European Convention on Human Rights
Professor Alan Miller and Douglas Hamilton from the Scottish Human Rights Centre are here to give evidence on the European convention on human rights. We have been hoping for ages to obtain this evidence—it was first mentioned some time ago but, because of various difficulties, we have not been able to have it until today.
I welcome the witnesses to the committee. I hope that members received the briefing paper in advance. I ask either Professor Miller or Mr Hamilton to speak briefly to the paper, after which committee members will ask questions.
Professor Alan Miller (Scottish Human Rights Centre):
It is almost a ritual to say that it has been a pleasure to come and speak to whichever meeting one is invited to, but in this case it is a genuine pleasure. I was a modest bit-player in the consultative steering group and an advocate for a powerful committee system. It is nice to come along and have a minor part to play in what will become a powerful committee.
I am an academic and a practising lawyer, specialising in human rights. I would like to give a brief introduction to the relationship between the Parliament, its committees and the European convention on human rights and how that is likely to develop in the future. Before I do that, Douglas Hamilton will say a few words.
Mr Douglas Hamilton (Scottish Human Rights Centre):
I am the assistant director of the Scottish Human Rights Centre. I am based in the office and will be the main contact between the centre and the Parliament over the next few years.
He means that I am being overthrown and the younger generation is taking over.
There are three questions that need to be addressed. What is the relationship between the Parliament and human rights, why is that the case and how will the relationship develop?
Everyone is becoming aware that the Scotland Act 1998 requires the Parliament and the Executive to act compatibly with the European convention on human rights. That is written into the act and has become clear through various judgments, such as those relating to the Lord Advocate and temporary sheriffs. Less well known is the fact that the Scottish Parliament and the Executive have inherited a responsibility to apply a range of international human rights treaties that had been ratified by the UK. Every four to five years, a report on the application of those international human rights must be submitted to the United Nations. That is something that the Parliament and the Executive must take on board.
The relationship between the Parliament and human rights is important because of the Human Rights Act 1998, which comes into effect throughout the United Kingdom on 2 October 2000. All public authorities will have to comply with the European convention on human rights and all our courts and tribunals will have to take the convention into account. After 2 October, law in the United Kingdom will be made and applied within the framework of the European convention on human rights. That will apply to all local authority functions, a range of quangos, the police, prisons and so on. Rather than citizens taking the long and expensive road to Strasbourg to get a remedy for a breach of their human rights, they can get it in their own tribunals and courts. That is the thrust of the Human Rights Act 1998 and the Scotland Act 1998 made that a responsibility of the Parliament and the Executive.
Everyone is on a steep learning curve, although people may be at different points on that curve. Inevitably, there are many uncertainties, such as whether legislation that is passing through the Parliament has sufficient independent scrutiny from a human rights perspective. There may be too much reliance on the belief that the Executive has ensured that legislation is compatible with the ECHR and presents no problems in terms of human rights. The emergency mental health legislation will be tested in the courts soon to discover whether its retrospective effect is in breach of the convention.
There is some concern that much Scottish law and practice may fall foul of the European convention on human rights. There is unease about what is being done to pre-empt unnecessary legal challenges and about whether changes should be made now or whether it would be better to wait for the courts to tell everyone what must be done. There are also questions about what is coming round the corner. The temporary sheriffs decision has had widespread implications for the administration of our courts. Are local authorities prepared for October, when they must take all this on board? We will have to re-examine quickly the way in which children are treated in our justice system.
The Parliament and its committees will have to raise their game in order to accept the responsibility of being compatible with the European convention on human rights and the international treaties. The present arrangement, in which the Executive provides a one-line compatibility statement, which says that everything is kosher, does not go far enough. Legislation should not be introduced if it is not compliant with the convention, so the statement does not say much. There should be a thorough and comprehensive human rights impact assessment. That was one of the CSG recommendations; it is also a recommendation of the United Nations Human Rights Committee. The assessment should approach ECHR compatibility more thoroughly to enable the Parliament to take its own view on legislation.
The most important thing for the Equal Opportunities Committee to understand about the European convention on human rights is what is meant by proportionality. Proportionality is what gives the convention its life and allows it to grow and develop over the years. It means finding a balance between the individual rights of a citizen under the convention and the public interest, weighing up the balance and judging whether a piece of legislation strikes the right balance.
