Hate crime legislation independent review: consultation (non-technical guide)

Chapter 2: Human rights context

Human rights are basic rights and freedoms that belong to everyone. The United Nations’ Universal Declaration of Human Rights was adopted following the Second World War and sets out a common standard of achievements for all people and all nations. It includes rights such as the right to life and liberty, and equality before the law.

Since the Universal Declaration, many more specific human rights agreements have been agreed between countries. A number of these are relevant to hate crime:

• European Convention for the Protection of Human Rights and Fundamental Freedoms ( ECHR)
• International Covenant on Civil and Political Rights ( ICCPR)
• International Convention on the Elimination of All Forms of Racial Discrimination ( CERD)
• Convention on the Rights of Persons with Disabilities ( CRPD)
• Convention on the Rights of the Child ( CRC)
• Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention)
• Framework Convention for the Protection of National Minorities

The rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms ( ECHR) have been adopted in Scots law. That means that individuals can rely on these rights in the courts. The other agreements do not apply directly, but the Scottish Government and wider civil society are committed to exploring how Scotland can go beyond the rights set out in the ECHR. This includes using human rights principles to tackle injustice and exclusion in order to improve lives. In 2013, a group from across the public and voluntary sectors worked to produce Scotland’s National Action Plan for Human Rights (2013-17). The Plan was used to co-ordinate action by a wide range of public bodies and voluntary organisations towards achieving the vision of a Scotland where everyone can live with human dignity, where social justice, equality and empowerment are the hallmarks of our society. It identified the need for priority action to ‘enhance respect, protection and fulfilment of human rights to achieve justice and safety for all’. This includes recognising the importance of raising awareness of hate crime and ensuring that it can be tackled effectively.

It is sometimes necessary to strike a balance between different people’s rights. For example, article 9 ECHR protects freedom of thought, conscience and religion, which includes the right to manifest religion or belief. However, that right is not absolute: it can be limited by laws which are proportionate to protect the rights and freedoms of others.

Likewise, article 10 ECHR protects freedom of expression, which includes the freedom to express ideas which shock, offend or disturb others. However, Parliament can choose to limit that right where it is necessary to protect others – for example, by prohibiting the publication of material which incites violence.

It is therefore important to recognise that the freedom to practice or observe one’s religion or belief, or to express one’s opinions, does not provide protection for conduct (including speech) which is contrary to the fundamental principles and values of the Convention on Human Rights.