Challenging human rights breaches

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.

Public authorities must respect your human rights. If you think a public authority has breached your human rights, you might be able to take action.

You won’t necessarily have to go to court. You can discuss the problem with the person or organisation who’s breached your rights. If your problem isn’t resolved informally you can make a formal complaint.

Before you take action

It’s often best to try to resolve your problem informally first. It might stop the problem getting worse and avoid the expense of taking legal action. You should be aware that there are often strict time limits for taking legal action so it might be best to act as early as possible.

Identifying a human rights issue

If you’ve been treated badly or unfairly, you'll need to identify what human rights have been breached. For example, if you’ve been refused life-saving treatment this could be a breach of your right to life under article 2 of the Human Rights Act.

Remember only public authorities have a duty not to breach your rights under the Human Rights Act and the United Nations Convention on the Rights of the Child (UNCRC).

A public authority might breach your human rights by:

  • doing something which interferes with your rights, or

  • failing to act - for example, by not protecting you if your life is in danger.

Read more about the rights protected under the Human Rights Act 1998.

Read more about the rights protected under the UNCRC on the Children and Young People’s Commissioner Scotland website.

Taking action with a complaint

You won’t necessarily have to go to court. You can discuss the problem with the person or organisation who’s breached your rights.

Making an informal complaint

It’s often best to try to resolve your problem informally first. It might stop the problem getting worse and avoid the expense of taking legal action. You can try talking to the person or people involved or you can contact their manager.

If you make an informal complaint, it’s a good idea to include the following things in your conversation:

  • a short description of what happened

  • the names and job titles of the people involved

  • the date and time of the incident

  • a description of how the incident affected you

  • what you want the organisation to do now - for example, apologise or review a decision already taken or offer compensation

  • when you expect a reply.

It’s best to keep a record of the conversation and make a note of the date. It’s also a good idea to follow up the conversation with a letter recording what was discussed.

Making a formal complaint

If the problem isn’t resolved informally, you can make a formal complaint. If there's a complaints procedure, you need to follow this. Most public authorities have their own complaints procedures. If there’s no complaints procedure you should complain in writing.

If you’re under 18 and your UNCRC rights have been breached, you or your representative should complain. There must be a child friendly complaints process. You can read more about the child friendly complaints process on the Scottish Public Services Ombudsman website.

If you make a formal written complaint you should include the following things:

  • explain what happened - include any relevant dates and times, the names of anyone involved

  • say how the actions of the public authority have affected you - for example, that it’s made you feel distressed or that it’s affected your health

  • say what you want to happen as a result of the complaint - for example, an apology or a review of the decision that’s been taken

  • include your name and contact details.

If an adviser is helping you with the complaint and you want them to advocate on your behalf, you should include their name and contact details in your written complaint. You would also need to attach a letter of authorisation signed by you to show you want the adviser to act for you.

Keep a copy of the letter and write down when you sent it. It's best to send the letter by recorded delivery, or you can ask for a free certificate of posting.

Taking your complaint further

If your problem hasn't been resolved or you're unhappy with the public authority's response to your complaint, you can contact other organisations like a regulator or an ombudsman who can look at your complaint.

You should be aware that it might take some time for your complaint to be resolved. When you make a complaint to an ombudsman it doesn't stop time running for taking legal action. If you want to take legal action you need to make sure you're not running out of time as there are strict time limits for going to court. If this is the case it may be best to take your case to court directly.

Read more about complaining to an ombudsman.

Challenging a human rights breach in the courts

If you decide to take court action you should get advice from an experienced adviser - for example, at Citizens Advice.

You can take court action against a public authority if they’ve breached your human rights. You can also rely on your human rights in cases brought against you.

Only the victim of a human rights breach can take legal action under the Human Rights 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.

If you’re under 18, you or a representative can use the courts to enforce your rights.

The Commissioner for Children and Young People for Scotland can also raise or intervene in any proceedings where a child’s UNCRC rights have been breached.

You must make your application to the court within a year of the act you’re complaining about. There might be stricter time limits depending on the court action you take. For example, if you make an application for judicial review, 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.

If you’re under 18 and complaining about a breach to your UNCRC rights, you have longer to bring some court actions. Any breach of your UNCRC rights can be challenged at any point during your childhood, or for 1 year after you turn 18. Other stricter time limits, such as for judicial review, might still apply.

If you want to bring a case 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 won’t 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.

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. 

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).

Read more about judicial review and how to bring an action on the JustRight Scotland website.

Time limits for judicial review

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.

If you don't find out about the act or decision until after it happened, the court may decide to extend the three month time limit.

If you’re under 18 and raising judicial review over a breach to your UNCRC rights, you have until 3 months after you turn 18 to raise the action.

If you’ve 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.

You might be able to apply for financial help with your legal costs, called legal aid. For example, this can help for the early part of the case when permission is being sought from the Court of Session for the judicial review.

Find out more about using a solicitor.

Find out more about getting help with legal costs.