To reach that judgment, the committee needs more than a one-line statement. It needs to be aware of the European experience—what court decisions may have come from other jurisdictions—and what other international human rights treaties say. These are complex political and social considerations that cannot be reduced to technical or legal advice. The question of proportionality is critical to all decision makers. A human rights impact assessment should explore that question and ensure that MSPs were familiar with the issues and challenges that might be thrown up by the legislation so that they could decide where the balance between individual rights and the public interest should be struck.
The European convention on human rights is case driven: there must be a victim of the breach of the convention before it can be tested in court. Organisations such as Women's Aid or Victim Support cannot challenge the legislation—an individual victim must bring a challenge, although they can be supported by a voluntary organisation. The individual would have to be able to establish that they were treated differently from someone in a similar position because of their sex, race, nationality or other status. The convention is open-ended; it does not give an exclusive list of potential categories of discrimination and can therefore be applied more broadly than other anti-discrimination legislation in the UK.
Where there is discrimination, the Parliament and the Executive may be able to offer a justification for that discrimination—they may say that it is reasonable, objective and serves a legitimate aim, perhaps by advancing the role or status of women or of a national minority. There are limits within which a state or Parliament can discriminate if they have a reasonable justification for doing so.
The committee should also be aware that the ECHR is developing. Within a couple of years, a brand new right will be added to it—a much broader, free-standing, anti-discrimination right. At present, the ECHR is fairly weak on anti-discrimination. The convention can be used in that context only if some other right—the right to privacy or to a fair hearing, for example—within the convention is at issue and the individual is being discriminated against as they try to exercise that right. Protocol 12 will be introduced in the near future, which will mean that discrimination can be challenged outright—the status is unlimited.
The second part of a human rights impact assessment would have to take into account a range of international human rights treaties. What is being done in Scotland on matters such as discrimination against women, race, the United Nations Convention on the Rights of the Child, economic, social and cultural rights and so on will have a much higher profile.
A human rights impact assessment would help to raise the level of knowledge in the Parliament's committees. Public debate would also benefit. The public are a bit mystified about the convention and about what expertise should be relied on. An impact assessment would help the committees in scrutinising legislation and in deciding what inquiries to make into human rights problems with a view to proposing legislation.
The Executive is being asked to consider issuing a consultation paper on the merits of a Scottish human rights commission. The proposed remit of such a body would be to provide public education and best practice to the local authorities, which will be under a lot of pressure after October. It would also represent members of the public in test cases, investigate patterns of human rights abuse in public life and assist the Parliament in discharging its human rights responsibilities by making it aware of the standards expected from international human rights treaties and by equipping the committees with an independent source of human rights expertise. However, a commission would not be a substitute for the Parliament raising its own game and having its own process of getting human rights information.
Books are being published on the ECHR and university courses are being organised around it but I have tried to give an outline of what it might mean to the Scottish Parliament. I will be happy to answer questions.
Could you give a practical example of a part of Scottish law that might fall foul of the European convention?
How long do we have?
There are a number of problems. One is the way in which children are treated by our justice system. The verdict of the European Court of Human Rights on the notorious Jamie Bulger case applies equally in Scotland. There is a need for young children not to be prosecuted in adult criminal courts. It would be useful to examine the children's hearings system. I have been involved in giving training to children's reporters over the past week. There is a question about whether there is a fair and public hearing for children who are brought before the reporter and the tribunal because they are at risk or have committed an offence. I do not think that the system will survive in its present form. I do not think that legal representation and the right to legal advice will survive in their present form either. Many issues will raise their heads after October. We cannot predict how many.
Will the incorporation of the convention make life difficult for the Scottish legal profession?
The Human Rights Act 1998 was given royal assent at the same time as the Scotland Act 1998. One of the reasons why it has taken so long to come into effect was that sheriffs, judges, local authorities and the police all needed to get up to speed on what it would mean for them. It might cause problems in the short term but it will raise the standards of administration of justice and public services in the long term. It will increase the accountability of public authorities to the citizen. That must be welcomed.
