Chamber
Plenary, 02 Mar 2000
02 Mar 2000 · S1 · Plenary
Item of business
European Convention on Human Rights
I am grateful to Mr McLetchie for that question, because this is a case not of either/or but of both/and. There will be occasions where it is important—for example, on the appointment and use of temporary judges—to find out the position of the courts. However, as I said, if it is necessary to introduce legislation as a result of the audit that has been undertaken, I will do so.
Mr McLetchie mentioned bail. We have taken note of the recent judgment in the European Court of Human Rights in the case of Caballero v United Kingdom and will consider our response to that. If that requires legislation, I will bring proposals to the Parliament. We are trying both to anticipate and to react. Lord James Douglas-Hamilton—I presume in anticipation of this debate—lodged 11 parliamentary questions on whether aspects of our procedures from planning to prisons were compatible with the European convention on human rights. In fairness to him and to Mr McLetchie, I should make it clear that all those questions will be answered later today.
Given the detailed audit that I have described—although it is not yet complete—the answer that will be given is that we are systematically reviewing all our activities to identify issues where there is a risk of ECHR challenge. If we believe that it is necessary to amend existing legislation in order to comply with the convention, we will bring forward proposals for that purpose at the appropriate time.
In the Conservative motion and the SNP amendment, the possibility has been canvassed of establishing a Scottish human rights commission that would have responsibility for promoting human rights and for working with the Parliament to do so. I can confirm that the Executive is considering that matter; I do not want to rule out the possibility of establishing such a body. Important questions need to be addressed about the need for such a body; about its nature, functions, remit and funding; about whether it should be statutory or non-statutory; and about its relationship with existing non-governmental organisations as well as its possible relationship with this Parliament. I am aware from meetings that the Scottish human rights forum has been considering those issues and will be putting proposals to me in the near future. I will, of course, seriously consider those proposals. As our amendment states, proposals for legislation will be brought forward in due course, if that is considered necessary. In the meantime, I welcome any views on those matters from members of this Parliament.
The SNP amendment would commit us to a human rights commission before we had given the human rights forum the chance to put forward its views. I hope that SNP members will agree that, for that reason, their amendment is premature. I ask them to support the Executive amendment, which expresses our desire to consider this important issue positively.
I should emphasise that no one can predict with certainty where challenges will come from or whether they will succeed. There are many issues on which different lawyers take different views; the final decision will always be a matter for the courts.
Let us put things in perspective. So far, convention points have been raised in some 374 cases, of which only 10 have been upheld—and some of those are the subject of Crown appeals or references. That does not suggest that our system is failing. We are being tested against a high and developing standard, and rightly so. Any justice system should welcome such a benchmark and the opportunity for continuous improvement.
I believe that the new settlement in Scotland represents a step change in many different ways, not least of which will be the promotion of greater respect for human rights. The Scotland Act 1998 and the Human Rights Act 1998 will change the way in which we think. Government and public authorities alike will take care to respect the rights of individual citizens; over time, our legal system will change for the better.
Of course there will be teething troubles; of course we will be found wanting from time to time. That experience has been shared by many other European countries, and by countries such as Canada and New Zealand, that have incorporated binding human rights into their constitutional arrangements. The experience in those countries is that in the short term there are difficulties, but in the longer term there is a process of coming to terms with a different approach and a new way of thinking.
For the Parliament and the Executive, the convention presents both a challenge and an opportunity. The challenge is to ensure that respect for human rights becomes an integral part of our thinking in developing policy and practice across the whole sweep of our devolved powers. The opportunity is to promote a genuine human rights culture in Scotland that will increase awareness among the public and public authorities alike—in other words, to ensure that respect for human rights becomes part of the fabric of our society and institutions.
We will work to ensure that the Scottish Executive lives up to those expectations and strikes a proper balance between the rights of individuals and the wider public interest—a balancing act that lies at the heart of the convention and its jurisprudence.
I move amendment S1M-610.1, to leave out from "with concern" to end and insert:
"that the obligation to comply with the European Convention on Human Rights (ECHR) has existed since 1951; appreciates that the Scotland Act 1998 together with the Human Rights Act 1998 will enable Scots to enforce their basic human rights in their own courts; notes that substantial training on the ECHR has been provided for the main justice agencies and that detailed guidance has been sent to public authorities; notes that the Scottish Executive will be considering the possibility of establishing a Scottish Human Rights Commission; and further notes that if it is considered necessary to do so, proposals for legislation will be brought forward in due course."
