Hansard

Yes, I am prepared to accept those figures, but there could well be 340 specious charges. Lawyers are creative people when it comes to furthering the interests of their clients, just as they are creative politicians. What is indisputable is that those challenges that have been successful in relation to temporary sheriffs and section 172 of the Road Traffic Act 1988 have had serious consequences, although we await the outcome of the appeal in the case of the Road Traffic Act 1988.

I will conclude the quotation from the article. It goes on to say:

"In the initial stages it is likely that there will be challenges to police actions on numerous fronts and that there will inevitably be uncertainty until the courts here have provided guidelines from which a clearer position can emerge."

No one wants to create a police state, and the boundary between police powers and civil liberties must be carefully patrolled and adjusted in light of changing circumstances. If too much emphasis is placed on individual rights and not enough emphasis is placed on the need for a safe and well-ordered society, we are in danger of going too far, making the police fight crime with one arm tied behind their back. If we are not careful, we might soon be in the position in which the police are metaphorically handcuffed but the criminals, literally, are not.

ECHR may also hamper the fight against drugs. We all know that the Deputy Minister for Justice is an enthusiastic convert to the Republic of Ireland's tough measures to tackle drug dealers. Its Criminal Assets Bureau has—according to his reports to the Parliament—been a great success. However, the Irish system involves the seizure of drug dealers' assets under a civil standard of proof in which the onus is reversed. There must be a doubt as to whether similar legal mechanisms would not only withstand legal challenges based on ECHR in our courts, but even get off first base and come to this Parliament as legislative proposals if the Scottish Executive and Presiding Officer cannot independently and separately certify their compatibility with ECHR.

The Irish have not had to face those challenges, as they have not directly incorporated ECHR into their domestic law, as we did with the Human Rights Act 1998. I believe that the Labour Government made a major mistake in passing the Human Rights Act 1998 without fully considering the implications for our law and our institutions. I do not expect many in this Parliament—outwith my party—to agree with me.

Having highlighted the problems, let us acknowledge that the wider debate is for another place. We in Scotland live in the world of a devolved Parliament and Executive. We must operate within the parameters that have been set by the Scotland Act 1998. We must come up with a constructive solution to some of the problems that have arisen and accommodate ECHR in the way in which we conduct our business.

The implications of ECHR already affect the Scottish Executive, and from 2 October 2000 the Human Rights Act 1998 will come into force across Scotland and the United Kingdom. It will then be unlawful for any public authority, such as a local authority, court, tribunal or other public agency, to act in a manner that is incompatible with ECHR.

We cannot afford to continue with the fire-fighting approach that the Executive has adopted in constantly waiting for the next disaster to strike. The Executive must start preparing in advance to deal with the implications of this legislation. I welcome the suggestion in the amendment lodged by Mr Wallace that that seems to be being done in terms of guidance given to public authorities in Scotland.

The first step in the process should be to reform the way in which ministers deal with ECHR compatibility. It is not good enough that ministers assert in a one-line submission to this Parliament that a bill is compatible with ECHR. It should be incumbent on the Executive to produce a full statement, with a rigorous analysis, explaining the ECHR implications of its legislative proposals. That is especially important in complex cases. The assessment should identify the specific rights that have an impact on the legislation. I remind members that interference with a qualified right, under ECHR, is justifiable only if it is

"necessary in a democratic society",

which is interpreted by Strasbourg as fulfilling a pressing social need, pursuing an accepted legitimate aim and achieving a reasonable relationship of proportionality between the means employed and the aim pursued. As has been demonstrated by Strasbourg case law, that concept of proportionality should be of most concern to us as parliamentarians. It should be at the very heart of our debates on legislative proposals that may have ECHR implications; it should not simply be taken as read in a one-line compatibility certificate.

It is crucial that the advice given to ministers or to the Parliament is open to scrutiny. That is certainly not the case at present. I note that Colin Boyd, in a statement issued after his appointment as Lord Advocate, said:

"The Executive is conducting an ECHR audit which will report to Ministers shortly."

Well, good for the Lord Advocate. But what about the Parliament? That is exactly the legal closed shop approach that has led to mistakes in the past. Far too often, legal opinions are presented as though they are scientific facts—immutable laws, like the law of gravity—when they are nothing of the kind. As many of us are well aware, the law is open to wide interpretation, and opinions should be open to scrutiny and debate in the chamber.

The Parliament should be given, as a matter of urgency, a report on the impact to date of incorporation and the preparations that the Executive has made for October, when the Human Rights Act 1998 takes full effect. I hope that the first stage of that report will come in the minister's response in this debate.

Above all, we need to provide guidance to all public bodies in Scotland about the effects of ECHR on an on-going basis. Our public bodies are unprepared for the brave new world that awaits them after 2 October. There is a lack of professional knowledge and expertise in this area, which is why I would welcome the establishment of a human rights commission or similar body to act as a point of reference or guidance on a consultancy basis. That is the most effective way of providing advice to public authorities. Local authorities and other public bodies should not have to employ extra lawyers to deal with ECHR compatibility—my legal colleagues may not like that suggestion—when a central specialist service could be available to them.

Like the Irishman who, when asked for directions, replied that he would not start from here, the Conservatives would not have incorporated ECHR. Now that it has been done, however, we think that the solutions that I have outlined in this debate will enable the system to work as effectively as possible. I hope that the minister will take some of those solutions—and indeed the comments in the amendment lodged by the Scottish National party—on board in the constructive spirit in which they are intended.

I move,

That the Parliament notes with concern the disruption to Scotland's judicial system resulting from Her Majesty's Government's decision to directly incorporate the European Convention on Human Rights (ECHR) into Scots Law without having paid due attention to the consequences; further notes that the Convention now impacts directly upon the legislative competence of the Parliament and the powers of the Scottish Executive and from October 2000 will apply to all public authorities in Scotland; calls upon the Scottish Executive to provide, at the earliest opportunity, a full report to the Parliament on the impact of incorporation to date and a statement on the Executive's state of preparedness for October when the Convention becomes fully operational, and further calls upon the Scottish Executive to provide a full and detailed analysis of the ECHR implications of legislative proposals submitted to the Parliament and to consider establishing a Human Rights Commission or some other body to provide expert advice and guidance on the impact of the ECHR on public authorities in Scotland.