Protecting Fundamental Human Rights

Earlier this week, Scottish Liberal Democrat peer Jim Wallace gave a speech to the Legal Services Association on protecting human rights - and the problems in Tory plans to scrap the Human Rights Act.

Jim was the first minister at any level of government in the UK to be on the wrong end of the decision under the Human Rights Act. This International Human Rights Day, find out why he thinks this ground-breaking legislation is so important:

I am delighted to be able to join you this morning at this 26th Legal Services Agency Conference. I wish to speak to the theme of the Conference, Protecting Fundamental Rights in Scotland, and I’ve specifically been asked to address the issue of forthcoming proposals in the UK Parliament on human rights legislation. Looking at today’s programme and the work of the LSA, we are readily reminded that “human rights” isn’t some abstract concept worthy of academic or legal discussion, but rather a living body of law with practical relevance to the lives of ordinary, and often vulnerable people.

When I was asked to speak, it might have been reasonably anticipated that we would have seen the colour of the UK Government’s proposals, but, as many of you will have noted, the Lord Chancellor told the House of Lords Constitution Committee last week that his consultation paper will not be published until after the New Year.

The fact that we are having a discussion at all on the issue follows on from the Conservative Party manifesto which said,

“We will scrap Labour's Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK.”

It has been suggested that the commitment was made with an eye to a trade off in any post-election coalition talks. A Tory majority meant that the talks never happened, and so the Conservatives were left with a policy which, when initially published, the former Conservative Attorney General, Dominic Grieve, described as containing ‘a number of howlers’. It’s maybe not surprising that it is taking them some time to figure out what they meant. But delay should not be a reason for those of us who value our human rights culture and have been supportive of the incorporation of the ECHR into our domestic law through the 1998 Human Rights Act to be any less vigilant.

For my part, I spent decades as a Liberal and Liberal Democrat candidate and MP, supporting campaigns to incorporate the European Convention on Human Rights into our domestic law. “Bringing Rights Home” was our call; and so I understandably welcomed the passing of the Human Rights Act 1998. What never occurred to me during all the years of campaigning was that I would be the first government minister in the UK to be on wrong end of a decision under that Act. Yet on 11th of November 1999 that’s exactly what happened.

On that day, the Court ruled, in Starr & Chalmers v Ruxton that Temporary Sheriffs were unable to provide an independent and impartial tribunal and, as a result, as Justice Minister, I was forced to suspend every temporary Sheriff overnight.

Let’s not pretend. At the time,I would much rather that the case had been won. Losing put significant pressure on resources and made, for a time, the operation of our sheriff courts more difficult.

But of course in the cold light of day - the Court was right.  The system had come to rely over much on the use of such temporary judges and the Appeal Court found that given the Lord Advocate’s key role in the appointment, dismissal and crucially the reappointment or not of temporary sheriffs, and his role as being head of the public prosecution system in Scotland, such sheriffs could not be regarded as sufficiently independent of the Executive to meet the requirements of Article 6 that an accused have a fair hearing before an “independent and impartial tribunal”

What was happening was wrong and, because of the Human Rights Act, it was put right.

For all the difficulties this decision caused me, officials and indeed the public, I would far rather live in a country where there is such a human rights check over decisions and actions of Ministers, than in a country where Ministers and the executive can ride roughshod over basic human rights.

It cannot be repeated too often – which of us would wish to live in a country where the government always wins its court cases?

As a Liberal Democrat, I am instinctively suspicious of Government.  I believe that the state has the power to improve people’s lives; but it also has the power to damage them.  Such power should not operate in a vacuum- there must be a check on the ability of state to wield its power, even when its actions are of the best of intentions, and to protect individual citizens against the arbitrary use of state power.

Unease within government on human rights issues is nothing new.

In the summer of 1950, the Labour Cabinet discussed a memorandum by the Foreign Office Minister, Kenneth G Younger about the embryonic European Human Rights Convention. He had raised a concern about whether the Convention should allow the right of individual petition to the Court. His thoughts illustrate how far the culture of human rights has come. He said:

"The proposal to allow individual petitions was unacceptable to us because in the present state of international relations it appeared likely that the system would be abused for political purposes and because there appeared to be a danger that it would be misunderstood among the backward people of the Colonies as suggesting that the ultimate source of authority in those territories resided elsewhere than in the Crown." 

