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

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Legal skills and debates in Scotland

4.1  Your human rights

Research into the use of the HRA 1998 in Scotland suggests that basic human rights points have been raised in only a tiny fraction of cases brought before the courts. The decisions in these cases have had an important but moderate impact on the courts, public policy, private practice and the legal system. The fair trial provisions in Article 6 have been raised in a number of criminal justice cases and have led to a number of changes, for example, the statutory abolition of temporary sheriffs, the provision of free legal representation to children appearing before a children’s panel. The Scottish Government has also pre-empted a number of potential challenges through legislative reform.

You should now watch the following video produced by the Equality and Human Rights Commission, the national equality body. The Commission is a public body established by the Equality Act 2006. It is independent of government and, like the Scottish Human Rights Commission, has been awarded an ‘A’ status as a National Human Rights Institution by the UN.

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Transcript: Video 3 Your human rights

Human rights in the UK go back hundreds of years. They're part of our history. But after the horrors of the Second World War, people across the world were determined that those atrocities must never happen again. Since then, the UK has played a leading role in ensuring our human rights are protected by law, both at home and around the world.
Today, these rights help protect our private and family life and allow us to enjoy a free press. They give us the right to form partnerships with and love whoever we want to. We have the right to demonstrate peacefully and the right to free speech. In fact, we have the right to education; the right to a fair trial; the right to vote in free and fair elections; the protection of law; the right to freedom of thought, conscience, and religion; and ultimately, the right to life.
Human rights are the very fabric of our society. They protect our way of life in the United Kingdom. They guarantee our freedom and allow us to progress through our lives with fairness and dignity. So much of what we do in our everyday lives depends on our human rights, and we don't always realise it. When we are ill and as we grow older, we all have the right to care that is dignified and respectful.
These rights surround us and protect us, our families, and our friends all through our lives. Human rights belong to all of us without discrimination, whoever we are from birth until death. To find out more about your human rights and how they're protected by the law, visit
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Box 5 The Equality and Human Rights Commission

Our job is to help make Britain fairer. We do this by safeguarding and enforcing the laws that protect people’s rights to fairness, dignity and respect.

We aim to be an expert and authoritative organisation that is a centre of excellence for evidence, analysis and equality and human rights law. We also aspire to be an essential point of contact for policy makers, public bodies and business.

We use our unique powers to challenge discrimination, promote equality of opportunity and protect human rights. We work with other organisations and individuals to achieve our aims, but are ready to take tough action against those who abuse the rights of others.

Our vision

We live in a country with a long history of upholding people’s rights, valuing diversity and challenging intolerance. The Commission seeks to maintain and strengthen this heritage, while identifying and tackling areas where there is still unfair discrimination or where human rights are not being respected.

From the The Equality and Human Rights Commission  website May 31 2017

You should now listen to this audio which explores common human rights myths.

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Transcript: Audio 1 Common human rights myths

The Human Rights Act 1998 forms part of the UK’s constitution. It is designed to ensure that everyone is treated equally, with fairness, dignity and respect. It places duties on public bodies to act in compliance with human rights and enables public bodies to be challenged if they fail to do so.
Whilst there’s a general agreement that human rights are fundamental and that everyone in society should be treated equally, there is disagreement about the human rights act. Some politicians have called for it to be repealed, others for it to be extended. Politicians in the media often highlight human rights cases but it’s rare they do so in a clear, unbiased way. As a result, knowledge about the act and its role has become surrounded by myths and misunderstanding.
So let’s start with the one that ‘human rights laws have been imposed on the UK by Europe’. This is not true, for a number of reasons. The Human Rights Act enables rights from the European Convention on Human Rights to be applied by UK citizens in UK courts. The European convention was largely drafted by British lawyers after the Second World War. The Magna Carta had an influence on the drafting process, and Winston Churchill was very influential in making it happen.
The Convention was created by the Council of Europe in 1950, a body set up to promote democracy, human rights and the rule of law in Europe. The Human Rights Act was passed by the UK parliament in 1998, with support from all the main political parties. It was by choice. The Act also has nothing to do with the UK’s membership of the European Union.
Another myth: that people have a right to anything they want. Again, this is not the case. The Act doesn’t protect an endless list of rights; it protects fifteen fundamental rights and freedoms. These include the right to life, the right to marry and start a family. The Act does not, for example, create a right to live in the UK or to receive benefits. Then there’s the myth the Human Rights Act has cost taxpayers millions. Not so. The Act has cut the cost of taking human rights cases to court. Before it was introduced, people had to go to the Court of Human Rights in Strasbourg to enforce their rights. British courts now hear these cases. This is more efficient and costs less.
The Act also encourages public authorities like schools, councils and hospitals to provide better, fairer services. Its influence means that thousands of people have been able to protect their rights without the expense of going to court.
What about the myth that British courts and bound by the European Court of Human Rights in Strasbourg? Again, no. The Act is clear that British courts are not required to follow the decisions of the European Court of Human Rights without question. British courts have to take account of them. Judges can, and often do, depart from Strasbourg case law to take account of the United Kingdom’s own laws and traditions.
There’s another myth that the Human Rights Act gives too much power to judges who are unelected. Not so. The Act was voted for by elected politicians. The legislation was debated and passed by the UK parliament. It was not created by judges. The Act gives judges the power to protect citizens rights against abuse by government and other public authorities. Acts of the Scottish parliament have to comply with the Human Rights Act. In relation to the UK parliament, if one of the higher courts finds that UK legislation breaches someone’s human rights, the court cannot overturn it. It is referred to the UK parliament for a decision. It’s also not true that the European Court of Human Rights generally rules against the UK government. Actually, many cases brought against the UK are declared inadmissible – about ninety seven per cent of them. Of all the claims against the UK only about three per cent make it to full hearings. And out of these, only about one per cent succeed.
Between 1999 and 2000 around 11,800 cases against the UK were judicially allocated. Of these, around 8,810 were struck out, and 390 declared admissible for hearing.
Areas where cases have been brought include the right to respect for private and family life; prohibition of discrimination; the right to security and liberty; the right to a fair trial and freedom of expression.
Some people think that human rights are not for ordinary people – they protect wrongdoers. Again, this isn’t do. The Act protects everyone’s human rights. For example, the Act has been used to test boundaries in relation to medical treatment and end-of-life decisions. It has assisted individuals to ensure that full and proper investigations are carried out. For example, it assisted the families of those killed in the Hillsborough disaster, in their quest to expose the truth. The Act requires the police to investigate serious offenses like murder, terrorism and rape. It can also be used to hold the police responsible if they fail to carry out these investigations properly.
And then there’s the myth that human rights laws have resulted in some absurd decisions. The report of absurd decisions in the media often present only part of the story. Human rights exist to protect fundamental rights. Those rights are not unlimited. Debates over the Act and its role will continue but I hope that you’ve found this overview of some of the most common misunderstandings and myths helpful.
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