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.
Please scrutinise all the proposed amendments and replies before commenting or voting. Short comments are most often read and must not exceed 100 words. You can propose an Amendment at the bottom of this page - please read the guidelines .
Note that the original wording appears again first below and sustains the same comment & voting regime as all other amendment proposals.
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.
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.
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.
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.
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.
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.
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.
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?
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.
Section 2.1. Article 21of the Universal Declaration of Human Rights reads, in part, as follows:
"Everyone has the right to take part in the government of his country, directly or through freely chosen representatives."
The use of the word "directly" is commonly referred to as the basis for Modern Direct Democracy, such as practised for many years in Switzerland. However, as far as I can see, text to this effect is not incorporated in the European Convention - am I mistaken or can you please point me in the right direction ?
Section 2.1. Henry is correct. The ECHRC does not explicitly mention the right to direct participation in government however it does provide some support for the principle..
Article 10 guarantees the right to freedom of expression; Article 11 guarantees the right to freedom of association i.e. the right to participate in government as it allows political parties.
It It may be relevant to note that in 2012 the European Court of Human Rights ruled that the Italian government had violated the right to freedom of expression when it refused to hold a referendum on a proposed law to privatize water services.
Section 2.1. Three comments: 1. "Support for the principle" is not the same as making an explicit statement about the principle itself, 2. The right to freedom of expression is not what I call "direct participation in government" and 3. Being a member of a political party is certainly exercising a right to freedom of association, but that’s not "direct participation in government" either. At best, it's very indirect ! In Switzerland, home of Direct Democracy, the expression “Political Rights”, means the right to "participate in elections .... and launch or sign Popular Initiatives and requests for Referendums (Swiss Constitution Art. 136).
Section 2.1. It’s incorrect to say: "The European Convention on Human Rights (ECHR) enables the principles of the Universal Declaration of Human Rights (UDHR)…" The preamble to ECHR states that only "CERTAIN of the rights stated in the Universal Declaration" are included. The UN treaty implementing UDHR is NOT ECHR but the International Covenant on Civil and Political Rights (ICCPR), ratified by the UK in 1976 but never introduced into legislation. ECHR doesn't include Popular Sovereignty (i.e. Direct Political Rights such as popular Initiatives or Referendums) (ICCPR Art.25) or Self-Determination (ICCPR Art.1). Other UN Human Rights may also have been similarly ignored.
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.
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.
Section 2.1. not too convinced about the binding nature of "case law". The whole point of case law is that it develops as culture and norms change down the generations and centuries. It's a living thing but it could take a direction which is inimical to our national ethos. When the judges get it wrong it can take some time to correct especially if governments are not proactive in agreeing to corrective a corrective treaty .
Section 2.1. Section 2.1. The International Covenant on Civil and Political Rights that entered into force on the 23rd March 1976 is adopted in full as part of the Fundamental Law of Scotland. The International Covenant on Civil and Political 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.
Section 2.1. Yes, this amendment would have a direct bearing upon application for EU membership which does not provide for individual member opt outs from EU legislation whether by public referendum or any other recourse. An alternative is to retain the original ECHR wording but to add “other than where it may conflict with other elements of this Constitution”. This might make for easier negotiation at some future date over joining the EU. while retaining full political rights over National (non-EU) legislation. See diagram of the main differences by clicking the final PDF link under the MEDIA tab (main CfS website).
Section 2.1. Section 2.12. All citizens have the right to privacy with regard to bodily autonomy, including the right of women to safe abortions. They also have the right to privacy with regard to electronic and written communication dealing with private and family life, other than is necessary and reasonable in a democratic society to prevent abuse of this right. Subject to any situation involving national emergency or safety.
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.
You can propose an Amendment at the bottom of this page - please read the guidelines .
Note that the original wording appears again first below and sustains the same comment & voting regime as all other amendment proposals.
Original Version
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.
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.
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.
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.
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.
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.
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.
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?
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.
Section 2.1. Article 21of the Universal Declaration of Human Rights reads, in part, as follows:
"Everyone has the right to take part in the government of his country, directly or through freely chosen representatives."
The use of the word "directly" is commonly referred to as the basis for Modern Direct Democracy, such as practised for many years in Switzerland. However, as far as I can see, text to this effect is not incorporated in the European Convention - am I mistaken or can you please point me in the right direction ?
Section 2.1. Henry is correct. The ECHRC does not explicitly mention the right to direct participation in government however it does provide some support for the principle..
Article 10 guarantees the right to freedom of expression; Article 11 guarantees the right to freedom of association i.e. the right to participate in government as it allows political parties.
It It may be relevant to note that in 2012 the European Court of Human Rights ruled that the Italian government had violated the right to freedom of expression when it refused to hold a referendum on a proposed law to privatize water services.
Section 2.1. Three comments: 1. "Support for the principle" is not the same as making an explicit statement about the principle itself, 2. The right to freedom of expression is not what I call "direct participation in government" and 3. Being a member of a political party is certainly exercising a right to freedom of association, but that’s not "direct participation in government" either. At best, it's very indirect ! In Switzerland, home of Direct Democracy, the expression “Political Rights”, means the right to "participate in elections .... and launch or sign Popular Initiatives and requests for Referendums (Swiss Constitution Art. 136).
Section 2.1. It’s incorrect to say: "The European Convention on Human Rights (ECHR) enables the principles of the Universal Declaration of Human Rights (UDHR)…" The preamble to ECHR states that only "CERTAIN of the rights stated in the Universal Declaration" are included. The UN treaty implementing UDHR is NOT ECHR but the International Covenant on Civil and Political Rights (ICCPR), ratified by the UK in 1976 but never introduced into legislation. ECHR doesn't include Popular Sovereignty (i.e. Direct Political Rights such as popular Initiatives or Referendums) (ICCPR Art.25) or Self-Determination (ICCPR Art.1). Other UN Human Rights may also have been similarly ignored.
Proposed Amendment to Section 2.1.
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.
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.
Section 2.1. Include UN Convention on the rights of the child.
Section 2.1. not too convinced about the binding nature of "case law". The whole point of case law is that it develops as culture and norms change down the generations and centuries. It's a living thing but it could take a direction which is inimical to our national ethos. When the judges get it wrong it can take some time to correct especially if governments are not proactive in agreeing to corrective a corrective treaty .
Proposed Amendment to Section 2.1.
Adopt UN, not European, Human Rights
Section 2.1. Section 2.1. The International Covenant on Civil and Political Rights that entered into force on the 23rd March 1976 is adopted in full as part of the Fundamental Law of Scotland. The International Covenant on Civil and Political 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.
Section 2.1. Hi Henry, adoption of this seems sensible but would it have a bearing on Scotland joining EFTA or the EU in future?
Section 2.1. Yes, this amendment would have a direct bearing upon application for EU membership which does not provide for individual member opt outs from EU legislation whether by public referendum or any other recourse. An alternative is to retain the original ECHR wording but to add “other than where it may conflict with other elements of this Constitution”. This might make for easier negotiation at some future date over joining the EU. while retaining full political rights over National (non-EU) legislation. See diagram of the main differences by clicking the final PDF link under the MEDIA tab (main CfS website).
Proposed Amendment to Section 2.1.
The right to bodily autonomy or abortion
Section 2.1. Section 2.12. All citizens have the right to privacy with regard to bodily autonomy, including the right of women to safe abortions. They also have the right to privacy with regard to electronic and written communication dealing with private and family life, other than is necessary and reasonable in a democratic society to prevent abuse of this right. Subject to any situation involving national emergency or safety.