The Labour Attorney General of the day, Sir Hartley Shawcross, thought there was a risk that the march of Convention rights might not stop – there was, he noted, a "danger that a Conservative Government might accept the jurisdiction of the court".  However, it was the Labour Party itself, on returning to power in the 1960s which eventually allowed individual petition to Strasbourg. 

And I fervently believe that an important aspect of our liberty and democracy is the ability to challenge the Government.

In the aftermath of the war against fascism and in the face of the spread of communism, British politicians and lawyers were to the fore in drafting the European Convention on Human Rights. But it took the 1998 Act to allow people in Britain to use the Courts of the United Kingdom to challenge the decisions of the British Government. That is something we should cherish and uphold.

As I said at the outset, the work of the LSA illustrates the reality of the Convention rights – well removed from the scares conjured up by certain politicians and tabloid (and not so tabloid) newspapers. The Convention, after all, safeguards rights which the majority of people take for granted or consider to be self-evidently worthy of protection.

The Human Rights Act and the European Convention on Human Rights have been instrumental

  • in preventing local authorities from snooping on law-abiding families,
  • in removing innocent people from the national DNA database,
  • in preventing rapists from cross-examining their victims in court,
  • in defending the rights of parents to have a say in the medical treatment of their children,
  • in holding local authorities to account where they have failed to protect children from abuse,
  • in securing proper support from a local authority for a child with Down’s syndrome, and his family,
  • in helping a mother who had suffered mental health problems and had her child taken into care challenge the local council,
  •  in protecting the anonymity of journalists' sources,
  • in enabling the Sunday Times to expose the thalidomide scandal,
  • and in upholding the rights of elderly married couples to be cared for together in care homes,

Just some examples of what human rights mean in practice, and what our Convention Rights allow us to protect when the state over reaches.  And they are a reflection, I believe of core British or Scottish values

So the question is – what values would a Conservative Bill of Rights enable or secure which are not already enshrined in our Human Rights Act, through its incorporation of the ECHR. Michael Gove has suggested, for example, the right to jury trial. But whilst cherished in England, such a right would appear to be at odds with the discretion of the Lord Advocate in Scotland.

The Lord Chancellor has also suggested that one reason for delay is to consider the future role of the Supreme Court and the possibility of it taking on a role of a Constitutional Court. As someone who ultimately wants a written constitution and a federal settlement, I see a Constitutional Court being an inevitable part of the constitutional architecture. But I don’t detect any real enthusiasm in this government for either a written constitution or federalism.

I rather suspect that they want to reinforce the fact that the Supreme Court is not bound by Strasbourg precedence. But section 2 of the Human Rights Act only enjoins a court or tribunal to

take into account any—

(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights”

Most practitioners would agree that recently, the Supreme Court has not appeared to feel as bound by Strasbourg precedent; and equally important, a judicial dialogue between the two courts has developed which has probably resulted in better mutual understanding, not least in respect of the legal traditions of the UK; or, for that matter, in respect of other countries too.

The government’s apparent angst about Strasbourg suggests that their real problem is not with the Human Rights Act, but with the fact that it gives UK citizens a pathway to the Strasbourg Court: the ability to challenge, in Europe no less, a decision made by the Government.

But because of Article 35 of the Convention, the right to take a case to Strasbourg would not be revoked by the repeal of the Human Rights Act. Citizens were taking cases to Strasbourg before 1998. The whole point of the Act was to make convention rights more readily justiciable in our domestic courts, and indeed, I’ve been told that the government does not intend to cut off any redress by appeal to Strasbourg.

But what of the government’s view on Article 46 of the Convention which imposes a binding international obligation on all States parties to abide by final judgments against them?

Again, repeal of the Human Rights Act would not alter such an international obligation undertaken by the United Kingdom.

Disturbingly, however, when the new Ministerial Code was slipped out in October, the wording in the previous edition, which referred to “the overarching duty on Ministers to comply with the law including international law and treaty obligations,” was changed to a duty simply to comply with “the law”.

