Hansard

First, I welcome this debate and thank Mr McLetchie and his party for giving the Parliament an opportunity to discuss an important and topical issue.

Human rights and justice should always go hand in hand. That is a principle to which I am committed and I hope that it is one to which all parties, and people in all parts of the Parliament, would subscribe. Indeed, the principle is enshrined in our devolution settlement.

Before turning to the Scotland Act 1998, I should point out that there is nothing new about the European convention on human rights. As Mr McLetchie acknowledged, British lawyers were instrumental in drafting the convention. The UK was one of the original signatories in 1950 and we ratified the convention in 1951, which means that, for the past half century, successive Governments have accepted the obligation to act in accordance with convention rights. Since 1966, British citizens have had the right to take their cases to the European Court of Human Rights in Strasbourg.

So, convention rights are not new, and neither is our obligation to act in accordance with them. What is new, as a result of the Scotland Act 1998 and the Human Rights Act 1998, is that Scots will be able to raise convention issues in proceedings before our own courts, and that Scottish courts will be able to apply and interpret the convention and play a part in developing its jurisprudence. To my mind, those are entirely positive developments that are wholly in keeping with the devolution settlement.

In the majority of European countries—39 out of 41—the convention is incorporated into domestic law. Many countries, following incorporation, had similar difficulties to those that we are encountering in Scotland. I hope that no member will suggest that it should be more difficult for Scots to assert their human rights than it is for other Europeans. That, however, is what the Conservatives and Mr McLetchie appear to have argued. They appear to be saying that we should have such rights, but that those rights should be available only to those who have the time and money that can vindicate them in the Strasbourg court. We want to bring human rights home, not send litigants abroad. We want people to be able to establish and exercise those rights in a neighbourhood court, not in a court in a neighbouring country. Human rights should be available to people in Stirling without their having to go to Strasbourg.

That brings me to the Scotland Act 1998 and the approach that it takes to defining the competence of the Parliament and the Executive. As Mr McLetchie said, the position is crystal clear—neither the Parliament nor the Executive can exercise any of their powers in a way that is incompatible with any convention rights. If it is found that they have done so, the courts can strike down legislation or acts of the Parliament as unlawful.

Given the way in which the Parliament has been set up as a devolved body that is defined by statute, it is almost a legal truism that we can act only within statutory competence and vires. That means that we cannot act inconsistently with the United Kingdom's international treaty obligations—hence our commitment and subjection to ECHR.

I make no apology for preferring to live in a country in which the Government of the day is subject to human rights legislation, even if that is awkward for the Government. That is far better than living in a country in which the Government can override human rights legislation.

I would like to deal with one or two of the points that Mr McLetchie raised. There is no division between the First Minister and me on the appointment of judges. If those who have written some of the newspaper reports on the matter had examined the First Minister's address to the Law Society of Scotland on its 50th anniversary last July, they would have seen a clear commitment to consultation on the appointment of judges. A consultation paper will be published before Easter, I hope, that will make it clear that we want greater transparency in the appointment of judges in Scotland.

There have been challenges to the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, but it must be remembered that that legislation was deemed to be within the Parliament's competence by the Executive and the Presiding Officer. I can assure Mr McLetchie that the Executive will strongly contest the challenges to that act in the Court of Session.

I want to put an important point about road traffic on the record. The case that is the subject of an appeal to the Judicial Committee of the Privy Council was one that turned on the facts of the case. The procurator fiscal will not lay evidence obtained through the exercise of police powers under section 172 of the Road Traffic Act 1988 where the driver is the suspect in a road traffic case. It should be made clear that the ruling does not prevent the police from using that power as an investigative tool. Drivers who fail to comply with the police will still be reported to the procurator fiscal. That judgment will not affect the handling of speeding offences detected by the use of speed cameras. It is useful to get that message out to the public in case there are people who think that they can flout the law on the basis of that decision.

When the Human Rights Act 1998 comes fully into force on 2 October, it will be unlawful for public authorities anywhere in the UK to act in breach of convention rights. That means that, for the first time, Scots will be able to assert and enforce basic human rights in our courts. All our institutions—Parliament, the Executive, the police, the prosecution service and the courts—will have to ensure that they comply with ECHR in everything that they do. The ECHR has, in short, been written into the constitution of the devolved Administration.

The arrangements have been criticised in some quarters, where they have been described as an accidental by-product—something that we stumbled into by mistake. Is it really being suggested that the Scottish Parliament and the Scottish Executive should be given powers to act in breach of convention rights and, consequently, in breach of the United Kingdom's long-standing international obligations?

The approach to the convention that is set out in the Scotland Act 1998 is right in principle. Indeed, in my view this could not have been done in any other way. The other part of the equation is the Human Rights Act 1998, which, as I have explained, will apply throughout the United Kingdom when it comes into force in October. The act is a progressive piece of legislation, long fought for by the Liberal Democrats, members of the Labour Party and by the SNP. As Mr McLetchie has indicated, although the Conservatives sign up to the principles of the European convention on human rights, they have always opposed its introduction into domestic law.

Under the Human Rights Act 1998, the courts will be required to interpret all legislation—whether from Westminster or Holyrood—in a way that is as far as possible compatible with the convention. That approach will take priority over common law, and precedents will be overturned if they are incompatible with the convention rights. Through the courts, we will see an increasing emphasis on human rights in the development of our common law.

As Mr McLetchie rightly pointed out, the courts will not be able to strike down Westminster legislation, because Westminster retains the doctrine of the sovereignty of Parliament. However, if the Court of Appeal or the Court of Session finds that a provision in Westminster legislation is incompatible with any of the convention rights, it will be able to make a declaration of incompatibility, and a fast-track procedure for the amendment of the offending legislation will be invoked.

I am not disputing the fact that the Scotland Act 1998 and the Human Rights Act 1998, taken together, represent a huge sea change. The provisions that I have described are designed to weave the convention rights into the fabric of decision making in law, government and public administration. Those provisions should help to create a human rights culture in which the rights and responsibilities of individuals are properly balanced, well understood and readily enforceable.

The Scottish Executive—and the Scottish Office before it—knew that we had to prepare for incorporating the convention into our domestic law, and we have done so. The Executive, the Crown Office, the judiciary, the police and others have undertaken extensive training programmes. Guidance on the convention implications of the Scotland Act 1998 and the Human Rights Act 1998 was published by the Scottish Office in April last year and was widely distributed. More detailed guidance has recently been issued to public authorities and is also available on the internet.

Last year, a high-level working group within the Executive co-ordinated two reviews across all departments to identify aspects of legislation, practice or procedure that might need to be changed. That work is now being supplemented by a detailed audit, which is systematically reviewing all our activities to identify issues where there is a risk of challenge. One of the advantages of that work is that it can take account of the emerging Scottish jurisprudence as judges in Scottish courts interpret the European convention on human rights. I am considering several areas where legislation may be required as a result of either the audit or court decisions.

It is important to make that point, because, as Mr McLetchie said, we are responding to events. Recently, there was a court case on temporary judges. It makes sense to await the outcome of that case to identify whether there was a weakness and, if so, to clarify precisely where that weakness exists in order to address it. I am sure that Mr McLetchie would be one of the first people to start jumping up and down if we tried to take pre-emptive action that proved to be insufficient or did not address the particular weakness identified by the courts—if, indeed, they identify such a weakness.