I noticed from your submission that you will be holding a seminar on asylum, immigration and human rights. This committee will address that issue soon. I imagine that you would argue that large parts of the Immigration and Asylum Act 1999 breach ECHR conventions and UN treaties. As immigration is a reserved matter, there is a limit to what we can do about the act. However, it amends large areas of Scottish legislation and it would be interesting to hear your views about whether the Scottish Parliament would be guilty of breaching those conventions and treaties because it had allowed Scottish legislation to be amended.
That is an example of the problems of the uncharted territory that we are moving into. It is hard for anyone to predict what is and is not possible. A number of anomalies will occur because of the split in responsibilities under the Scotland Act 1998. Although immigration and asylum is a reserved matter, there seems to be little doubt that, within certain parameters, the Scottish Parliament, the Executive and the local authorities would be able to make decisions on matters relating to those areas.
If an individual says that the Immigration and Asylum Act 1999 breaches his or her rights under the European convention, the local authority would have a defence only if it could argue that it had no alternative and no discretion and that it had to implement the legislation because it was from Westminster. If the citizen can argue that discretion could be used, the local authority could become liable to that challenge. This matter must be examined carefully.
You have suggested that there should be a Scottish human rights commission and that the Executive might consult on that. I do not know if you were here when we spoke to our previous witnesses from the Scottish Executive equality unit. Do you think that there is a need for the Scottish Executive to have a similar human rights unit that would proof proposed and existing legislation?
I am not on the inside track as to what the Scottish Executive currently does about that. Although there is not a formal human rights unit in the way that there is an equality unit, I know that some proofing must be done because the Lord Advocate has to give a compatibility statement. Whether that proofing is sufficiently thorough and wide ranging is difficult to say, because I do not know what is involved.
My concern is that the Parliament, the parliamentary committees and the public should have a much greater understanding of human rights and the human rights implications of legislation. If a Scottish human rights commission were to be created, it would have that remit relating to the Parliament and the public. The Executive would have to raise its game, if it was not already at a high enough level, because everyone else would be more aware and knowledgeable about the human rights implications. You would have to ask the Executive about the current situation, because I do not know to what extent proofing in relation to human rights is being carried out.
The Crown Office carried out extensive preparations, because they had to, as of last May when the Lord Advocate became required to be compliant. Local authorities are preparing for October, but whether those preparations are advanced enough is open to question.
One of the difficulties on human rights issues is that they are often perceived to be the last defence of someone who has done something wrong and is under pressure in the courts. Human rights arguments often seem to fly in the face of a commonsense view of how things should be done. The Jamie Bulger case is an example of that.
There was a case, which you are probably aware of, when a woman who was a victim of a rape was cross-examined by the person who was accused of the rape. That was defended in terms of his human rights. That kind of case makes it more difficult to make the case for human rights. How do you think that we could get around that?
Is the issue further complicated by the fact that, as you mentioned earlier, human rights issues are often case driven, therefore obvious trends of inequality and injustice against, for example, women's human rights seem to be less important than an individual's human rights? I was interested in what you said about proportionality because often I do not think it is clear enough that the issue is all about achieving a balance of rights that coheres with a general view of what is fair and just.
There is a danger that unless we have a coherent, confident, knowledgeable approach to human rights, which the Parliament should have and a commission may help to develop, we will be subject to the random nature of cases that can turn on points that do not impress the public or explain much about human rights. We should not be passive and wait for the next case to arise.
On the rape case, I have read comments that for the accused to be denied the right to cross-examine the victim of a rape would be in breach of the European convention on human rights. I believe that that reflects the low level of understanding of the convention. It would not necessarily be a breach, because the balance must be struck between the rights of the victim, a witness and the accused. It may be that a mechanism could be found that would not breach the convention, as rape is a special case.
There have been one or two judgments at Strasbourg that should give you some encouragement. If, for example, an accused was offered legal representation but refused it and insisted that he wanted to cross-examine the rape victim himself, it should at least be considered that having been given the opportunity of legal representation and refused it, the accused might, in effect, be waiving his rights under the convention to legal representation. He could, therefore, be denied the opportunity to cross-examine that witness. That issue should be considered; it should not automatically be rejected as being a breach of the right of the accused to a fair trial.
