Article by Hector L. MacQueen
The Article discusses the domestication of the European Convention on Human Rights as a result of the Human Rights and Scotland Acts of 1998. Developments to date may support the view that judges rooted in either purely common or civil law systems find it harder to deal with human rights issues than those who come from mixed, and perhaps therefore more flexible, legal backgrounds. The effects of the two Acts of 1998 include a horizontal one in private law; that is, human rights protect the individual (including juristic persons) not only against the State (vertical effect) but also against other private parties. The model that exists in Scotland is one of indirect horizontal effect, but nonetheless makes use of what President Barak calls the “application to the judiciary” model. It is argued that Convention rights are likely to permeate the common laws of Scotland and England rather slowly over time, consistently with their traditional case-by-case development under which the relevance of the rights to common and private law issues will gradually emerge for assessment and have their compatibility then determined. The argument is illustrated by more detailed examination of the ECHR article 8 right to privacy, which is being developed in the United Kingdom mainly by way of extending the existing action of breach of confidence. In Scotland there have also been arguments based on the actio injuriarum. The potential for more radical development is further limited by the nature of the European Convention itself and also by the lack of open-ended norms such as good faith, public policy, and abuse of right in both Scots and English common law.
About the Author
Hector L. MacQueen. Professor of Private Law, University of Edinburgh.
Citation
78 Tul. L. Rev. 363 (2003)