What difference will the Human Rights Act make?

The Human Rights Act 1998 will come into force on 2nd October of this year1 And although we in Scotland have begun to come to terms with “convention rights” and “devolution issues” the full implications of implementing the Human Rights Act are yet to impinge upon large sections of the legal profession in Scotland and, equally importantly, their clients. This is not intended as a criticism of the profession who have already grasped the significant power of an enforceable bill of rights.2 It is simply a reflection of the further changes in our perceptions of the place of human rights in Scottish legal and political life.

So how will the Human Rights Act differ from the human rights regime which derives from the Scotland Act?

The Scottish Executive are not the only public authority

The most important change will be the range of individuals and bodies who will find themselves obliged to abide by and implement the Convention rights. Under the Scotland Act the only bodies whose powers were limited by reference to the Convention rights are the Scottish Executive 3 and the Scottish Parliament (and in the latter case only in respect of the Parliament’s legislative competence). Under section 6 of the Human Rights Act, however, it will be unlawful for any “public authority” to act in a way that is incompatible with a Convention right.4

The idea of a “public authority” is central to the scheme of the Act, but that phrase is only partially defined as including (but not limited to) a court or tribunal and “any person certain of whose functions are of a public nature”.5 The Act is deliberately open-ended in this respect, and it will be left to the courts to determine who or what is a “public authority” for the purpose of the Act.

Two broad categories of public authority can be identified. On the one hand there are “pure” public authorities - a term which includes all branches of central and local government, the police, customs and the military, as well as the system of public prosecution. On the other hand, there are “hybrid” public authorities - bodies and individuals who perform a public function, irrespective of their legal or non-governmental status. Bodies which are in no sense agencies of central or local government will therefore find that they are to be treated, for certain purposes, as “public authorities” for the purpose of the Human Rights Act. An example which occupied a considerable amount of time during the debates on the Human Rights Bill was that of the Church of Scotland (and other churches). To the extent that a church performs certain public functions, or is given recognition by the state in the discharge of certain functions, it is a “public authority” for the purpose of the Act. So, for example, where a church provides primary or secondary education, it will be treated as a public authority in the discharge of that function.  To the extent that it exercises statutory powers in relation to the legal profession, there is no doubt that the Law Society will also be regarded as a public authority.

An important difference between these two types of public authority is that all acts of “pure” public authorities must be compatible with the Convention rights, whereas it is only in respect of the discharge of its public functions that a hybrid public authority is bound to observe Convention rights. So, for example, local and central government bodies are required to observe Convention rights not merely in the discharge of those functions vis-a-vis the community as a whole, but also with regard to their own internal organisational arrangements.6

The acts of purely private bodies may also engage the responsibility of a public authority in certain circumstances. A great many local authorities in Scotland have partnership arrangements with private bodies, and many contract out work to private firms and companies. These private individuals and organisations will have to ensure that they are aware of the obligations of the public authority when discharging what are, as between themselves and the public authority, private contractual functions.

The definition of a public authority also raises the challenging question of what role Convention rights will play in disputes between private parties. Inevitably there are already different schools of thought on this matter. Richard Buxton (Buxton L.J.) has vigorously argued that the Human Rights Act is, properly, to be confined so far as possible to the sphere of public law.7 Others have argued for a much greater role for Convention rights in private law.8 Whether the Human Rights Act creates new forms of private law rights (such as a general right to privacy, so conspicuously missing from Scots private law) remains to be seen. But there are undoubtedly examples in which the courts, as public authorities, will be called upon to apply convention rights in private law disputes. In cases of domestic violence for example, where interdict is granted excluding one party from the shared home, the court’s order will constitute an interference with the rights guaranteed by article 8(1) of the Convention 9 which, if it is to be upheld, will have to be justified in terms of article 8(2) of the Convention. Where a court awards damages against a newspaper for defamation, that may constitute an interference with freedom of expression under article 10(1) which, again, will be an unlawful act by the court unless it is justified in terms of article 10(2).

All of this means that Convention rights will become binding upon a great many individuals and bodies who are not at first sight anything to do with governmental action or inaction in this country. Many of these affected will be blissfully unaware that they are “public authorities”, or otherwise affected by public authority status of those with whom they have legal relations. Similarly, individuals affected by the actions of a body which at first sight appears to be a private party may discover that they have a remedy under the Human Rights Act because the private body is in fact a public authority. Those engaged in legal practice which in any way touches upon activities carried out by governmental organisations, or on behalf of governmental organisations, would be well-advised to explore carefully this aspect of the Human Rights Act.