Mr McLetchie mentioned bail. We have taken note of the recent judgment in the European Court of Human Rights in the case of Caballero v United Kingdom and will consider our response to that. If that requires legislation, I will bring proposals to the Parliament. We are trying both to anticipate and to react. Lord James Douglas-Hamilton—I presume in anticipation of this debate—lodged 11 parliamentary questions on whether aspects of our procedures from planning to prisons were compatible with the European convention on human rights. In fairness to him and to Mr McLetchie, I should make it clear that all those questions will be answered later today.
Given the detailed audit that I have described—although it is not yet complete—the answer that will be given is that we are systematically reviewing all our activities to identify issues where there is a risk of ECHR challenge. If we believe that it is necessary to amend existing legislation in order to comply with the convention, we will bring forward proposals for that purpose at the appropriate time.
In the Conservative motion and the SNP amendment, the possibility has been canvassed of establishing a Scottish human rights commission that would have responsibility for promoting human rights and for working with the Parliament to do so. I can confirm that the Executive is considering that matter; I do not want to rule out the possibility of establishing such a body. Important questions need to be addressed about the need for such a body; about its nature, functions, remit and funding; about whether it should be statutory or non-statutory; and about its relationship with existing non-governmental organisations as well as its possible relationship with this Parliament. I am aware from meetings that the Scottish human rights forum has been considering those issues and will be putting proposals to me in the near future. I will, of course, seriously consider those proposals. As our amendment states, proposals for legislation will be brought forward in due course, if that is considered necessary. In the meantime, I welcome any views on those matters from members of this Parliament.
The SNP amendment would commit us to a human rights commission before we had given the human rights forum the chance to put forward its views. I hope that SNP members will agree that, for that reason, their amendment is premature. I ask them to support the Executive amendment, which expresses our desire to consider this important issue positively.
I should emphasise that no one can predict with certainty where challenges will come from or whether they will succeed. There are many issues on which different lawyers take different views; the final decision will always be a matter for the courts.
Let us put things in perspective. So far, convention points have been raised in some 374 cases, of which only 10 have been upheld—and some of those are the subject of Crown appeals or references. That does not suggest that our system is failing. We are being tested against a high and developing standard, and rightly so. Any justice system should welcome such a benchmark and the opportunity for continuous improvement.
I believe that the new settlement in Scotland represents a step change in many different ways, not least of which will be the promotion of greater respect for human rights. The Scotland Act 1998 and the Human Rights Act 1998 will change the way in which we think. Government and public authorities alike will take care to respect the rights of individual citizens; over time, our legal system will change for the better.
Of course there will be teething troubles; of course we will be found wanting from time to time. That experience has been shared by many other European countries, and by countries such as Canada and New Zealand, that have incorporated binding human rights into their constitutional arrangements. The experience in those countries is that in the short term there are difficulties, but in the longer term there is a process of coming to terms with a different approach and a new way of thinking.
For the Parliament and the Executive, the convention presents both a challenge and an opportunity. The challenge is to ensure that respect for human rights becomes an integral part of our thinking in developing policy and practice across the whole sweep of our devolved powers. The opportunity is to promote a genuine human rights culture in Scotland that will increase awareness among the public and public authorities alike—in other words, to ensure that respect for human rights becomes part of the fabric of our society and institutions.
We will work to ensure that the Scottish Executive lives up to those expectations and strikes a proper balance between the rights of individuals and the wider public interest—a balancing act that lies at the heart of the convention and its jurisprudence.
I move amendment S1M-610.1, to leave out from "with concern" to end and insert:
"that the obligation to comply with the European Convention on Human Rights (ECHR) has existed since 1951; appreciates that the Scotland Act 1998 together with the Human Rights Act 1998 will enable Scots to enforce their basic human rights in their own courts; notes that substantial training on the ECHR has been provided for the main justice agencies and that detailed guidance has been sent to public authorities; notes that the Scottish Executive will be considering the possibility of establishing a Scottish Human Rights Commission; and further notes that if it is considered necessary to do so, proposals for legislation will be brought forward in due course."
In the same item of business
The Presiding Officer:
NPA
The first item of business is a Scottish Conservative and Unionist party debate on motion S1M-610, in the name of David McLetchie, on the European convention...
David McLetchie (Lothians) (Con):
Con
Thank you, Presiding Officer.At the outset of my speech, I wish to clarify what this debate is about and what we are seeking to achieve with our motion. It i...
