Chamber
Plenary, 02 Mar 2000
02 Mar 2000 · S1 · Plenary
Item of business
European Convention on Human Rights
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 section 172 would have to have been taken directly to the European Court of Human Rights in Strasbourg, and if the court had ruled against UK law, Her Majesty's Government and Parliament would have had time to bring UK law into line in a measured and considered way. The problem with the current relationship, as I attempted to explain, is that, in the event of an adverse ruling by one of our own courts, immediate action is required, and we do not have time for a considered response. That is the crux of the issue and of the debate between us, although I accept that what Robert Brown said about 1988 and our obligation to comply with the convention provisions is correct.
The first piece of legislation to be passed by this Parliament was the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. Many are concerned that the act does not meet the procedural safeguards in article 5.4 of the convention. I will say no more about that, other than to invite the Minister for Justice in his response to advise Parliament on the current status of appeals pending in relation to that legislation, and whether he foresees any difficulties with ECHR arising in light of the procedures followed so far.
As well as the problems that have already come to light, there are a number of fundamental features of Scots law that could run into difficulties with ECHR compatibility. According to Professor Robert Black of the University of Edinburgh, our way of dealing with juvenile crime, the children's panel, breaches ECHR on two counts. First, it fails to provide legal aid and, secondly, there is a question mark over the independence of the role of the reporter in that system. A challenge could be made at any time, and it would have substantial financial, as well as legal, implications. That situation is made even more ludicrous by the fact that our children's panel system is widely admired throughout the world and is a model for others.
There are other problems. Some believe that the current situation in Scotland with regard to bail for murder is in breach of ECHR; because a sheriff does not have the power to authorise bail in such cases, it could be argued that bringing someone before a court without the necessary power to authorise their release on bail infringes their rights under article 5 of the convention.
Important police procedures may also fall foul of ECHR. In particular, placing people under surveillance may constitute a breach of article 8, which relates to respect for family and private life. There could also be a question mark over aspects of investigative procedures on fingerprinting, photographing and DNA sampling of suspects. Undercover operations could also be held to constitute entrapment, and so conflict with a person's right to a fair trial under article 6 of the convention.
I was interested to read an article in the March issue of Police, the magazine of the police service, in which a learned barrister in human rights law said that it was not inconceivable in certain circumstances for the use of handcuffs to be outlawed under ECHR. The article concluded:
"That there will be changes in policing there seems little doubt."
The first piece of legislation to be passed by this Parliament was the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. Many are concerned that the act does not meet the procedural safeguards in article 5.4 of the convention. I will say no more about that, other than to invite the Minister for Justice in his response to advise Parliament on the current status of appeals pending in relation to that legislation, and whether he foresees any difficulties with ECHR arising in light of the procedures followed so far.
As well as the problems that have already come to light, there are a number of fundamental features of Scots law that could run into difficulties with ECHR compatibility. According to Professor Robert Black of the University of Edinburgh, our way of dealing with juvenile crime, the children's panel, breaches ECHR on two counts. First, it fails to provide legal aid and, secondly, there is a question mark over the independence of the role of the reporter in that system. A challenge could be made at any time, and it would have substantial financial, as well as legal, implications. That situation is made even more ludicrous by the fact that our children's panel system is widely admired throughout the world and is a model for others.
There are other problems. Some believe that the current situation in Scotland with regard to bail for murder is in breach of ECHR; because a sheriff does not have the power to authorise bail in such cases, it could be argued that bringing someone before a court without the necessary power to authorise their release on bail infringes their rights under article 5 of the convention.
Important police procedures may also fall foul of ECHR. In particular, placing people under surveillance may constitute a breach of article 8, which relates to respect for family and private life. There could also be a question mark over aspects of investigative procedures on fingerprinting, photographing and DNA sampling of suspects. Undercover operations could also be held to constitute entrapment, and so conflict with a person's right to a fair trial under article 6 of the convention.
I was interested to read an article in the March issue of Police, the magazine of the police service, in which a learned barrister in human rights law said that it was not inconceivable in certain circumstances for the use of handcuffs to be outlawed under ECHR. The article concluded:
"That there will be changes in policing there seems little doubt."
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...