Constitution for Scotland Public Consultation Hub

Section 2.1. The European Convention on Human Rights that entered into force on the 3rd September 1953 is adopted in full as part of the Fundamental Law of Scotland. The European Convention on Human Rights enables the principles of the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on the 10th December 1948.

Proposed Amendments to Section

Please scrutinise all the proposed amendments and replies before commenting or voting. Short comments are most often read and must not exceed 100 words.
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Note that the original wording appears again first below and sustains the same comment & voting regime as all other amendment proposals.

Original Version

  • Avatar admin
    Administrator #1  •  2020-08-16 22:08:00

    Section 2.1. The European Convention on Human Rights that entered into force on the 3rd September 1953 is adopted in full as part of the Fundamental Law of Scotland. The European Convention on Human Rights enables the principles of the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on the 10th December 1948.

      • Caledonialan

        The formal title, which should be used in any document as important as a constitution, is "Convention for the Protection of Human Rights and Fundamental Freedoms". If it is incorporated in full as part of the constitution, there should be no need to mention the principles of the UN declaration of human rights. To do so merely confuses matters as regards what should apply in the possible event of a divergence. Reference should however be made to abiding by the case-law of the European Court of Human Rights.

          • Caledonialan

            I feel that this whole article needs to be reconsidered. I quite agree with the incorporation of the ECHR into the constitution, but it seems superfluous and confusing to go on in the same article to reiterate, with different wording, various important provisions of that convention. After section 2.1, the article should be confined to setting out rights and freedoms which are additional to those guaranteed by the ECHR.

              • Admin/CfS7

                Caledonialan - During the review of the model constitution, undertaken in 2017/8, the question of whether section 2.1 should stand alone was considered but overruled as the majority of the review committee considered that the general public are unlikely to read the ECHR document and many are unfamiliar with the content of the ECHR.

                  • Caledonialan

                    Be that as it may, there is a likelihood of confusion in legal interpretation of a constitution which incorporates the ECHR as part of the fundamental law, then goes on to set out some but not all of its provisions, often with slightly different wording. I t should be made clear to the courts whose job it will be to interpret the constitution that the ECHR as a whole, as interpreted by the ECtHR in Strasbourg, is binding on all aspects of the law in Scotland and takes precedence over any apparently contrary provision of domestic law.

                      • Caledonialan

                        A constitution is a serious document. It should indeed be as comprehensible as possible to the widest public. But it should not be dumbed down to the point where it becomes legally confusing.

                        No responses
          • Admin/CfS7

            Caledonialan - Please submit a proposed amendment eliminating the second sentence on the original version and adding in the third sentence of your comment referring to abiding by case-law of the European Court of Human rights. Your proposed amendment can then be voted upon.

            No responses

Proposed Amendment to 2.1.

  • Caledonialan

    Section 2.1. The Convention for the Protection of Human Rights and Fundamental Freedoms (commonly known as the European Convention on Human Rights or ECHR), which entered into force on the 3rd September 1953, is adopted in full as part of the Fundamental Law of Scotland. The case-law of the European Court of Human Rights interpreting that Convention shall be binding on all judicial, legislative and executive authorities in Scotland. The following sections of this article are confined to those setting out rights additional to those guaranteed by the ECHR.

    No votes  |  I agree 0 I disagree 0
    No responses

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