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Law and change: Scottish legal heroes
Law and change: Scottish legal heroes

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6.1.2 The Human Rights Act 1998

The Human Rights Act 1998 significantly increased the relevance of the ECHR to lawmakers’ interpretation of existing law in the UK and the Scottish courts (and other UK courts). The Human Rights Act 1998 makes it unlawful for a public body to act incompatibly with ECHR rights. It allows for a case to be brought in a UK court or tribunal against the public body if it acts incompatibly with ECHR rights.

Both the Scottish and UK Parliaments must now scrutinise proposed legislation for compliance with the main provisions of the ECHR. The Scottish Parliament cannot pass legislation which is incompatible with Convention rights. If it tries to do so, the legislation can be challenged as outwith legislative competence and therefore void (it is not law).

In the case of UK Parliamentary legislation which is regarded as incompatible with ECHR rights, courts do not have the right to overturn the legislation although they can make a declaration of incompatibility. It is for the UK Parliament to amend the legislation to bring it into line with ECHR rights.

Finally, Scottish courts and tribunals (in fact all UK courts and tribunals) must take account of Convention rights in all cases that come before them. This means, for example, that they must develop the common law in a way which is compatible with Convention rights.