Challenging human rights breaches in the courts
In Scotland, human rights are protected by the Human Rights Act 1998 and the Scotland Act 1998.
If a public authority has breached your human rights, you may be able to take action under the Human Rights Act in the Scottish courts.
Read this page to find out more about taking court action about human rights.
Before taking action
Taking court action can be a long and stressful process. It can also be expensive. It’s important to keep in mind that if you lose the case in court you may have to pay the other side's legal costs. These could be high.
If you’re thinking about taking court action, you should get advice from an experienced adviser, for example, at a Citizens Advice Bureau.
Taking legal action
Who’s breaching your human rights
You can only take action about a breach of your human rights under the Human Rights Act against a public authority.
Courts and tribunals count as public authorities. In some cases, you may be able to make a human rights claim within other legal proceedings against another person if the court does not honour your human rights within those legal proceedings.
Find out more about what is a public authority.
Who can take legal action under the Human Rights Act
The Human Rights Act states only the victim of a human rights breach can take legal action under the Act. You’re likely to be a victim if you’re personally affected by the decision or the act you’re complaining about, or if you’re likely to be directly affected by it. You could be the victim as an individual, group of people, company or other organisation.
What are the time limits
You must make your application to the court within a year of the act you’re complaining about. There may be stricter time limits depending on the court action you take. For example, if you make an application for judicial review, from 22 September 2015 the time limit is three months and you have to request permission to take the case.
The courts can allow an application outside the one year time limit if they think it’s fair to do so. You would have to show you have a very good reason for bringing your case outside the time limit.
What kind of court action can you take
If you want to bring a case under the Human Rights Act you need to decide which court you should make your application to. This will depend on what your complaint is about and the remedy you want the court to order.
For example, if it’s an employment dispute you would normally take your case to an employment tribunal.
The remedies you can get depend on the type of court action you’re taking.
The most common remedies include:
- financial compensation - or damages
- an order - that the public authority should do something, which is called an interdict in the law.
A court will not automatically order financial compensation even if it decides your human rights have been breached. This depends on whether you’ve suffered a loss that the court thinks you should be compensated for.
When you want to take court action about a decision by a public authority, you will usually make an application for judicial review unless there’s another way of challenging the decision.
What is judicial review
Judicial review is a special procedure you can use to challenge decisions made by public authorities. Judicial review applications must be made initially to the Court of Session. The case may progress to some of the higher level UK courts.
Judicial review can only be used when there are no other ways of challenging a decision - for example if you don’t have a separate right of appeal against the decision within the legal process for your type of case.
For example, if you want to challenge a decision about a social security benefit, you normally have the right to appeal to a tribunal. In that case you should raise the human rights issue with the tribunal rather than making an application for judicial review.
Try to resolve the problem without going to court first
Before you take court action you should always try to resolve the problem in other ways if you can, for example, by negotiation, or if there is a mediation scheme available by using it. This is called alternative dispute resolution (ADR).
However, you should be aware that there are very strict time limits for making an application for judicial review. If you’re running out of time, it may be necessary to apply for judicial review. You could then ask the court for more time to consider alternative dispute resolution.
What are the time limits for taking a judicial review case
There are strict time limits for making an application. It must be made as soon as possible but within three months of the act or decision you're complaining about. You also have to request permission from the Court of Session to take a judicial review.
You may be able to apply for help with your legal costs, called legal aid, for the early part of the case when permission is being sought from the Court of Session for the judicial review.
Who can make an application for judicial review
You can only make an application for judicial review if you can show that you have sufficient 'standing' or interest in the issue.
Individuals or organisations who have a personal interest in the outcome of the case or who are directly affected by a decision of a public body will not have a problem in establishing 'standing'.
What remedies can the court order
When you make an application for judicial review the court will look at how the decision was made rather than if it was the right decision.
The court can also:
- cancel the decision - to put you back into the position you were in before it was made. The legal term for this is reduction
- make the public body stop doing something, or prevent it from doing something in the future - if it does not adhere to the terms of the court order it may be fined. The court order to make this happen is called an interdict
- order the official or body to do something specific - which it should have done to avoid breaching your human rights. This is called an order to implement
- state what it believes to be the correct position - this is called a declarator. You can ask for this on its own, but it is usually combined with other remedies the court may award such as damages for the loss you suffered as a result of harmful action or inaction.
Using human rights in actions brought against you by a public authority
You can also use the Human Rights Act in court if a public authority is taking legal action against you, for example, if you’re a social housing tenant and the local authority wants to evict you because of rent arrears. They can take you to court to get a possession order. You could try to rely on your article 8 rights which protect your right to private and family life as a defence to the proceedings against you.
When you have decided that you want to take legal action about the public sector equality duty you may need further help about using a solicitor and about what help you may be able to get with your legal costs.
Other useful information
Equality Advisory Support Service (EASS)
If you have experienced discrimination, you can get help from the EASS discrimination helpline.