The Cabinet Office and Ministers have tried to suggest that the change doesn’t make any difference, which begs the question, “Why do it?” The former Treasury Solicitor, Sir Paul Jenkins, has commented in a letter to the Guardian,

“It is disingenuous of the Cabinet Office to dismiss the changes to the ministerial code as mere tidying up.

 “Whether the new wording alters the legal obligations of ministers or not, there can be no doubt that they will regard the change as bolstering, in a most satisfying way, their contempt for the rule of international law.”

As stated in the Conservative manifesto, the Government wishes to “curtail the role of the European Court of Human Rights”.  Against that background one might be forgiven for speculating that the Prime Minister is seeking a loophole to suspend our obligations to the ECtHR – with all the consequences that has for a government which protests the importance of the rule of law. But even if the Cabinet Office is to be taken at his word, what kind of signal does it send out to the international community?

There is often much talk about Britain’s soft power as an influence for good in the world. But the opposite side of that coin is that if we are backsliding, we become an influence for injustice and intolerance. Only last week, Russian MPs voted to expand the law on the right of their Constitutional Court to annul rulings of the European Court of Human Rights (ECHR) to all international bodies for the protection of human rights.

Do we really want to give such actions justification, by allowing them to take an encouraging lead from the United Kingdom?

Closer to home, there is also a need to consider the domestic consequences of the ill thought through proposals to scrap the Human Rights Act, not least in relation to the devolved institutions in the UK.

Northern Ireland has a particularly important relationship with the Human Rights Act and the ECHR. The Good Friday Agreement enshrined a fundamental role for the ECHR in moderating the values of plurality and equality in Northern Ireland. Human rights protections were a central feature of the peace process – not something that can just be brushed aside.

In addition, there are international implications specifically in relation to the UK’s relationship with Ireland. The Agreement was incorporated as a treaty between the UK and Ireland and lodged with the UN. Paragraph 2 of the Rights, Safeguards and Equality of Opportunity section of the Agreement states:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”

This commitment was given legislative effect through the Human Rights Act. The UK’s international standing and its relationship with Ireland could suffer grievously if its obligations under the Good Friday Agreement were not observed.

Let us also speculate whether the Government’s plans could be stopped in the Scottish Parliament or Welsh Assembly.

The Scotland Act and the Government of Wales Act define the legislative and executive competences of the respective devolved institutions by reference to Convention Rights as defined in the Human Rights Act. I well recall at the time when the Human Rights Bill was going through Parliament in parallel with the Scotland Bill, Donald Dewar was very keen to ensure that the Convention rights were enmeshed in the working of the new Scottish Parliament, and that Scotland’s newly created devolved institutions would be founded on the basis of upholding human rights.

Earlier this year, at the launch of the Bingham Centre for the Rule of Law’s Independent Commission report on ‘Ways Forward for the United Kingdom’, Professor Adam Tomkins, Professor of Public Law at Glasgow University speculated whether a legislative consent motion would be needed in the Scottish Parliament to repeal the Human Rights Act; but he appeared to take a clear view that if any new British Bill of Rights contained new rights which impinged upon the exercise of the Scottish Parliament’s legislative powers or Scottish Ministers’ executive powers a LCM would be needed.

Could we have a position where citizens’ rights in Scotland are different depending on whether the public authority exercises devolved or reserved responsibilities? A recipe for a real dog’s breakfast! And what a reflection of an ill-conceived and ill thought-out policy!

For however important it is that there is proper recognition of the distinctiveness of our Scottish legal jurisdiction and law, there is also merit in ensuring a consistency of basic human rights across the country. That, generally, was the conclusion reached by two working groups who looked at the issue of ‘devolution issues and the Supreme Court in 2011. The Scotland Act 2012 accordingly provided for “compatibility issues” arising out of Convention obligations or EU law to be referred to the Supreme Court for a determination of the issue in question, before remit to the relevant Scottish court for disposal.