Robert Brown (Glasgow) (LD):
LD
Was not 1988 during the period of the Conservative Government, when that Government was responsible for ensuring that its legislation complied with ECHR?
David McLetchie:
Con
Robert Brown's history is correct, but I return to what I said at the outset—this debate is about mechanisms. Under the previous system, a challenge to secti...
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
Will David McLetchie confirm that all he has outlined is a series of possible challenges and suggestions from academics that measures may be contrary to ECHR...
David McLetchie:
Con
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 interes...
The Deputy First Minister and Minister for Justice (Mr Jim Wallace):
LD
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 r...
David McLetchie:
Con
Will the minister accept that, in the legislation on the armed forces disciplinary code, Westminster is taking action in anticipation of the need to bring ou...
Mr Wallace:
LD
I am grateful to Mr McLetchie for that question, because this is a case not of either/or but of both/and. There will be occasions where it is important—for e...
Roseanna Cunningham (Perth) (SNP):
SNP
I would like to say at the outset that the Scottish National party starts from a position of unequivocally supporting the incorporation of the European conve...
David McLetchie:
Con
On the incorporation of ECHR, we opposed the Human Rights Act 1998 because the issue is the relationship between the convention and our domestic law. The cur...
Roseanna Cunningham:
SNP
I hear what Mr McLetchie is saying, but the Conservatives' tone is one of grudging acceptance of a situation which most of us have welcomed. I sometimes wish...
Mr Jim Wallace:
LD
I hear what Roseanna Cunningham is saying. However, she mentioned that civil cases include custody and access cases. Will she accept that sheriffs principal ...
Roseanna Cunningham:
SNP
I do not doubt that sheriffs principal are doing their very best, but it is clear from the figures that, in many jurisdictions, they are doing a juggling act...
Gordon Jackson (Glasgow Govan ) (Lab):
Lab
It is all very well to say that such a change should be anticipated, but what age would Roseanna Cunningham set to ensure that it conforms to ECHR? Surely we...
Roseanna Cunningham:
SNP
It is inevitable that Gordon Jackson would ask that question. The truth is that once we decide that eight years old is not acceptable, we need to start the p...
Gordon Jackson (Glasgow Govan) (Lab):
Lab
For five minutes, I was enjoying myself, listening to Roseanna Cunningham. I was agreeing with her, and I say to David McLetchie that I share her disappointm...
David McLetchie:
Con
In relation to the certification of compatibility of ministers, does Gordon Jackson believe that a one-line certificate of compliance is sufficient for this ...
Gordon Jackson:
Lab
I understand what Mr McLetchie means, but the difficulty with having the full legal advice analysed is that two lawyers will give two opinions, three lawyers...
Roseanna Cunningham:
SNP
Does Gordon Jackson think that, if the age of criminal responsibility was set at eight, it would survive a challenge?
Gordon Jackson:
Lab
My honest opinion is that it would not have a snowball's chance in summer of surviving a challenge. However, the fact that I do not think that the proposal t...
David McLetchie:
Con
Would Gordon Jackson accept that the previous legal relationship between this country and the convention resulted in changes to our law? I am making the poin...
Gordon Jackson:
Lab
Of course that is right. It means that things are done more quickly. That is, however, far outweighed by the advantage for the citizen in having a matter res...
The Deputy Presiding Officer (Mr George Reid):
SNP
The debate is now open. Speeches should last about four minutes; I will allow an additional minute or so for interventions.
Mrs Lyndsay McIntosh (Central Scotland) (Con):
Con
I am the first non-lawyer to speak. I do not get paid by the minute, so I will be brief.As has been said, we support the Government's aim of protecting the r...
Hugh Henry (Paisley South) (Lab):
Lab
I was fascinated to gain an insight into Roseanna Cunningham's surgeries—surgeries in rural Scotland are clearly very different from those in urban Scotland....
Mrs McIntosh:
Con
Will the member take an intervention?
Hugh Henry:
Lab
No, I am about to finish. I want to echo Jim Wallace's point that the promotion of a human rights culture in Scotland is fundamental. We must respect human r...
Michael Matheson (Central Scotland) (SNP):
SNP
For a fleeting moment during Gordon Jackson's speech, I was of the mind that the problem is not with the ECHR, but with lawyers. We might not be having today...
Robert Brown (Glasgow) (LD):
LD
First, I must declare an interest in respect of my membership of the Law Society of Scotland, and my legal consultancy with Ross, Harper and Murphy—not least...