The shift away from the criminal courts

A further significant development which may be expected to follow from the implementation of the Human rights Act is a shift of emphasis in human rights litigation. Under the Scotland Act, although there have been notable exceptions,10 the vast majority of human rights cases have concerned matters of criminal law, and predominantly criminal procedure and evidence.11 This was almost inevitable given that the “target” of human rights complaints under the Scotland Act is restricted to the Scottish Executive, and the branch of the executive most exposed to human rights challenges tends to be the system of public prosecution. However, it is reasonable to suppose that the much wider notion of public authority will give rise to challenges across a much wider spectrum of legal practice in Scotland.

A wider spectrum of rights litigation

In parallel with this development, it is also reasonable to expect that the range of Convention rights invoked in legal proceedings will expand. While the rights under article 6 (the right to a fair trial) will possibly continue to represent the largest single category of Convention issues, one can expect that in due course most of the other substantive rights under the Convention will be raised before the courts. Some may not be very frequent. But even infrequently litigated Convention rights raise questions under the law of Scotland. (Is community service compatible with the right not to be required to perform forced or compulsory labour under article 4 of the Convention?12) Other areas of law in which convention rights will become increasingly important include family and child law (principally article 8 13, 9, 14 12, 15 and 14 16); housing (again, article 8, but also article 11 17); planning law (article 6 18 and article 1 of the First Protocol to the Convention 19), health care (article 2 20 and 8 in general and article 5(3) in particular in the case of mental health law and practice), education (article 2 of the First Protocol 21). It should also be borne in mind that in some areas in which there are no immediately applicable substantive Convention rights (especially in the fields of employment and social security which are generally outside the scope of the Convention) that there are often important procedural rights to be taken into consideration. Thus while the right to a non-contributory pension or other social welfare benefit may not be protected by the Convention, in determining eligibility for such a benefit the individual may in some instances be entitled to a fair hearing under article 6.

Greater remedies

So far, again given the nature of the majority of human rights challenges, the remedy sought by those who have raised devolution issues has been the discontinuance of criminal proceedings. That will continue to be an available remedy under the Human Rights Act, but the range of remedies is, necessarily, much wider. Section 7(1) of the Human Rights Act provides that a person who claims that a public authority has acted or proposes to act in a way which is incompatible with a Convention right, may bring proceedings against the authority in the appropriate court or tribunal, or plead the Convention right by way of defence in any legal proceedings.22  The remedies for a human rights violation include any remedy which the court might otherwise be competent to provide.23 Damages may, exceptionally, be awarded for a violation of Convention rights, but only where the court concerned has the power to make an award of damages in civil proceedings.24 Damages will not, therefore, be available in criminal proceedings. Remedies for violation of Convention rights by a court or tribunal are restricted under section 9 of the Act. Proceedings under section 7(1) in respect of a judicial act may only be brought by exercising a right of appeal, by way of a petition for judicial review or “in such other forum as may be prescribed rules”. Damages may, however be awarded, in respect of a judicial act which has resulted in the individual being deprived of his or her liberty in violation of article 5 of the Convention.25

An area which the Act opens up and which has significant potential relates to the positive obligations of public authorities. The idea that certain Convention rights impose upon the state a positive obligation to protect those rights, rather than a an obligation merely to refrain from infringing the rights, is increasingly well-recognised in the case law of the European Court of Human Rights.26 This is reinforced in the Act by section 6 which defines an “act” of a local authority as including a “failure to act”. So where a public authority fails to act, and this results in a violation of a Convention right, the victim of this violation is entitled to a remedy under section 7 of the Act. The case of López-Ostra v Spain 27 is well worth considering in this connection. In that case the applicants successfully argued that a failure on the part of a local authority to take adequate steps, within its powers, to control the noxious impact of an industrial plant within their municipality violated their rights under article 8.

The Act does not, in general, provide a remedy in respect of human rights violations arising before the Act comes into force.28 However, where an individual relies upon a Convention right in legal proceedings by or at the instigation of a public authority, he may do so even though the act of the local authority which it is alleged is incompatible with a Convention right took place before the commencement of the Human Rights Act.

In conclusion

The implementation of the Scotland Act has led to some significant changes in the law of Scotland. Many of these have been portrayed as major political embarrassments for the Executive, and even as embarrassments for the Scots law. No doubt the implementation of the Human Rights Act will lead to further changes in the law, and in the practice of government in Scotland. It is important, however, that these changes are seen as part of a developing human rights culture, rather than alien rules foisted upon Scots law. Human rights are central to the development of our legal system and the legal profession inevitably has a central role in these developments. How well that role is discharged depends on the profession adapting to the changed legal environment which the Human Rights Act will introduce.