* * * * *
2. A specifically Scottish Human Rights
2.1 Assuming a need, should there be a specifically
Scottish body? The argument against a specifically Scottish body
starts from the fact that the Human Rights Act 1998 has UK-wide
application. Almost by definition, it might be thought, the incorporated
Convention rights, being fundamental human rights, should have
the same content north and south of the border. The way the 1998
Act works is to limit the freedom of action of "public authorities"
vis-a-vis individual citizens. Public authorities are on the whole
creations of statute. Their functions tend to derive from statutory
provisions which apply UK-wide, or, if from separate provisions
for the component jurisdictions of the UK, from separate provisions
which are closely analogous. The 1998 Act s 3 lays down the test
which judges must apply for Convention-rights-compatibility of
statutory functions. It is not readily conceivable that the same
statute or analogous provisions in different statutes should be
given different meaning and effect on each side of the border.
Harmonisation of judicial interpretation and thus of Convention
rights provision throughout the UK has been secured by constituting
the Judicial Committee of the Privy Council the ultimate court
of referral and appeal for rights-compatibility questions involving
the devolved institutions in Scotland, Wales and Northern Ireland.
Against this background it might be thought that the specialist
anti-discrimination bodies, which also do have UK-wide jurisdiction,
provide the appropriate model for any general human rights commission.
The experience of devolved government suggests that the cost implications
of a single commission for the whole UK would be more easily accepted.
2.2 On the other hand, the Northern Ireland
example affirms that a local rights commission is not inconsistent
with UK constitutional principles and is properly an adjunct to
devolved government within a particular jurisdiction. The distinctive
identity of law and practice in Scotland already finds expression
in the existence of purely Scottish commissions for law reform
and review of criminal convictions. It is arguable that implementation
of fundamental rights in Scotland is bound up with Scots law and
practice in a way which implementation of anti-discrimination
codes is not. In addition the Scotland Act 1998 presents the devolved
institutions with special challenges:
convention rights compatibility is
a pre-condition of Scottish legislative competence; and there
is a special test for the competence of Scottish legislation;.
incompatibility with other, non-incorporated,
international rights obligations can prevent Scottish Bills from
passing into law;.
the devolved institutions can arguably
be requiredsubject to the Scotland Act s 40to fill
gaps in rights provision by amending existing legislation or introducing
new rights-compatible legislation..
Even without postulating different rights for
different parts of the UK, there is scope for variation in detail
of implementation, to suit local needs and conditions, by reference
to the so-called "margin of appreciation". The argument
for a local commission providing expert independent advice may
be supported by reasons of expediency. Has Scotland been well
served by existing specialist commissions and voluntary agencies
which have at best branch-office presence north of the border?
2.3 While considerations of legal policy
can argue for and against a specifically Scottish body, it must
also be correct that a UK Commission and a Scottish Commission
are not mutually exclusive concepts.
3. Relationships with existing bodies.
3.1 Incorporation means that there is now
significant overlap between UK specialist anti-discrimination
codes and Convention rights, most obviously by virtue of the anti-discrimination
provision of Convention Art 14. Other Convention provisions are
increasingly likely to be brought into play in questions of sex,
race and disability discrimination for the reason that discrimination
often involves violation of other protected rights and freedoms.
Indeed the right to non-discrimination in terms of Art 14 can
be expressed as "being secured in the enjoyment of the rights
and freedoms set forth in the Convention . . . without discrimination
on any ground etc". Both the so-called "horizontal effect"
and contractual interaction are predicted to carry Convention
rights into the private sector where specialist commissions already
have jurisdiction. There is a recent Scottish example in the announcement
by Crown Office that Convention rights compliance obligations
will be included in forensic pathology contracts with private
sector suppliers (21 February 2001).
3.2 Further, there is a tendency for piecemeal
anti-discrimination provision of a negative kind to be overtaken
by positive, rights-based, general provision for equal opportunities.
This is evidenced by the free-standing equal opportunities provisions
of the International Covenant on Civil and Political Rights, Art
26, and of draft Protocol 12 of the European Convention itselfsee
Opinion of the European Court of Human Rights adopted 6 December
1999, Doc 8608. At home, the Scotland Act 1998 s 30, Sched 4,
s L2, while reserving the content of existing specialist codes
to Westminster, empowers devolved institutions to encourage equal
opportunities generallyie without being restricted to sex,
race and disability issuesand in this connection to impose
duties on Scottish and cross-border public authorities. The remit
is reflected in the wide brief of the Scottish Parliament Equal
Opportunities Committee. Should there be a new body, the foregoing
factors may argue for such a body to have a broad mandate in relation
to rights generally.
3.3 While it is not suggested that the functions
of existing specialist UK commissions should be subsumed in any
new bodysomething which could not be effected without UK
legislationthere is significant scope for co-operation.
Co-operation already takes place between specialist commissions
in appropriate cases. It is conceived that any new body might
appropriately have a mandate to co-operate with other, UK commissions,
and possibly to act on an agency basis. The remits of all bodies
might require to be reviewed over time.
3.4 The argument for a rights commission
with overarching competence permitting co-operation with existing
bodies is supported by the emergence of a coherent jurisprudence
across all areas of rights law: once the claimant establishes
unequal treatment by comparison, or prima facie derogation from
a positive right, the burden falls on the defending authority
to show objective justification according to relevant criteria.
* * * * *
17 July 2001
61 Scotland Act 1998 s 101; Human Rights Act 1998
s 3. Back
Scotland Act 1998 ss 35, 58. Examples are the provisions of the
European Convention on Human Rights not incorporated by the 1998
Act, the UN Convention on the Rights of the Child, the International
Covenant on Civil and Political Rights. Back
In accordance with the principle of sovereignty of Parliament,
the Human Rights Act s 6 protects Westminster from this sort of
action. The same protection is not extended to the devolved institutions.
The model is established elsewhere eg Vriend v Alberta
, Supreme Court of Canada, 1 SCR 493. In principle this
is correct for legislatures subject to "higher law". Back