Hansard

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 is not about withdrawal from the European convention on human rights—it is about the legal relationship between ECHR and our system of law and institutions of government.

Of course we support the aim of protecting and promoting the human rights of United Kingdom citizens in line with internationally agreed standards. We are certainly not advocating that we should withdraw, as a signatory, from the European convention. After all, the UK was one of the 10 original signatories to the convention in 1950, and the convention has been binding on our nation since it came into full effect in 1953. Our accession to ECHR is not, and never has been, the issue. The convention has been supported by successive Labour and Conservative Governments during the past 50 years.

However, the Conservative party maintains that, before the Human Rights Act 1998 and the Scotland Act 1998 with its human rights provisions were passed, the way in which our domestic law related to ECHR was infinitely preferable to the situation today.

Under the old system—if I can call it that—British citizens could take cases to the European Court of Human Rights in Strasbourg to obtain rulings based on the convention. A successful ruling that established that the UK was in breach of an article of the convention did not automatically overrule UK law. Instead, it was for the UK Government and Parliament to remedy the situation and to take steps to bring UK law into line with the terms of the ruling as an interpretation of the convention.

Over the years, a number of cases resulted in decisions being handed down by the European Court of Human Rights that have had a significant impact on our law, such as those on the closed shop, corporal punishment in schools, telephone tapping, sentencing policy and immigration.

Although the Human Rights Act 1998 does not, strictly speaking, incorporate the convention into domestic law, the act is the vehicle through which further effect will be given to the convention rights. That means that the rights that are referred to cannot be amended or repealed in future. This is not a question of courts being given the power to strike down legislation; what will happen is that ministers will have to state whether they believe that proposed legislation is compatible with convention rights and our courts may declare that part of a law is incompatible with a convention right.

In Scotland, sections 29(2) and 57(2) of the Scotland Act 1998 have already constrained this Parliament to act within the confines of the convention. We have been the guinea pigs on which the Government's theories about how best to protect human rights in the UK were tested. Sadly, the results so far are not encouraging, for which Her Majesty's Government must take responsibility—it seems to have had no idea of the consequences of its actions or the course that it was setting in train.

There have already been a number of damaging effects on our legal system in Scotland. For example, 126 temporary sheriffs have been sacrificed on the altar of the ECHR because, back in November, three appeal court judges ruled that those sheriffs were not independent as required by the convention. That was because they were appointed by the Lord Advocate, who is both a Government officer and the chief prosecutor in Scotland—something that was deemed to undermine the independence of judges appointed by him.

That was bound to have huge repercussions for our courts. Before the Human Rights Act 1998 and the Scotland Act 1998 came into effect, in the event of an adverse decision from Strasbourg on temporary sheriffs, there would have been time for a measured and considered response by Parliament and the Executive. Instead, this was a case of hitting the panic button and fishing out the CVs in the pending tray.

The Deputy First Minister and Minister for Justice has still to come up with a full solution to the problems that have been caused by that decision. He has had to appoint 10 more permanent sheriffs and I understand that a further six full-time posts have been advertised. That is a bit like sticking one's finger in the dyke after the dam has burst, reacting to events rather than being in charge of them, which is the hallmark of the Executive.

Our justice system has been thrown into chaos. The waiting period for cases coming to court in Perth has increased from 17 weeks to 22 weeks for criminal cases and from 10 weeks to 15 weeks for civil cases. In Stirling, things are even worse, with delays increasing from 11 weeks to 26 weeks for criminal cases and from 10 weeks to 21 weeks for civil cases. We must be able to challenge the whole system of judicial appointments in Scotland; our judges are appointed by the First Minister on the recommendation of the Lord Advocate, who is still the head of the prosecution service.

If press reports are to be believed—and we occasionally treat them with a degree of caution—the First Minister seems keen to preserve the status quo. However, the Deputy First Minister and Minister for Justice has indicated his support for an independent commission to appoint judges, which is in line with the commitment made in his party's election manifesto. I would be interested to know whether that is a manifesto commitment that he intends to honour, or whether it is just another piece of Liberal election rhetoric. If yesterday's performance is anything to go by, perhaps two thirds of the Liberal Democrat parliamentary party will vote to keep Mr Wallace in a job, whatever that takes, a third will vote for what they believe in, and Keith Raffan will forget how to vote at all. As for the Conservatives, we believe that an independent commission would certainly be preferable to Lords Advocate being able to recommend their own promotion when the going gets a little tough.

The ECHR has recently had a significant effect on road traffic law. Section 172 of the Road Traffic Act 1988 compels the owner of a car, on pain of prosecution, to reveal who was driving the vehicle at the time of an offence. Although I acknowledge that the decision in question is currently under appeal, that provision of the act has so far been held to be in breach of the right to silence. Again, our legal system could be thrown into disarray, as an unsuccessful appeal will make it impossible to prosecute many motoring offences.

At a time when Her Majesty's Government and the Executive have just announced new road safety measures to curb irresponsible driving to reduce the toll of death and injury on our roads, it is bizarre to say the least that one of the legal weapons available to the police to uphold the law in that area should be under threat of ECHR decommissioning.