Many of these issues are complicated, so the right balance must be struck. Victims have more rights under the convention than they have without it. A report on one victim of domestic violence was in the newspapers this morning. Strathclyde police have had a huge increase in reports of domestic violence. If one were to go through these reports in the next year or so, one would find out how many of the cases would result in prosecutions and convictions. My suspicion is that one might be surprised by how few would do so.
The victim of domestic violence now has a right under the convention, or will have come October, to go to the police and the procurator fiscals and say: "I reported this complaint, yet the man has not been charged or prosecuted. I have been denied a remedy, yet my right to privacy and physical integrity was violated, so I want an explanation." The convention will now require the fiscals and the Lord Advocate to be accountable and give an explanation as to why no prosecution took place.
Victims have rights under the convention, a fact that should be given more public attention. The convention has been too easily branded as a criminal's charter, but it is not that by any means—it is a balancing exercise throughout. A few people might be surprised at how useful it could be.
The convention is limited in what it can do, what rights it provides and how it can be used. It has perhaps been viewed in a negative way because the issues raised are strictly related to the convention, but the Scottish Parliament and the Executive have responsibilities under a whole range of human rights treaties which are not necessarily case driven but become implemented through policy decisions and political action rather than legal action.
That would mean that work in the Parliament on human rights and equality would have to be closely tied together, because if we have a debate about a balance of rights, we must be able to match an individual problem against social trends in inequality, particularly in relation to women. In terms of women's experience of the judicial system, it would be important to get a reassurance that human rights and equality could be pulled together.
Equality is a fundamental principle of human rights and international human rights treaties. It is not the only one, but it is a fundamental aspect of them. It should inform the work of this committee and many other parliamentary committees. Human rights should not be seen just as equal opportunities and anti-discrimination, but equality before the law is certainly an important part of human rights.
As you said, we have signed up to a number of UN conventions. The Scottish Parliament and the Scottish Executive have now assumed responsibility for those. For example, there are a number of areas in which we are in clear breach of the UN Convention on the Rights of the Child. I am not aware of there having been any great effort made in the past to encourage the UK Government to come in line and honour those. Will the situation change in the future? What is likely to happen if Scotland does not take action through the Parliament to honour those conventions?
I have been invited twice to give an oral submission in Geneva to the UN Human Rights Committee, to present a counter-report to that given by the UK. The last time I was there was in 1997, in relation to the International Covenant on Economic, Social and Cultural Rights. What was clear from that and my previous experience was that Scotland was pretty much neglected in terms of the UK even giving a report as to what the level of assessment at statistical or policy level is in Scotland. I raised that in 1997 and, in its comments, the United Nations committee that was examining the UK delegation clearly indicated that it did not find favour.
It was recommended that Parliaments must have human rights impact assessments—that now applies to Scotland. The effect of having a Parliament in Edinburgh, with an Executive with specific responsibilities to international human rights duties, means that there will be no longer be a hiding place. Scotland did not hide behind the UK, but the way in which these international reports are presented means that Scotland does not get the attention it deserves.
My view is that any international exposure of human rights inadequacies in a country such as the United Kingdom, which is seen as an advanced, democratic, civilised country, is taken seriously by the UN and by the United Kingdom. The Scottish Parliament and the Executive will therefore have to ensure that they are able to report positively, not least on the UN Convention on the Rights of the Child.
Scotland is riven with contradictions. On the one hand, we have what can be seen as a progressive children's hearing system, which considers the welfare of the child. On the other hand, we are almost at the bottom of the European league table in terms of what our youth expect from life and their vulnerability to drug and alcohol misuse. There are contradictions there, and it is up to Scotland to show that it is addressing them, consistent with the UN convention, which says that children should be consulted about decisions that affect them.
My question concerns compatibility, proportionality and the balance between individual rights and the public interest. I represent a large area, with many small communities. How do you define public? Is it the European public? The British public? The Scottish public? Or is it the public of the small communities in which people live? That is what worries me.
Depending on which of the convention's rights you are concerned with, public interest can be identified in particular ways, such as public morals, health and safety, national security, economic well-being and protection of the rights of others. Those are specific examples of what is considered to be public interest. In general terms, when proportionality is the issue, and one is weighing up the public interest against the private individual's rights, the European court in Strasbourg would take a number of factors into account.
