Quiz 3: Scotland and Europe: the European Union and Human Rights Law

Quiz 3: Scotland and Europe: the European Union and Human Rights Law

Purpose: Scotland takes its place not only within the United Kingdom, but also within Europe. The law of the European Union, and human rights law coming from the Council of Europe through the European Convention on Human Rights, are both very important. Each of these areas of law restricts the powers of the Scottish Parliament under the Scotland Act 1998.

This quiz is the third of a series. The purpose of each quiz is to inform citizens of all ages, particularly school children and young people, so that citizens are able to make informed choices and participate in the debate on Scotland’s constitutional future leading to the 2014 referendum on independence. The quiz series is part of a project is funded by the Economic and Social Research Council at the University of Edinburgh and managed by Professor Stephen Tierney of the Edinburgh Centre for Constitutional Law.

Additional Resources:

Instructions: Read the following text and answer the multiple choice questions below. For further discussion refer to the research and discussion section after the multiple choice questions.

Human Rights and European Union law under the Scotland Act 1998

In the last quiz we learned about the powers of the Scottish Parliament and the difference between devolved and reserved powers. In this quiz we will learn about the legislative competence of the Scottish Parliament under the Scotland Act 1998 in relation to human rights and European Union (EU) law.

In the last lesson we learned that section 29 of the Scotland Act tells the Scottish Parliament what laws it is allowed to pass. Section 29 states that the Scottish Parliament can pass any law as long as

  • it applies only to Scotland,
  • it does not relate to a reserved matter, and
  • it does not conflict with human rights or EU law

So far we have learned that the Scottish Parliament cannot pass laws that apply outside of Scotland. We also know that the Scottish Parliament cannot pass laws in relation to reserved matters, such as the constitution, defence or foreign affairs. Only the United Kingdom Parliament in London can pass laws in these areas.

Let’s now take a look at what is meant by ‘human rights and EU law’. First of all it might be helpful to remember that Scotland is a devolved part of the UK and that the UK is also a member state of both the European Union and the Council of Europe. You may already be familiar with the European Union. The European Union was created after the Second World War when six states in Western Europe (initially Germany, France, Italy, Belgium, Netherlands and Luxembourg) came together to cooperate over several areas including building a common market, establishing agreements relating to trade and travel for example. The European Union has since grown and now comprises 28 member states including the United Kingdom which joined in 1973. The European Union has its own system of government through institutions such as the European Parliament, Council of Europe, the European Commission and the Court of Justice of the European Union.

The Council of Europe is a separate body from the European Union (which often confuses people in the media!). It was also created after the Second World War. Unlike the European Union which is concerned principally with economic matters, the Council of Europe was tasked with protecting human rights. To this end it created the European Convention of Human Rights. The Council of Europe has 47 Member States, including the United Kingdom which was one of its founding states in 1949. Its institutions include the Secretary General, the Committee of Ministers, the Parliamentary Assembly, the Commissioner for Human Rights and the European Court of Human Rights.

As noted, sometimes confusion arises in relation to the European Union and the Council of Europe, which are separate international organizations. However, it is important to know the differences between the two bodies since different rules and obligations arise from membership of each. All 28 members of the European Union are also members of the Council of Europe. Members of the Council of Europe that are not in the European Union include Russia, Serbia, Albania and Bosnia and Herzegovina.

Human Rights and Scotland

Human rights is an area of law that has developed over many centuries. It concerns protections for the individual and has grown-up largely through the criminal law, protecting citizens from arbitrary arrest, protecting the right to a fair trial etc. This law developed within Scotland. It was not until devolution that European human rights law, created outwith Scotland, started to play a major part in our law.

Devolution was created for Scotland through the Scotland Act 1998 and this changed how human rights are protected in Scotland. The Scotland Act directly refers to the European Convention of Human Rights, created by the Council of Europe. This is usually referred to as the “ECHR”. The ECHR is an instrument that was agreed between many states at the foundation of the Council of Europe in 1950. The purpose of the instrument was to ensure that every person throughout Europe be entitled to live life with a certain level of dignity through the protection of fundamental rights and freedoms. Historically, this came about at a time when states in Europe were emerging from two horrific world wars in which the loss of life of millions of people had resulted in a desire to ensure that the human beings never again faced the atrocities that occurred during these conflicts. Obligations were therefore placed on the states who signed up to the ECHR to ensure that minimum standards were in place within the legal systems of each state in order to protect the ordinary person from undue interference in their enjoyment of life.

The Scotland Act provides that the ECHR has direct application in Scotland, so that the rights it contains can be used by individuals appearing in Scotland’s courts.

The ECHR indeed applies throughout the United Kingdom. The Human Rights Act 1998 also ensures that the rights contained in the ECHR are protected by the domestic legal systems throughout the UK. In Scotland, this means that courts must comply with human rights when passing judgment, that the Scottish Parliament cannot legislate in a way that is incompatible with human rights, and that the Scottish Government and all public bodies acting on behalf of the state, for example the police, local authorities, health boards etc., must also comply with the rights contained in the ECHR.

In Scotland today if there is a breach of a right protected in the ECHR then the act or omission that led to the breach will be invalid under the Scotland Act 1998. If the Scottish Parliament passes legislation that is incompatible with rights contained in the ECHR then that law will be invalid under section 29 of the Scotland Act. If the court decides that the law is invalid under section 29 then it will be invalid with immediate effect.