Four years on, it’s sometimes difficult to remember that the reaction of SNP Scottish Ministers to decisions of the Supreme Court was not dissimilar to that of some Tory UK Ministers to decisions of the Strasbourg court. The absence of any recent furore may mean that the new legislation has led to a more equable arrangement or simply that cases such as Cadder or Nat Fraser haven’t arisen in more recent times. Whatever, the legislation requires the Secretary of State to instigate a review of the operation of the new system ‘as soon as practicable’ after the third anniversary of the relevant section coming into force, which, by my reckoning, is 22nd April next year. I shall await its conclusion with interest.

There is, of course, a Scotland Bill currently going through Westminster. Its first committee session in the House of Lords is tomorrow. For the most part, the Bill seeks to translate the recommendations of the Smith Commission into legislation.

One provision on which I shall table probing amendments is the section relating to Equalities law. The Smith Commission said:

“The Equality Act 2010 will remain reserved. The powers of the Scottish Parliament

will include, but not be limited to, the introduction of gender quotas in respect

of public bodies in Scotland. The Scottish Parliament can legislate in relation

to socio-economic rights in devolved areas.”

It is the view of the Equalities & Human Rights Commission that greater clarity is required in the Bill. This is particularly the case in relation to ensuring that the Scottish Parliament can increase protection from discrimination, harassment and victimisation in the functions of devolved Scottish public bodies, but cannot modify to reduce the protections provided by the 2010 Equality Act. And in seeking to ensure that the Smith Commission proposal on gender quotas is honoured, it is necessary to ensure that it cannot go beyond the positive action permitted by EU law.

In addition, the Bill also includes provision which will allow Scottish Ministers to commence the socio-economic duty on public bodies within devolved competence at a time of their choosing.

So at a time when we are on guard for provisions which might impact negatively on human rights, it is worth recalling that there are areas where positive progress is being made.

But what of human rights close to home here in Scotland. We are fortunate in having the Scottish Human Rights Commission, which I managed to get the Scottish Cabinet to commit to at the last meeting I chaired as Acting First Minister, after the resignation of Henry McLeish. Under the leadership of Professor Alan Miller it has been a champion and safe-guarder of our human rights culture in Scotland.

The Scottish Government talks a good game on human rights, but I’m always conscious that at the final stages of the Bill to establish the SHRC, the then SNP opposition joined forces with the Conservatives in voting against the passing of the Bill.

So while the concerns and uncertainty over the future of the Human Rights Act has necessarily focussed attention on the UK Government, it is also necessary to monitor the record of the Scottish Government.

  • In extending the franchise for Scottish elections to 16 & 17 year olds, the Scottish Government declined to give the opportunity to vote to at least some of the 100 people in that age group in young offenders institutions.
  • Efforts by my colleague, Alison McInnes to raise the age of criminal responsibility to 12 have been rejected by the Scottish Government.
  • In August, an independent ministerial advisory group led by human rights lawyer John Scott QC confirmed “non-statutory stop and search lacks any legal framework and is of questionable lawfulness and legitimacy, with poor accountability”. It took months of campaigning before the Justice Committee and the Scottish Government supported a plan to end this discredited tactic.
  • Interception of Communications Commissioner’s Office recently held that Police Scotland had breached communications law by failing to secure judicial approval for interceptions relating to journalists’ sources on five occasions, “adversely affecting” four individuals. The Commissioner identified “reckless” failures and concluded they had “failed to satisfy adequately the requirements of necessity and proportionality or to give due consideration to Article 8 or Article 10 of the European Convention on Human Rights (ECHR).”
  • The Scottish Government has proposed the widespread use of unique ID numbers and extending access to the NHS central register to 120 bodies, including the Botanic Gardens, Quality Meat Scotland and the body which manages canals. In spite of a consultation and repeated questions, Scottish Ministers have not set out how they intend to proceed, if at all.

I mention these examples to underline that the price of liberty really is eternal vigilance and all governments should be held to account.

In conclusion, at one level the Human Rights Act is simply a vehicle for bringing Convention rights into our domestic law. But it has become more than that. It has given rise to an important body of human rights jurisprudence. It is widely seen as symbolic of our country’s commitment to openness, tolerance and the rule of law to which even governments are subject. 

The core pillars of human rights are their universality and indivisibility. They are there to stop the state just doing whatever it feels like without being called to account. At Westminster and at Holyrood, I hope there will be sufficient of us determined not to stand by and watch them diminished.