Official Report 471KB pdf
Welcome back to the meeting. Item 3 is a continuation—and almost a conclusion—of our human rights inquiry. I welcome to the committee Alex Neil, who is the Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights, and Duncan Isles, who is head of human rights in the Scottish Government. Good morning, gentlemen, and welcome to the committee.
We hoped that, by this stage, we would have proposals on the table from the UK Government on what it intends to do. I suspect that it is no coincidence that the main protagonists in the out campaign are the same people who want to repeal the Human Rights Act 1998, but we will maybe leave that parked for a wee while. The cabinet secretary can say something about that later if he wants to.
Cabinet secretary, I do not know whether you want to make an opening statement to give us some of your thoughts on where you think we are now, given that it is informed speculation at this point.
Absolutely. I will widen things out a wee bit to consider wider human rights issues, if that is okay.
Absolutely. You have had the benefit of having conversations with UK ministers, who decided not to accept our invitation to come to the committee to discuss the matter, so maybe you have a better insight than we do.
Thank you very much.
I congratulate the committee on taking on the inquiry, which is extremely important and timeous, although it would obviously have been helpful at this stage if we knew what the UK Government was going to propose.
The Scottish Government’s focus is firmly on the positive action that can be taken in Scotland to give further and better effect to human rights for the benefit of individuals and communities across the whole of Scotland and throughout Scottish society. That means the full range of human rights, as set out in the seven core United Nations treaties and a further eight instruments in the Council of Europe treaty system. It also means the rights in the European charter of fundamental rights, which are reflected in EU law.
It is essential to be clear in the current debate that the idea of human rights encompasses much more than just the rights that are identified in the European convention on human rights, fundamentally important as those rights and the ECHR are. The Scottish Government is very clear that the poverty of ambition and regressive thinking that are evident in the debate that the UK Government has promoted should not be allowed to impose constraints or limitations on what we seek to achieve in Scotland. The UK Government’s anti-human rights agenda and proposals for a British bill of rights are an unwelcome and damaging distraction.
I am struck by the fact that evidence that has been submitted to the committee and articulated by expert witnesses in the February round-table discussion reflects a widely drawn consensus. It is self-evident from the views that the committee has gathered that the UK Government’s claim to be responding to popular demand in its attempts to scale back human rights in the UK is simply not supported by the facts.
In my November written submission, I argued that attempts to replace the Human Rights Act 1998 with a British bill of rights would do damage at both the domestic and international levels. Other submissions from organisations ranging from Amnesty International to the Church of Scotland have made similar points. Both the Law Society of Scotland and the Faculty of Advocates have pointed out the positive impact of the ECHR and the HRA. That beneficial effect, which has facilitated challenge and self-examination and prompted important practical changes to laws and procedures, is something that the First Minister also talked about in the human rights speeches that she gave in September and December.
We have seen evidence from the Scottish Human Rights Commission and the Children and Young People’s Commissioner Scotland that unequivocally supports the Human Rights Act 1998 and the UK adherence to the European convention on human rights. A range of expert witnesses have provided persuasive testimonies relating to both the positive benefits of current mechanisms and the significant problems and undesirable consequences that are likely to result from the UK Government’s proposals.
There is no coherent or convincing case for a British bill of rights. In fact, there is very clear support, both in Scotland and elsewhere in the UK, for the retention of the Human Rights Act 1998, and for doing more to give meaningful effect to the commitments that the UK has given in signing and ratifying international human rights treaties.
As I stated in my written evidence, the Scottish Government believes that it is in the best interests of Scotland—and of the UK as a whole—for the Human Rights Act 1998 to be retained and for the UK to remain fully committed to the European convention on human rights. That is a point that I have reiterated in a recent letter to the UK's Secretary of State for Justice and Lord Chancellor.
Recent media reports suggest that the promised consultation paper has been delayed yet again, this time until after the EU referendum. It may be too much to hope that this further postponement is the precursor to UK ministers taking an eminently sensible and pragmatic decision to drop entirely the policy on this matter. That is a decision that we would certainly welcome. We might then expend our collective time and energy to rather more positive effect—as was pointed out by the report from the Jimmy Reid Foundation—by working to give effect to the full spectrum of civil, political, economic, social and cultural human rights that belong to everyone in our society, rather than having to defend against the UK Government’s attacks on the fundamental rights that are the necessary foundation stones of any civilised, modern democracy.
Thank you, cabinet secretary. You took the words out of my mouth for my first question, because I have just seen some of the stuff from the Jimmy Reid Foundation. It reflects a lot of evidence that we have taken over the past few months, in as much as people are seeking to extend human rights, rather than to curtail them.
