Committee
European and External Relations Committee 04 February 2016
04 Feb 2016 · S4 · European and External Relations Committee
Item of business
Human Rights
Professor Miller
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I would be happy to try to answer that question. It is quite clear from the press and media campaign over the past few weeks on the armed forces issue and from Michael Gove’s statement in the House of Lords earlier this week that doing something about mission creep and the armed forces is one of the justifications for the repeal of the act. I will try to unpack that. The European Court of Human Rights has said that it needs to look at how life in society has developed since the court was established in the middle of the last century. The court cannot be a fossil; it has to relate to developments in the world and in the region. The court is saying that where troops of any country, including the UK, are engaged in military action outwith their territory, not when they are in combat but when they have somebody in custody who is in effect being detained under the control of that state—the UK in this instance—the European convention on human rights should apply. Why should it apply? So that if there are any credible allegations that a person who is in custody is being tortured or killed, there should be an investigation by the home state. Is that sacrilegious? Is that something that is completely beyond the pale? The flip side of that decision by the European Court of Human Rights is that any soldier who is in combat—including any Scottish soldier or any soldier from anywhere in the UK in the armed forces—and who is given inadequate equipment for protecting his life and is therefore at an unnecessary risk of losing his life has the protection of the European convention on human rights. There is an obligation and an accountability on the Ministry of Defence to ensure that, when it equips soldiers to go into combat, they are properly equipped and, as far as possible, their lives can be protected. That means that the victims in the UK—the families whose sons, brothers and fathers have been killed in combat unnecessarily as a result of the UK Ministry of Defence’s negligence—have protection; they can demand an inquiry and measures can be taken to ensure that no one’s life is lost unnecessarily. It is not that difficult to dispel some of the mythology that is created. The armed forces is clearly a hot issue and I would welcome public debate on that to raise the level of understanding of the vitality of the convention in intervening in that area.
In the same item of business
The Convener
SNP
Welcome back to this meeting of the European and External Relations Committee. Because of the earlier evidence sessions, we are running a wee bit over time. ...
Hanzala Malik (Glasgow) (Lab)
Lab
I am the deputy convener.
Dr Tobias Lock (University of Edinburgh)
I am from the University of Edinburgh law school.
Willie Coffey
SNP
I am the MSP for Kilmarnock and Irvine Valley.
Simon Di Rollo QC (Faculty of Advocates)
I am from the Faculty of Advocates.
Roderick Campbell
SNP
I am an MSP for North East Fife and I refer to my register of interests, which declares that I am a member of the Faculty of Advocates.
Professor Alan Miller (Scottish Human Rights Commission)
I am the outgoing chair of the Scottish Human Rights Commission.
Adam Ingram
SNP
I am the MSP for Carrick, Cumnock and Doon Valley.
Paul Brown (Campaign for Housing and Social Welfare Law)
I am from the Legal Services Agency, but I am here representing the campaign for housing and social welfare law.
Naomi McAuliffe (Amnesty International)
I am from Amnesty International.
Anne McTaggart
Lab
I am an MSP for Glasgow.
Michael Clancy (Law Society of Scotland)
Good morning. I am from the Law Society of Scotland.
The Convener
SNP
Professor David Mead joins us for this evidence session via a very strong videolink—nice to have you here, Professor Mead. The etiquette for the round-table...
Professor Miller
Sure. Thank you, convener. I took part in an evidence session with the committee on human rights a few weeks ago, so I do not think that anything that I will...
The Convener
SNP
Thank you very much. Professor Mead, obviously we in this room have a keen interest in the Human Rights Act 1998 and its impact on Scotland. Perhaps you have...
Professor David Mead (University of East Anglia)
Yes. I am certainly not qualified to speak about anything Scottish, but I have a couple of general points to make about the Human Rights Act 1998. The act i...
The Convener
SNP
Okay. Thank you very much. I know that Amnesty International has raised particular issues. Does Naomi McAuliffe want to come in?
Naomi McAuliffe
I thank the committee again for the invite to expand on our written evidence. It is certainly timely for us to look at the issue, given the House of Lords co...
Adam Ingram
SNP
You made a point about misinterpretation and misunderstanding of what the act is all about. Some of what we are hearing from Westminster in particular is tha...
Professor Miller
I would be happy to try to answer that question. It is quite clear from the press and media campaign over the past few weeks on the armed forces issue and fr...
The Convener
SNP
Simon di Rollo, I think that the Faculty of Advocates has produced evidence, which perhaps backs up or gives a different insight into the issue.
Simon Di Rollo
I agree with Alan Miller. As far as the faculty is concerned, we see no justification for the proposition that the court is guilty of mission creep, if that ...
Roderick Campbell
SNP
The other side of the coin is the concept of the margin of appreciation. Will Simon di Rollo—or any of the other witnesses—comment on how that concept has be...
The Convener
SNP
Tobias Lock, do you want to come in on that?
Dr Lock
I will try, because the issues are related. The allegation of mission creep comes from interpretations of the convention through a modern understanding. For ...
The Convener
SNP
Paul Brown will have another perspective on the issue.
Paul Brown
To go back to the question of the armed forces, it is important to bear it in mind that the European convention on human rights legal committee was chaired b...
The Convener
SNP
That is an important issue. I will go back to Professor Mead and then ask Michael Clancy to pick up on some of those points. Professor Mead, in your written...
Professor Mead
The term “worthy victims” is not mine; it is used in media studies to denote people who are portrayed so as to gain sympathy. The problem that I have tried t...
The Convener
SNP
That leads on to the points that Paul Brown made about the understanding of the impact of the proposals on things such as a Scottish constitution. We obvious...