Scottish Human Rights Law Group

Reliance was placed on the State’s duties to protect human life under Article 2 to found a claim for damages against a local authority landlord.   The damages claim was brought the widow and daughter of a deceased person who died after being assaulted by his neighbour.  They sought damages from their common local authority landlord on the basis that they had breached common law duties of care owed by them to the deceased and their duties under Article 2 ECHR by failing to evict the neighbour prior to the fatal assault, which was the culmination of a history of poor relations between the two neighbours and tenants.

On appeal to the Inner House the damages action was permitted to proceed to a proof on the averments, including the case as based on Article 2.   In a dissenting judgment, however, Lord Reed observed that that neither the nature of the respondents’ activities nor their functions entailed a responsibility to protect the deceased’s life and although the Strasbourg case law was in a state of development, none of the authorities cited established that art 2 was applicable to the reclaimers’ complaint, either so as to impose an obligation to take preventive operational measures to protect the deceased’s life or so as to impose an obligation to implement procedures set up to protect the right to life.   In these circumstances Lord Reed found it questionable whether the domestic court ought to proceed in a way which would appear to extend the scope of article 2 beyond the existing case law of the European court of Human Rights.[1]

However, the local authority’s appeal to the House of Lords was upheld and the family”s cross-appeal, that the Court excluded from probation their averments that the local authority had acted incompatibly with Article 2, was dismissed.

Lord Hope said this at para 25:

25 Senior counsel for the pursuer also said that it was unclear whether the threefold test was part of the law of Scotland, at least in cases where damages were claimed for personal injury …    The test is indeed broadly expressed. But I see no good reason why, as a general guide to what is required, it should not be regarded as part of Scots law. It is really no more than an expression of the idea that lies at the heart of every judgment about legal policy. If liability is to attach, it should be in situations where this is readily understandable because, looking at both sides of the argument, it is fair and reasonable that there should be liability. …. There is no principle of Scots law that contradicts it, and the fact that the law of liability for negligence has developed on common lines both north and south of the Border provides powerful support for the defenders’ argument that it should be applied in this case.”

Baroness Hale at para 78:

“78 This is but the latest in a long line of cases from Scotland which have played such an important part in shaping the law of negligence for the whole of the United Kingdom. The Human Rights Act 1998 is, of course, unquestionably the law for the whole of the United Kingdom and must be read and given effect in the same way both north and south of the border. I too venture to think that, had the Extra Division had the benefit of the decision of this House in Van Colle v Chief Constable of Hertfordshire Police [2009] 1 AC 225, then they would have been unanimous in excluding the human rights case from probation.

See too Lord Brown of Eaton-under-Heywood at para 80:

“There was some suggestion in argument that the test for liability was different (and more exacting) in England than in Scotland but that cannot be. That would be bizarre indeed, not least given that much of England’s negligence law was forged in Scottish appeals.”

2009 SLT 247, HL

Full House of Lords decision available here.

“35. … [T]here are good reasons why we should follow the interpretation adopted in Strasbourg. The best reason is the old rule of construction that when legislation is based upon an international treaty, the courts will try to construe the legislation in a way which does not put the United Kingdom in breach of its international obligations. If Strasbourg has decided that the international Convention confers a right, it would be unusual for a United Kingdom court to come to the conclusion that domestic Convention rights did not. Unless the Strasbourg court could be persuaded that it had been wrong (which has occasionally happened) the effect would be to result in a finding that the United Kingdom would be in breach of the Convention. Thus section 2(1) of the 1998 Act allows for the possibility of a dialogue between Strasbourg and the courts of the United Kingdom over the meaning of an article of the Convention but makes this likely to be a rare occurrence.

36. Other reasons for following Strasbourg are ordinary respect for the decision of a foreign court on the same point and the general desirability of a uniform interpretation of the Convention in all Member States. But none of these considerations can apply in a case in which Strasbourg has deliberately declined to lay down an interpretation for all Member States, as it does when it says that the question is within the margin of appreciation.

37. In such a case, it for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch.

38. It follows, my Lords, that the House is free to give, in the interpretation of the 1998 Act, what it considers to be a principled and rational interpretation to the concept of discrimination on grounds of marital status.”