This is not the last remedy available to a citizen. If a citizen in Scotland (or across the UK) believes that they have not received a proper remedy in the domestic court in relation to a breach of human rights then they have the option to take their case to the European Court of Human Rights in Strasbourg, France. The European Court of Human Rights will only hear cases after all domestic remedies have been exhausted meaning that citizens should, in the first place, take their case before a domestic court.

Under the Scotland Act a case taken to court relating to human rights (or EU law) is called a “devolution issue” as provided for in Schedule 6 of the Scotland Act.

Examples of human rights contained in the ECHR and protected under the Scotland Act and the Human Rights Act include:

  • The right to life (Article 2)
  • The right to freedom from torture and inhuman or degrading treatment (Article 3)
  • The right to freedom from slavery of forced labour (Article 4)
  • The right to liberty and security (Article 5)
  • The right to a fair trial (Article 6)
  • The right to privacy and family life (Article 8)
  • The right to freedom of thought, conscience and religion (Article 9)
  • The right to freedom of expression (Article 10)
  • The right to freedom of assembly (Article 11)
  • The right to marry (Article 12)

Not all of these rights are absolute. That means that the ECHR protects these rights but in some cases allows states to interfere in the enjoyment of a right if interference can be justified. So for example, the right to privacy must be protected but so must the right to freedom of expression. What happens if one person’s freedom of expression interferes with another person’s right to privacy? This has been the subject of cases brought before the European Court of Human Rights and the court tries to find a reasonable balance between different rights and determines whether interference with a right is proportionate and fair. Other rights are absolute, which means that there is no circumstance in which interference can be justified. For example, the European Court of Human Rights has been very clear that torture is never something that can be justified or considered necessary in a liberal democracy.

Very few cases from Scotland go to the European Court of Human Rights because the Scotland Act ensures such strong protection for ECHR rights under devolution. This means that most cases involving ECHR rights are settled either by the Scottish courts, or the Supreme Court in London.

European Union Law and Scotland

As discussed above, after the Second World War countries in Europe decided it would be a good idea to try and work together rather than compete with each other in areas where they had shared interests, particularly in building a common economic community. It was hoped that by cooperating with each other there would be less chance of conflicts between states arising and so it was hoped that this would lead to peace in the region. Cooperation began through a series of international treaties in relation to different areas, starting with cooperation on steel and coal and then moving into other areas such as nuclear development and trade. Eventually the treaties that were signed over several years led to the development of what is now known as the European Union. The European Union allows for the free movement of people, goods, capital and services across the member states of the organisation. Seventeen of the member states have also signed up to a common currency, “the euro”. The UK did not sign up to the common currency meaning that we still use the pound (sterling). There are 28 member states with the most recent member, Croatia, joining in 2013.

The various institutions in the European Union and their functions include:

  • The European Council – this body sets the political agenda but cannot pass laws (made up of representatives from all 28 members states and not to be confused with the Council of Europe!)
  • The European Parliament (with 736 directly elected members) adopts new law. It does this in cooperation with the European Commission and the Council of the European Union
  • The European Commission represents the interests of the EU as a whole and can propose new laws and implement them together with the European Parliament and Council of the European Union
  • The Council of the European Union (again, not the same as the Council of Europe!) represents the governments of the European Union and can adopt new laws together with the European Parliament and the European Commission
  • The Court of Justice of the European Union – this is the court responsible for overseeing that member states comply with European Union law (this court sits in Luxembourg and is not to be confused with the European Court of Human Rights which sits in Strasbourg)

The European Union can only legislate in relation to matters that have been agreed upon through the development of the treaties. In other words the EU has limited competence. All other powers remain with the states such as the UK. This means that while member states have given up some of their domestic authority in relation to areas of cooperation they also retain supreme authority in relation to matters that the EU does not have competence to make decisions on. This framework is somewhat similar to devolution: different levels of government have their own areas of responsibility.

So we need to think about Scotland in this wider context. The Scottish Parliament has certain powers, the UK Parliament has other powers, and the European Union has a third set of powers. Things get complicated when some of these powers overlap.

Areas of competence in which the European Union can create binding law include rules in relation to agriculture and fishing, rules in relation to competition law (i.e. regulation of the market) and the free movement of people, services and goods. Both the UK and Scottish Parliaments are required to accept European law as supreme in these areas. Under section 29 of the Scotland Act, the Scottish Parliament must ensure that any law passed in Scotland complies with European Union law. Any law passed by the Scottish Parliament which conflicts with EU law is invalid. In a similar way Scottish Ministers have a duty to ensure that legislation in Scotland keeps up to date with EU law when changes to devolved areas of law are required in order to comply with EU law.

A final point is that the European Union is itself now developing its own area of human rights law which exists alongside the ECHR. Under the most recent treaty which forms the basis of the European Union, the Lisbon Treaty (signed in 2007 and entered into force in 2009), the European Charter of Fundamental Rights was established and citizens of Europe have the right to protection of rights under this Charter. This Charter protects human rights, most of which are already provided for in the ECHR. However, because the Charter is part of the European Union and not the Council of Europe, there is now a new level of protection of human rights and any rights protected in the Charter will be rights that can be claimed in the Court of Justice of the European Union.

To conclude, Scotland takes its place today in a heavily integrated Europe. This means that we cannot understand the powers of the Scottish Parliament until we understand both the powers which bodies in Europe have to make law for Scotland, and the ways in which the freedom of the Scottish Parliament to make law is constrained by different areas of European law.

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