Committee
European and External Relations Committee 04 February 2016
04 Feb 2016 · S4 · European and External Relations Committee
Item of business
Human Rights
Dr Lock
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I will try, because the issues are related. The allegation of mission creep comes from interpretations of the convention through a modern understanding. For example, on children born out of wedlock, perhaps in the 1950s it would have been perfectly acceptable to disadvantage them compared with children who were born to married parents. That is no longer acceptable in society. That is not to say that the European Court of Human Rights does not pass judgments that are sometimes wrong or that we might not agree with, but every court does that. As a highest court, it is in the very nature of things that it must decide difficult cases. The cases must be decided, one way or another, and somebody will always disagree with the outcome. The European Court of Human Rights, through its methodology, tries to justify its interpretation. It does not just say, “We here in Strasbourg think that things have changed and we have to give certain rights to groups that wouldn’t have had rights before.” The court looks at what it calls the consensus method—it looks at how the law in the 47 countries that make up the Council of Europe has evolved, including internationally, and at how society on the ground has moved on. It might say, “We can see that there’s a European consensus on this.” For example, in Turkey, it was not allowed for Turkish women to keep their maiden name after getting married. Turkey was the only country in the Council of Europe that did not allow that right to women. The court said, “Look, guys, you have to move with the times. We can justifiably say this is a violation of article 8 of the right to family life.” It could say that because everyone else has moved on in that sense. The flip side to that is the margin of appreciation, where there is no such consensus and where European countries do not agree. A current example is same sex marriage. In Austria and other countries, cases have been brought to the European Court of Human Rights where same-sex couples have said that they are being denied same-sex marriage and that they want to be given that as part of their human rights. The court has said—and a lot of people have criticised it for doing so—that society has not moved on that far yet. In some parts of Europe that is true, but in other parts it is not true. Therefore, member states have a margin of appreciation, and they can still deny same-sex couples the right to get married and to have equal status to different-sex couples. 10:30
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...