The Human Rights Act 1998, the ECHR and the European Court of Justice are all conflated when it comes to the question of whether we should be in or out of Europe, but things are very different. We say that big, bad Europe is making us do this. However, when we see the results in domestic law and in the local decision making that is taken to protect and enhance people’s human rights—we have seen that in the campaign against the bedroom tax, for instance, and I have come across local people who have challenged the system regarding their access to aids and adaptations and everyday living items that allow them to maintain their independence—the relevance of the debate becomes even clearer. In that respect, it is very like the European debate—“What does the Human Rights Act do for me?” Can you give the committee some insight into that and tell us what the Scottish Government is doing to advance that argument?
First of all, when we talk about this in the context of the EU referendum, it is very important that we make a clear distinction between the institutional framework that specifically relates to EU legislation, the charter of fundamental rights, and the Council of Europe legislation, which is essentially the convention and the court. Those predate the creation of the European Union.
All that has to go together, and clearly the passage of the Human Rights Act 1998 in the UK was the result of a consensus, at that time, about the need for us to reflect all of the charters obligations and conventions obligations in UK law. When the Scottish Parliament was set up, the Scotland Act 1998 made it explicit that we have to adhere to the European convention of human rights—and, indeed, human rights legislation more generally.
In 1999, the very first act that the Scottish Parliament had to pass was a result of the human rights legislation. The court had taken a decision about a prosecution that was unsafe under the terms of human rights legislation. We had to pass emergency legislation to rectify that situation. That is a practical example of where the impact of the legislation has been positive in ensuring that we implement people’s human rights. It might not always be popular in certain circumstances, but we cannot decide human rights on the basis of what is popular—it is on the basis of what it is right in principle to do. That is extremely important.
Another important point is that, because it is written into the Scotland Act 1998, every piece of primary and secondary legislation that has been considered for introduction to the Scottish Parliament from day 1, both under the previous Scottish Executive and under the Scottish Government—as well as bills and Scottish statutory instruments being presented to the Presiding Officer for approval—has been human rights proofed at every stage. That has brought about a very good discipline in the Scottish Parliament, because it has meant that we have had to proactively give thought to the impact of any proposal on people’s human rights, whether it has been introduced as proposed primary legislation or as secondary legislation. All of that is very positive from our point of view.
We might consider some of the very positive decisions that have arisen. You mentioned the example of the bedroom tax, convener. Personally, I think that there is no argument, and that the human rights provisions have been very positive for the people of Scotland and indeed for the rest of the UK. I am always concerned to ensure that the rest of the UK is well looked after, too.
I have a few questions. I will start with the devolution settlement. Arguments have been made that the repeal of the Human Rights Act 1998 could have an impact on the devolution settlement. Others have argued against that point. What would be the impact of the repeal of the Human Rights Act 1998 on the devolution settlement in Scotland?
As I have said, the Scotland Act 1998, which set up the Parliament, had adherence to the principles and provisions of the European convention on human rights and human rights legislation built into it. Similarly, the Good Friday agreement in Northern Ireland had similar provisions built into it.
It is difficult to be 100 per cent definitive on this until we see the detail of the proposals but, in terms of how they have been presented so far, which is still pretty vague, the reality is that any proposal to change the Human Rights Act 1998 would require a legislative consent memorandum and the explicit approval of this Parliament. I cannot say that absolutely with no ifs, no buts, because we do not know the detail, but everyone I have spoken to, including Shami Chakrabarti of Liberty and people of that ilk, is very much of the view that it would be very difficult to implement or proceed legally with the proposals that have been outlined by the UK Government so far without the explicit approval of this Parliament. I suspect that the same will be true in relation to the Northern Ireland Assembly.
Given the different human rights regimes in different parts of the UK, how would that pan out?
The vast bulk of the legislation is very similar. In a lot of cases, it is identical. For obvious reasons, Northern Ireland has particular provisions and has been the subject of different kinds of cases. However, it is the fundamental principles that matter, rather than any specific angle or issue. My concern about the proposal is that it is basically an attack on the fundamental principles. Those principles have been well established at a United Nations level in 1945, then at Council of Europe level in the late 1940s. Since then, they have been embedded in UK legislation, through the Human Rights Act 1998, which was passed by the UK Parliament, and then in the Scotland Act 1998, which was also passed by the UK Parliament, as well as in the Northern Ireland legislation and all the other legislation. To unpick that is not easy.
I honestly believe that the reason for the delay is that the UK Government cannot find a way of doing what it wants legitimately in legislation without causing huge problems for itself and the devolved Administrations and without having a negative impact on the UK’s reputation not only in Europe but globally. It is struggling to keep the commitments that David Cameron made.
