in connection with the rights contained within the ECHR.
  • Section 3: requiring courts to interpret existing and future legislation in a way that is compatible with the rights contained in the ECHR.
  • Section 4: giving the higher courts (for example the UK Supreme Court, the High Court of Justiciary or the Court of Session) the power to make a declaration of incompatibility and award a remedy where they decide that a statute is incompatible with the Articles contained in the ECHR. (Note: there is an expectation that incompatible Acts will be amended through the legislative process.)
  • Section 6(1): making it unlawful for any public authority to act or fail to act in any way that is incompatible with the rights contained in the ECHR.
  • Section 6(3): the term ‘public authority’ includes courts, tribunals, the police, immigration authorities and local and central government. This means that in addition to consulting relevant national law, public authorities need also to be aware of the rights set out in the ECHR.

Box 4a Extract from the HRA 1998

2    Interpretation of Convention rights.

  • (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
    • (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
    • (b) opinion of the Commission given in a report adopted under Article 31 of the Convention,
    • (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
    • (d) decision of the Committee of Ministers taken under Article 46 of the Convention,
  • whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
  • (2) Evidence of any judgment, decision, declaration or opinion of which account may have to be taken under this section is to be given in proceedings before any court or tribunal in such manner as may be provided by rules.
  • (3) In this section “rules” means rules of court or, in the case of proceedings before a tribunal, rules made for the purposes of this section—
    • (a) by F1. . . [F2the Lord Chancellor or] the Secretary of State, in relation to any proceedings outside Scotland;
    • (b) by the Secretary of State, in relation to proceedings in Scotland; or
    • (c) by a Northern Ireland department, in relation to proceedings before a tribunal in Northern Ireland—

        (i) which deals with transferred matters; and

        (ii) for which no rules made under paragraph (a) are in force.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F1  Words in s. 2(3)(a) repealed (19.8.2003) by The Secretary of State for Constitutional Affairs Order 2003 (S. I. 2003/1887), art. 9, Sch. 2 para. 10(2)

F2  Words in s. 2(3)(a) inserted (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (S.I. 2005/3429), art. 8, Sch. para. 3

Modifications etc. (not altering text)

C1  S. 2(3)(a): functions of the Secretary of State to be exercisable concurrently with the Lord Chancellor (12.1.2006) by The Transfer of Functions (Lord Chancellor and Secretary of State) Order 2005 (S.I. 2005/3429), art. 3(2) (with arts. 4, 5)

Box 4b Extract from the HRA 1998

3    Interpretation of legislation.

  • (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
  • (2) This section—
    • (a) applies to primary legislation and subordinate legislation whenever enacted;
    • (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
    • (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

Box 4c Extract from the HRA 1998

4    Declaration of incompatibility.

  • (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
  • (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
  • (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
  • (4) If the court is satisfied—
    • (a) that the provision is incompatible with a Convention right, and
    • (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
  •    it may make a declaration of that incompatibility.
  • (5) In this section “court” means—
  •   [F1 (a) the Supreme Court;]
    • (b) the Judicial Committee of the Privy Council;
    • (c) the [F2Court Martial Appeal Court] ;
    • (d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;
    • (e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal.
  •   [F3 (f) the Court of Protection, in any matter being dealt with by the President of the Family Division, the [F4Chancellor of the High Court] or a puisne judge of the High Court.]
  • (6) A declaration under this section (“a declaration of incompatibility”)—
    • (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
    • (b) is not binding on the parties to the proceedings in which it is made.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F1  S. 4(5)(a) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 66(2); S.I. 2009/1604, art. 2(d)

F2  Words in s. 4(5)(c) substituted (28.3.2009 for certain purposes and 31.10.2009 otherwise) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 156; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F3  S. 4(5)(f) inserted (1.10.2007) by Mental Capacity Act 2005 (c. 9), ss. 67(1), 68(1)-(3), Sch. 6 para. 43 (with ss. 27, 28, 29, 62); S.I. 2007/1897, art. 2(1)(c)(d)

F4  Words in s. 4(5)(f) substituted (1.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 14 para. 5(5); S.I. 2013/2200, art. 3(g)

Box 4d Extract from the HRA 1998

5    Right of Crown to intervene.

  • (1) Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court.
  • (2) In any case to which subsection (1) applies—
    • (a) a Minister of the Crown (or a person nominated by him),
    • (b) a member of the Scottish Executive,
    • (c) a Northern Ireland Minister,
    • (d) a Northern Ireland department,
  •    is entitled, on giving notice in accordance with rules of court, to be joined as a party to the proceedings.
  • (3) Notice under subsection (2) may be given at any time during the proceedings.
  • (4) A person who has been made a party to criminal proceedings (other than in Scotland) as the result of a notice under subsection (2) may, with leave, appeal to the [F1Supreme Court] against any declaration of incompatibility made in the proceedings.
  • (5) In subsection (4)—

         “criminal proceedings” includes all proceedings before the [F2Court Martial Appeal Court]; and

         “leave” means leave granted by the court making the declaration of incompatibility or by the [F3Supreme Court]

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F1  Words in s. 5(4) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 66(3); S.I. 2009/1604, art. 2(d)

F2  Words in s. 5(5) substituted (28.3.2009 for certain purposes and 31.10.2009 otherwise) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 157; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F3  Words in s. 5(5) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 66(3); S.I. 2009/1604, art. 2(d)

Box 4e Extract from the HRA 1998

6     Acts of public authorities.

  • (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
  • (2) Subsection (1) does not apply to an act if—
    • (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
    • (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
  • (3) In this section “public authority” includes—
    • (a) a court or tribunal, and
    • (b) any person certain of whose functions are functions of a public nature,
  •    but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
  • (4) F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  • (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
  • (6) “An act” includes a failure to act but does not include a failure to—
    • (a) introduce in, or lay before, Parliament a proposal for legislation; or
    • (b) make any primary legislation or remedial order.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F1  S. 6(4) repealed (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 146, 148, Sch. 9 para. 66(4), Sch. 18 Pt. 5; S.I. 2009/1604, art. 2(d)(f)

Modifications etc. (not altering text)

C1  S. 6 excluded (5.3.2015) by Infrastructure Act 2015 (c. 7), ss. 8(3)(b), 57(1); S.I. 2015/481, reg. 2(a)

C2  S. 6(1) applied (2.10.2000) by 1999 c. 33, ss. 65(2), 170(4); S.I. 2000/2444, art. 2, Sch. 1 (subject to transitional provisions in arts. 3, 4, Sch. 2)

C3  S. 6(3)(b) modified (1.12.2008 with exception in art. 2(2) of commencing S.I.) by Health and Social Care Act 2008 (c. 14), ss. 145(1)-(4), 170 (with s. 145(5)); S.I. 2008/2994, art. 2(1)

C4  S. 6(3)(b) applied (1.4.2015) by Care Act 2014 (c. 23), s. 73(2)(3)127; S.I. 2015/993, art. 2(r) (with transitional provisions in S.I. 2015/995)

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