The Legislation Podcast

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Today we’re going to be talking about how Human Rights ended up becoming law across Europe and in Scotland.  At the foundation is the European Convention on Human Rights.  That was the brainchild of the Council of Europe.  So what is the Council and why did they create the Convention? 

Those taking part:

• Jenifer Johnston, from the Scottish Human Rights Commission;

• Bruce Adamson, Legal Officer for the Commission.

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BA:     The Council of Europe was set up following the Second World War to develop common democratic principles and to protect the rights of people throughout Europe.  It started with ten members but it now covers 47 different countries and about 800 million people.  ECHR or the European Convention on Human Rights or even to give it its full title, the Convention for the Protection of Human Rights and Fundamental Freedoms is a piece of international law which was developed by the Council of Europe to promote Human Rights.  The Articles and Protocols of the European Convention on Human Rights cover a wide range of issues to the right to life and the prohibition of torture through privacy and family life, education.  In its essence it’s the core rights that we all have.

JJ:       So the convention covers all sorts of things to do with our everyday lives including privacy, family life and education but the Convention is different to other statements of our rights because for the first time, people could act on it.  Bruce tells us how.

BA:     One of the great things about the European Convention on Human Rights is it sets up a judicial mechanism, it sets up a court, the European Court of Human Rights and this is different from a lot of the other conventions and international law, where there are committees to monitor the implementation of them, but there’s not a way for individuals to actually go to a court and get a judgement in their favour.  So the UK ratified the European Convention on Human Rights in 1951 and everyone in the UK has had the right to go to the European Court on Human Rights since 1966.  That means that the rights of individuals to take a case to the European Court is something that we all have and makes it much, much easier for us to look at individual rights and individual circumstances.

JJ:       The Convention allowed people to take action, but it was still difficult and involved a trip to Strasbourg.  In 1998 and the year 2000, that all changed when new laws were passed in the UK.

BA:     One of the problems was that before the Human Rights Act when we had to go directly to the European Court of Human Rights in Strasbourg.  That was quite a complicated process.  It involved a lot of money and a lot of time.  The Human Rights Act has made it possible for us to actually use the Convention rights set out in the European Convention on Human Rights directly in domestic courts.  So it was then possible to make direct challenges to, if your rights were breached, if those rights set out in the convention were breached, you could actually take an action in a court within the UK to have that breach remedied.  It also meant that those issues were highlighted much, much quicker and so decision makers and policy makers, they had to pay much more attention.  The Human Rights Act actually made it unlawful for any public body to act in a way that was incompatible with those Convention rights.  Actually in Scotland we’ve got an additional layer of protection through the Scotland Act which also was passed in 1998.  This places both the Scottish Parliament and the Scottish Government under a legal duty to comply with the terms of the Convention, when they’re exercising their respective powers and functions.  So it’s not just local authorities and public authorities in Scotland, it’s also the Government and the Parliament.

JJ:       So although the Convention was created 60 years ago, it is only now that people are in a position to take direct action in local courts, said Bruce.

BA:     While we’ve had the protections of the European Convention on Human Rights for nearly 60 years, they’ve sometimes been difficult to enforce and sometimes decision makers have been pressured into ignoring their obligations.  These extra checks and balances we’ve now got through the Human Rights Act and the Scotland Act ensure that decisions that are made in Scotland respect people’s Human Rights and this leads to the development of a Human Rights culture and much better decision making.  The ability to take a legal case, a legal action under Convention rights through domestic courts makes it much, much easier for people to ensure that their rights are respected, particularly for vulnerable groups who under the old system found it very, very difficult to get a case all the way to the European Court of Human Rights in Strasbourg.  It’s important that we remember that these are minimum standards, these rights, they are the basic core values that we have as individuals and it’s a benefit for everyone in society that we have better access to remedies for these rights because it leads to better decision making and ensuring that we all get our rights respected.