Law: Scotland faces challenges on human rights
Wednesday 12 May 1999
Constitutional lawyers and academics argue that the right to equal treatment, enshrined in the European Convention of Human Rights (ECHR), can extend to differences between the Scottish and English systems of government.
Once a resident of England can show that they have been discriminated against because they are born in the wrong part of the country, lawyers say, they will be able to bring a claim under the ECHR.
Rabinder Singh, an English constitutional law expert, said yesterday: "The question is whether the fact that Scotland has devolved powers means there is an objective difference between Scotland, England and Wales and that it (the differential treatment) is not an accident of geography."
Geoffrey Bindman, a civil rights lawyer, said he could see no reason why an a student in England could not bring a case for discrimination if they could show they had been denied the right to education.
But the new taxation powers of the Scottish parliament are expected to escape legal challenge as there is no right to fair or equal taxation under the ECHR.
More cases could be brought, said Professor Anthony Bradley, a constitutional lawyer in England, and Professor Colin Munro, an expert in the subject at Edinburgh University, because the Scotland Act 1998 has an illegality clause. This automatically renders illegal all measures enacted by the Scottish Parliament in breach of the ECHR - giving everybody in Scotland a direct cause of action against Scottish legislation.
The Human Rights Act, which incorporates the ECHR into British law, comes into force in Scotland immediately, although England must wait a further two years. Mr Singh said the situation may arise where the Scottish and English parliaments both enact the same legislation at the same time. In Scotland that act will be subject to direct scrutiny under the Human Rights Act, whereas in England a challenge will have to be made under the ECHR.
An upsurge in litigation is expected to put strain on the smaller Scottish legal system. Professor Munro predicted that Scotland would become more a litigious country but at the same time acknowledged that the Scottish judiciary were not used to hearing large numbers of cases brought under the ECHR
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