Defending the Scotland Act 1998 as a ‘third way’ Bill of Rights

Rights statement
Awarding institution
  • University of Strathclyde
Date of award
  • 2022
Thesis identifier
  • T16187
Person Identifier (Local)
  • 201655083
Qualification Level
Qualification Name
Department, School or Faculty
  • This thesis seeks to defend the claim that the Scotland Act 1998 operates as a ‘third way’ Bill of Rights. It argues that ‘third way’ theory is a useful lens through which to view rights protection because it emphasises the importance of different governmental branches having a role in the protection of human rights and it highlights how rights can be protected in better and more democratically-legitimate manner when these institutions interact. The claim that the Scotland Act 1998 adopts the ‘third way’ model might be seen as controversial because unlike ‘core’ ‘third way’ Bills of Rights, the Act does not include a parliamentary override. However, by critically analysing ‘third way’ theory and assessing the design and operation of ‘core’ ‘third way’ Bills, the paper demonstrates that not all ‘third way’ accounts view the existence of a parliamentary override to be essential to the model and that, relatedly, there is little evidence of parliamentary overrides being used to facilitate dialogue in practice. It develops an account of the ‘third way’ model that merges the ‘legislative rights review’ associated with Hiebert with Young’s ‘democratic dialogue’. The Scotland Act 1998 is in conformity with this account because it includes numerous provisions that engender legislative rights review and because a combination a judicial deference and provisions in the Scotland Act that encourage remedial deference allow the legislature and the court to work together to protect rights. Analysis of the operation of Scotland’s model shows that the judicial perspective risks being over-prioritised to the detriment of the legislative perspective. This could lead to Scotland’s model becoming unbalanced. Parliament is in a particularly weak position to fulfil its institutional role under the model. Despite this, opportunities for democratic actors to contribute to the settling of rights-questions remain and these opportunities can be made greater with reform
Advisor / supervisor
  • McCorkindale, Christopher
  • Paterson, Alan
Resource Type
Date Created
  • 2021