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. 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

        Section 2.1. 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

            Section 2.1. 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

                Section 2.1. 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

                    Section 2.1. 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

                        Section 2.1. 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

            Section 2.1. 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
      • Liz g

        Section 2.1. While the thrust and intention of this article is correct... should we assume that these bodies who's ethos we bind Scotland to,will exist in perpetuity, or remain free of ideological capture ?
        While avoiding the ( nothing sits above our Constitution position that keeps the US from these benefits) should we not be more clear about what we mean and assume the absence of these bodies in their current form?

        No responses
      • Jim Osborne

        Section 2.1. There seems to be no scope for proposing a complete replacement of the proposed Article 2 of this draft Constitution. If it were these are the fundamental rights I would set out - A right to (2.1) food (2.2) water (2.3 housing (2.4) energy (2.5) health (2.6) education (2.7) work (2.8) a pension (2.9) information (2.10) freedom of movement (2.11) liberty (2.12) justice (2.13) privacy (2.14) religious freedom (2.15) freedom of expression (2.16) peaceful assembly.
        2.11 to 2.16 are enshrined in the ECHR but should be specifically set out in a Scottish Constitution. I have not drafted a proposed wording for each of these rights here as that would make this comment too long.
        If anyone thinks a right to water is unnecessary in Scotland then I suggest they watch the documentary "Flint" which demonstrates what can happen if there is no constitutional right to clean water...its the true story of the unmitigated disaster which befell the community of Flint in the US state of Michigan.

        No responses

Proposed Amendment to Section 2.1.

  • Caledonialan

    Section 2.1. 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.

      • echr8

        Section 2.1. As recorded by petition 6 (Scottish), 730/99 (EU): no nonsensical ruling can be binding.
        All precedent that law and courts recognise the correct order of time, basic to human rights to factually rational justice, make conflictingly impossible to call binding the court's ruling, in case 41597/98, that the last domestic decision on an event was taken at a date 2 years before the event itself! It established unsustainability of the mediaeval idea of final decisions. Hence it established for all Council of Europe countries, the court change, that court decisions are always open-endedly faultable, never final.

        No responses

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