Human Rights and Scots Law. Edited by Alan Boyle, Chris Himsworth, Andrea Loux, and Hector MacQueen. Portland, Ore.: Hart Publishing, 2002. Pp. 355. $72.00, cloth.

Human Rights and Scots Law seeks to address the effect of new human rights legislation and devolution on Scottish law and, in certain instances, United Kingdom (U.K.) law more generally. The U.K. ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in 1951 and allowed its citizens to take cases to the European Court of Human Rights (ECtHR) from 1966 onwards. However, the rights expressed in the ECHR—the right to life, the right to family and private life, the right to a fair trial—did not become part of U.K. domestic law until 1998 with the passage of the Human Rights Act (HRA). That same year, separate acts devolved a greater legislative power to local assemblies in Scotland, Wales, and Northern Ireland. Both the HRA and the Scotland Act have altered the long standing concept of Westminster parliamentary sovereignty by bringing to the foreground a new reliance on local governance, an emphasis on “reading in” human rights into law, and some formalization of the U.K.’s unwritten constitution.

The book asks whether and to what extent the HRA marks a radical change in British constitutional law, representing a shift to a “rights based” discourse or reflecting a more piecemeal change to the common law. The book further considers the often cross purposes of HRA, which seeks to promote a consistent application of rights and the devolution policy that gives greater autonomy to Scotland. Threaded throughout the book as well are questions relating to the changing role of the judiciary and how these developments will affect the traditional conservatism of the bench.

The first five chapters address these themes by offering a range of perspectives on the relative impact of the HRA. Lord Clarke emphasizes judges’ new duty to use the jurisprudence of the ECtHR in interpreting the HRA. Himsworth doubts the ability of the HRA to achieve uniformity particularly in light of the devolution policies and the differences across the U.K. in existing rights protection. He also suggests that there is a continuing hostility on the part of Scottish judges to the use of the ECHR in Scottish jurisprudence. Tierney takes up this latter point by emphasizing an inevitable change in the judicial role as constitutional law becomes increasingly based on the adjudication of rights. He argues that this transition must be met with safeguards for judicial independence and measures to strengthen judicial impartiality.

Subsequent chapters highlight the comparative experiences of Sweden (Cameron) and Canada (Boyd) in incorporating human rights law as well as detail the impact of the HRA and the Scotland Act in specific areas of law. For the reader, the picture that emerges is equivocal. Some authors are confident that the HRA will signal better rights protection and will help strengthen a rights-based culture. Hogg is optimistic that the right to private life and protection from discrimination will encourage the legislature to take action in issues related to sexual orientation. Ferguson and Mackarel argue that Scottish criminal law will continue to evolve as courts test devolution issues, as supported by the swift acclimation to HRA provisions by criminal defense lawyers and state prosecutors.

Other contributors express stronger reservations that rights in the HRA will conflict with existing protections and could actually weaken the ability of legislators to make positive reforms. Laurie notes that the HRA’s influence on medical law has been poorly received by the Scottish judiciary. Laurie suggests that courts, instead, have routinely given responsibility to the medical profession for protecting patients’ rights.

Still other chapters offer a more mixed view. Although MacQueen and Brodie observe that the HRA has supported positive change in private law, they also register concerns about how the protection of property rights sits with Scottish land reforms. Similarly, Edwards remarks that the HRA might be both a “boon and threat” for children’s rights because the ECHR, which does not directly recognize children’s rights, might set back Scottish legislation like the Children (Scotland) Act 1995, or disproportionately favor parental rights. Loux addresses the concerns more generally by advocating the use of third party intervention to strengthen a democratic dialogue around the HRA and to create a broader basis for rights education.

These issues are arguably best summarized in the chapters by Munro and Gearty. Munro concludes that judicial review procedures have not dramatically changed, but the use of proportionality may prove over time to transform how courts analyze rights; she argues that the courts are now able to require full and proper justification from public authorities in balancing individuals’ rights and the needs of the state. Gearty notes that although courts have spurred important reform in the criminal justice system; he argues that the changes wrought by the HRA seem more motivated out of protection of the common law than the bolder assertion of unqualified rights.

All of this is to answer an apparently simple question with a multiplicity of answers: Is the HRA a revolution in U.K. law or merely the evolution of the common law? The book is relatively successful in giving the reader varying shades of the debate in different areas of law, although it is difficult at times to see how particular chapters answer this question. For example, Gretton describes the right to protection of property without linking his discussion to the HRA or the Scotland Act. Clark describes her role as the new Advocate General but provides the reader with little analysis regarding the use of these powers.

Understandably enough, no book could hope to address all the issues and questions raised by the introduction of the HRA, especially so soon after incorporation. To this extent, Human Rights and Scots Law succeeds in what it attempts to do, namely in giving the reader an understanding of the various issues of the debate surrounding human rights in Scotland and the U.K.

—Rachel Rebouche

Copyright © 2004 by the President and Fellows of Harvard College
Harvard Human Rights Journal / Vol. 17, Spring 2004