First, it would establish whether there had been any sort of consistent development of values throughout Europe on which the UK—if that was the case that came before it—had fallen behind. For example, there is the case of Dudgeon in Northern Ireland—a homosexual man who said that the criminalisation of homosexual relations between consenting adults in Northern Ireland was an infringement of his right to form private relationships. In the 1950s and 1960s, the Strasbourg court would not have entertained that. However, because there has been a gradual liberalisation of sexual identity throughout Europe, the court agreed, and the laws in Northern Ireland had to be changed.
One would establish whether there was a European norm. If there were no European norm as such, the Strasbourg court would afford what is called a margin of appreciation, to the UK, for example, that its authority should be more in touch with the public and should know how the rights should be interpreted and applied within that country. Our courts will have to be equipped to do that; initially, our judges and sheriffs will find it difficult.
What is the public opinion? What are the public expectations and standards on moral or sexual identity questions, section 28 being a clear example? There is no easy answer to your question. Lawyers will argue in favour of their own interests. The courts and the decision makers will have to decide.
If the Parliament came to a clear decision—on warrant sales or section 28, for example—it would be seen by the Strasbourg court as reflecting public opinion in Scotland, at that particular time, on that particular question. Strasbourg would be reluctant to go against such a clearly expressed reflection of opinion, on an issue that it felt could best be judged within the UK. I do not know whether that helps you or further confuses you.
During the French revolution, there was a thing called the committee of public safety. It was pretty lethal for any individuals, or groups of individuals, who fell foul of it. I am worried about centralisation, and how you define public and the individuals who live in it.
It would be national. Let me give you a couple of examples. There was the case of Lindsay, in the UK, in which the issue was whether a woman sole breadwinner should receive various tax breaks that a male sole breadwinner in a family did not receive. The male said that that was discrimination. He lost the case, because the Strasbourg court took the view that, for the UK, it was a reasonable policy to encourage the participation of married women in the work force, and therefore that that discrimination was justifiable. The court would not interfere with the judgment that Parliament had made, which presumably was based on public expectations that women who are married and are sole breadwinners should be encouraged to get out into the work force, if that is what they want.
McMichael was the main Scottish case, which concerned discrimination in the children's hearing system. The unmarried father said that he was denied parental rights, because if he had been married, he would have had a right to participation in the procedures. Again, the court took the view that it was all right for the UK to have that policy, because there was an identifiable public expectation that fathers should be assuming their responsibilities and that he could get a parental order—parental rights—from the court.
Those are examples of cases where the domestic authorities are left to try to interpret what is public opinion in their own country. How the courts and tribunals come to do that will be very interesting.
Next is Elaine Smith, then I will wind it up, because we have quite a lot of business to get through. I am sure that there will be the opportunity for contact between the committee and yourselves.
I wanted to come in after Irene McGugan, because I also want to ask you about the UN Convention on the Rights of the Child. I have secured a private members' debate around that issue for Thursday night. Obviously, the UK Government ratified the convention. We have all seen the recent report on it. I picked my wording carefully when I was lodging the motion. I am asking the Parliament to affirm its support for the convention and to commit itself to ensuring that it is fully implemented in Scotland.
I may have picked you up wrong, but I take from what you are saying that it will be the UK Government that will produce the next report. Where does the Scottish Parliament fit in? Could we explore that further?
Ratification of international human rights treaties is a reserved matter. The Scottish Parliament has responsibility only in terms of things that have been ratified by the UK Government. The Parliament could not ratify a treaty that the UK had not ratified.
When it comes to reporting on how that treaty has been applied, the report will go through the UK Government, because it is the ratifying member state of the United Nations. However, the UN would be disappointed if a substantial part of the report did not deal with Scotland and if there was no representative of the Scottish Executive in the delegation that goes to Geneva to be questioned. Although Scotland will be given a higher profile, at the end of the day, it is the United Kingdom that is held liable.
I have seen a change: the most recent report had a Scottish chapter, which had never happened before. The Parliament should have the opportunity to make its comments on what is included in the Scottish chapter, just as much as any other body that is making a counter-report or submitting an alternative report. There may be opportunities for the committees and for the Parliament to comment on those reports and ensure that the United Nations sees those comments.
Thank you for attending. We look forward to working closely with you.