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Plenary, 02 Mar 2000

02 Mar 2000 · S1 · Plenary

Item of business

European Convention on Human Rights

Cunningham, Roseanna SNP Perth Watch on SPTV

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 that the Conservatives would accept the truth that such incorporation is widely welcomed in most countries. We share, however, the Conservatives' concern about the preparations that have been made not just by this Executive, but by the Westminster Labour Administration from 1997 to 1999. Once the decision was taken to go ahead with incorporation, it was their responsibility to minimise its likely impact.

ECHR was incorporated into Scots law by way of the Scotland Act 1998. During the various stages of the debate on the Human Rights Bill in Westminster in 1998, the implications of that were discussed. From what I remember, those discussions tended to centre around very specific cases that were put to us theoretically by concerned organisations. We then tried to discover whether their fears were justified.

One such debate focused on an issue related to the Church of Scotland in particular. I do not think that members really need to know the details of the debate; however, they might be interested in the comments of the then Secretary of State for Scotland, Donald Dewar, who is of course now our First Minister. On 20 May 1998, he said:

"The European convention on human rights has been available for use since 1953. I understand that it may be a little easier to get to the courts once the convention has been imported into the ambit of the domestic courts, but human rights cases are often contentious and difficult cases. The fact that, in the past 45 years, no one has gone to the European Court of Human Rights and tried to challenge my interpretation and understanding of the situation"—

relating to the Church of Scotland—

"is of some significance . . . It is a little bit . . . the case of the dog that did not bark, but, if we are going to have these problems, I think that we would have at least a few yaps in those 45 years, and they have been conspicuous by their absence.

"I am not terribly impressed . . . with the idea that suddenly the floodgates will open, when no one can point me to any single change other than the forum in which the cases may be heard that will result from the Bill."—[Official Report, House of Commons, 20 May 1998; Vol 312, c 1067-68.]

Of course, hindsight is great. If nothing else, perhaps Donald Dewar's relaxed attitude to the effect of a change in forum will have undergone a radical rethink. No one could argue that the assumptions on which incorporation were presumably based were rather wide of the mark. However, there were voices even then, and in the run-up to the elections in 1999, that cautioned a more constructive approach to human rights and the challenges posed by the new dispensation.

There were also warnings about potentially adverse decisions. Those warnings came quite early and included warnings about the ruling on temporary sheriffs, which was one of the most controversial rulings. The decision was widely expected and widely predicted to go against the Lord Advocate. Yet, when the inevitable happened, it seemed that absolutely no contingency plans were ready to be implemented. That was the real failure and it has had a direct impact on the workings of the Scottish courts.

The Executive has said that rulings under ECHR have not caused chaos in our courts, but that depends on how chaos is defined. The result of the ruling on temporary sheriffs has been that, in many jurisdictions, chaos can be avoided only by rescheduling civil cases, as criminal cases work to a much stricter timetable. To argue that those who seek civil redress in the courts should get a poorer service is not good enough.

In some of our courts, the situation is little short of scandalous. David McLetchie referred to the waiting times for civil cases in some parts of Scotland. In Stirling, Fort William and Banff, waiting times have more than doubled. In other places, such as Perth and Kirkcaldy, waiting times have gone up markedly. I remind members that civil cases include cases involving custody and access and debt and reparation.

The situation is unacceptable. The Executive may not call it chaos, but I wonder how bad things will be allowed to get. I am contacted regularly by solicitors in various parts of the country who advise me that things are getting worse, not better. An ounce of preparation might have avoided some of the problems.

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Plenary, 02 Mar 2000

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