Chamber
Plenary, 02 Mar 2000
02 Mar 2000 · S1 · Plenary
Item of business
European Convention on Human Rights
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's debate if it were not for the intervention of lawyers.
Having said that, I would like to focus on the issue of a human rights commission, because I hope that something positive will come out of the problems that we have had with the incorporation of the ECHR into Scots law. Although this is the first time that we have debated the issue in Parliament, it is by no means a new issue. For some time, a number of organisations have pressed for the establishment of a human rights commission.
I will deal briefly with the Conservative motion. Although I welcome the suggestion that the Executive should consider the benefits of a human rights commission, the idea that that commission should be responsible solely for providing
"expert advice and guidance on the impact of the ECHR"
is extremely limited. As I will show later in my speech, the role of a human rights commission is much wider than that.
The first human rights commission in western Europe was recently established in Northern Ireland. The Irish Republic is not far behind—its Human Rights Commission Bill is due to be passed in the next two months, and in the next year it expects to have a human rights commission up and running. There are similar commissions throughout the world, notably in Canada, Mexico, South Africa, India, Indonesia, the Philippines, Australia and New Zealand. All those countries have established human rights commissions to date.
There is a perception that human rights commissions are associated with emerging democracies, particularly countries where there has been considerable civil unrest and some social upheaval. The human rights commission in South Africa is a good example of that. In such countries, human rights commissions play an important role in developing a human rights ethos and in healing the divisions that caused the problems in the first place. In other countries that are considered to be more stable democracies, human rights commissions play an extremely important role in considering issues of common law and in ensuring that human rights are both protected and promoted. Those human rights commissions have both a proactive and a monitoring role, to ensure that human rights are not violated.
The Minister for Justice said that he would like to hear more about how a human rights commission would work and what its structure would be. Considerable work has already been done on that, particularly in relation to the Paris principles, which were drafted in 1991 and endorsed by the United Nations General Assembly in 1993.
The Paris principles are not specific on the model for such a commission—we do not have to dwell on that—but are clear about the principles that would underpin any human rights commission. The principles state that the key role of such a commission is both to promote and to protect human rights. They leave considerable discretion to the nation state with regard to the model, but say that the commission not only should be able to ensure that human rights are promoted and protected, but should be provided with powers to recommend to Government that general and specific violations be investigated and reported on. Under the principles, the commission must be independent of the Government, to ensure that its position in undertaking that role is not compromised.
I welcome the fact that the Executive is open to considering the benefits of a human rights commission and I hope that it will pay regard to the Paris principles, to ensure that any human rights commission is truly independent of the Government, so that it can promote human rights effectively.
The Human Rights Act 1998 will be implemented this October; its provisions are considerably wider than those of any other anti-discrimination legislation that deals with race, religion or disability. We have commissions to deal with those specific areas of discrimination. Given that, a massive vacuum has been left in relation to human rights in Scotland and that vacuum must be filled. The most effective way of achieving that would be by establishing a human rights commission in Scotland. To Hugh Henry, I would say that we are not ahead of the game, but we could be if we established such a commission in Scotland.
Having said that, I would like to focus on the issue of a human rights commission, because I hope that something positive will come out of the problems that we have had with the incorporation of the ECHR into Scots law. Although this is the first time that we have debated the issue in Parliament, it is by no means a new issue. For some time, a number of organisations have pressed for the establishment of a human rights commission.
I will deal briefly with the Conservative motion. Although I welcome the suggestion that the Executive should consider the benefits of a human rights commission, the idea that that commission should be responsible solely for providing
"expert advice and guidance on the impact of the ECHR"
is extremely limited. As I will show later in my speech, the role of a human rights commission is much wider than that.
The first human rights commission in western Europe was recently established in Northern Ireland. The Irish Republic is not far behind—its Human Rights Commission Bill is due to be passed in the next two months, and in the next year it expects to have a human rights commission up and running. There are similar commissions throughout the world, notably in Canada, Mexico, South Africa, India, Indonesia, the Philippines, Australia and New Zealand. All those countries have established human rights commissions to date.
There is a perception that human rights commissions are associated with emerging democracies, particularly countries where there has been considerable civil unrest and some social upheaval. The human rights commission in South Africa is a good example of that. In such countries, human rights commissions play an important role in developing a human rights ethos and in healing the divisions that caused the problems in the first place. In other countries that are considered to be more stable democracies, human rights commissions play an extremely important role in considering issues of common law and in ensuring that human rights are both protected and promoted. Those human rights commissions have both a proactive and a monitoring role, to ensure that human rights are not violated.
The Minister for Justice said that he would like to hear more about how a human rights commission would work and what its structure would be. Considerable work has already been done on that, particularly in relation to the Paris principles, which were drafted in 1991 and endorsed by the United Nations General Assembly in 1993.
The Paris principles are not specific on the model for such a commission—we do not have to dwell on that—but are clear about the principles that would underpin any human rights commission. The principles state that the key role of such a commission is both to promote and to protect human rights. They leave considerable discretion to the nation state with regard to the model, but say that the commission not only should be able to ensure that human rights are promoted and protected, but should be provided with powers to recommend to Government that general and specific violations be investigated and reported on. Under the principles, the commission must be independent of the Government, to ensure that its position in undertaking that role is not compromised.
I welcome the fact that the Executive is open to considering the benefits of a human rights commission and I hope that it will pay regard to the Paris principles, to ensure that any human rights commission is truly independent of the Government, so that it can promote human rights effectively.
The Human Rights Act 1998 will be implemented this October; its provisions are considerably wider than those of any other anti-discrimination legislation that deals with race, religion or disability. We have commissions to deal with those specific areas of discrimination. Given that, a massive vacuum has been left in relation to human rights in Scotland and that vacuum must be filled. The most effective way of achieving that would be by establishing a human rights commission in Scotland. To Hugh Henry, I would say that we are not ahead of the game, but we could be if we established such a commission in Scotland.
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...