Public authorities and human rights

This advice applies to Scotland. See advice for See advice for England, See advice for Northern Ireland, See advice for Wales

In Scotland, human rights are based on the European Convention on Human Rights and the United Nations Convention on the Rights of the Child.

This means you can take action if a public authority has breached your human rights. You can’t take action against a private individual.

What is a public authority

A public authority is an organisation which provides public functions. These include organisations such as:

  • courts, tribunals and ombudsmen

  • local councils

  • police, prison and immigration officers

  • schools

  • NHS boards and hospitals.

Courts will decide if something is a public function on a case-by-case basis.

Generally speaking a public function is something that's normally provided to the public by the state like education, prisons or health services.

Private organisations and charities

Private organisations or charities are also public authorities if they carry out public functions. This could include:

  • privatised utilities like British Gas and Network Rail

  • companies subcontracted to carry out a public function like a security company running a private prison

  • some housing associations when carrying out some of its functions as a social landlord

  • private care homes providing care on behalf of the local authority

  • private hospitals providing care on behalf of the NHS.

When should public authorities follow human rights

Public authorities must follow the Human Rights Act and the UNCRC in everything they do, even if it’s not a public function. This means they must also follow these rights when they do things of a private nature, like making employment contracts.

Private organisations only have to follow these rights when they carry out their public functions.

When a public authority interferes with your human rights

Human rights belong to everyone. This means sometimes your rights may conflict with someone else’s rights or with the interest of the wider community.

Your rights might have to be restricted to protect other people’s rights or the rights of the community. For example, your right to free speech may have to be restricted to protect someone else’s right to privacy. 

There are 3 types of rights under the Human Rights Act which can be interfered with differently: limited rights, qualified rights and absolute rights.

Limited rights

Some rights are limited. This means they can only be restricted in specific situations set out in the Human Rights Act.

For example, article 5 says it’s not a breach of your right to personal freedom if you’re detained following a criminal conviction or under mental health legislation and the correct procedure was followed.

Other rights may be restricted if it’s necessary to protect the rights of others.

Qualified rights

A public authority can sometimes interfere with your rights if it’s in the interest of the wider community or to protect other people’s rights. These rights are qualified.

The following rights are qualified:

  • article 8 - your right to respect for private and family life

  • article 9 - freedom to manifest your religion or belief

  • article 10  - freedom of expression

  • article 11 - freedom of assembly.

Qualified rights may need to be balanced against other people’s rights or the rights of the wider community to achieve a fair outcome. It’s the courts who decide how to balance these different interests.

They can only be interfered with for specific reasons set out in the Human Rights Act. These are called legitimate aims and include:

  • national security

  • public safety

  • the prevention of crime

  • the protection of health.

The interference must be no more than what's absolutely necessary to achieve one of the aims in the Act. The Human Rights Act says the interference must be necessary in a democratic society.

Absolute rights

Some rights can never be restricted. These rights are absolute. Absolute rights include:

  • your right not to be tortured or treated in an inhuman or degrading way

  • your right to hold religious and non-religious beliefs.

A public authority can never justify breaching an absolute right.

Interfering with rights under the UNCRC

Whether it is right for a public authority to interfere with rights afforded to young people under the UNCRC will need to be considered by the courts. 

The courts can look at whether the decision to interfere with a right is justified and proportionate in the circumstances.