10:30
From what you said, do I take it that the UK Government, which is compliant with the European convention on human rights, already has a bill of rights?
We do not know whether it has a draft ready, Jamie.
The point that I am making is that you said that the Scotland Act 1998 is compliant with the ECHR, which means that there is a bill of human rights as such. The same must apply to the UK Government.
There is not a bill of rights as such. We have the Human Rights Act 1998.
It is not called a bill of rights but the fact that the UK Government is compliant with the ECHR gives the same sort of rights as a bill of rights would.
We do not know that because we do not know what the UK Government proposes will be in the bill of rights. Remember that the discussion inside the Tory party started with trying to pull out of the regime of the European Court of Human Rights because certain decisions of the court were very unpopular with certain elements within the House of Commons. It all started with trying to press the nuclear button and pull out of the European convention and the court. From more recent statements by the Prime Minister, the Lord Chancellor Michael Gove and others, the UK Government appears to have pulled back a bit from that nuclear option, but we do not know what it has pulled back to and we do not know what it intends to put in the UK bill of rights. Until we see all that, I cannot give you an honest answer to your question.
All right.
Good morning. Mindful of my interest as a member of the Faculty of Advocates, I flag up the evidence that was given to the House of Lords EU Justice Sub-committee on 2 February, in which there seemed to be reference to the possibility of making our Supreme Court into a quasi-constitutional court, perhaps following the German example. It is not clear to me exactly how that would work. There also seemed to be some suggestion that the German constitutional court has to operate within the confines of EU law anyway, so I do not know where that takes us. Has the issue been flagged up in any of your discussions with UK ministers or has it simply been ignored to date?
That issue has not cropped up in any discussions or correspondence that I have had with UK ministers. I would be very concerned if we were going to give the rights of a constitutional court to the Supreme Court in London. Of course, it already has some of those rights to a very limited degree because it inherited the responsibilities of the Judicial Committee of the Privy Council, which, prior to the Supreme Court’s creation, would have been the referee in any disputes between the UK Government and the Scottish Government over the implementation of the Scotland Act 1998.
If we remain inside the UK—which, obviously, I hope we do not—and there is a need for a constitutional court, it should be separate from the Supreme Court in London. We would also need very wide consultation on the constitution and remit of such a court because, as we know from elsewhere not only in Europe but in the world, if you are giving such power to any court, you have to be careful about the remit that you give it, who is on it and how they are appointed. So far, there has been no discussion whatsoever in that regard. We picked up on the point from the committee in the House of Lords, but to the best of my knowledge—and we have very limited knowledge about what the UK Government is intending to do—that would not form part of any proposal in relation to human rights legislation, although one never knows.
Indeed. Thank you. That is a very helpful answer. Obviously, a lot of human rights lawyers and activists and campaigners in the third sector are keen to extend human rights more forcefully into economic and social rights beyond the apparent narrow remit of the convention itself. Does the Scottish Government have a view on extending the nature of rights in legislation?
We are open to consideration of the extension of rights. I will give you an example. When the coalition Government came in during 2010-11, it abolished the socioeconomic duty under the Equality Act 2010. The Scotland Bill 2015-16 going through the UK Parliament at the moment would give us the power, if we wished, to reintroduce the socioeconomic duty. I think that there is a case for looking at doing that. That is one example of where we could extend human rights using the new powers in the new Scotland act.
Good morning, cabinet secretary. I would like to hear your view of the critique of current human rights legislation that has been promulgated by the Conservative Government. As you have pointed out, Michael Gove seems to be at the centre of the effort to get rid of the Human Rights Act 1998 and any connection that we have to the European Court of Human Rights. The Conservative Government’s critique is that the European court has indulged in mission creep on, for example, the issue of prisoners voting and that it seems to be friendly to criminals and terrorists. Moreover, it claims that the Human Rights Act 1998 undermines the role of the courts, the sovereignty of the UK Parliament and democratic accountability. Would you care to comment on those particular criticisms of the human rights legislation?
Our very strong view is that we not only disagree with the UK Government’s analysis but think the opposite. Far from undermining the UK Parliament’s sovereignty, the human rights legislation enhances its democratic accountability to the people of the UK. Similarly, we believe that the human rights legislation enhances the courts and their ability, where they believe that a human right has not been observed, to rule that that is the case, which effectively ensures that people’s human rights are fully protected.
We have already mentioned the example of the bedroom tax, but there are many examples of rulings under, or with reference to, human rights legislation that have enhanced ordinary people’s living standards. One such ruling related not only to disabled children but to the bedroom tax, while another related to a woman who had been the subject of domestic abuse and violence and her need to take measures to protect her from any further violence from her partner. That ruling was enforced by a court under the terms of the human rights legislation, and it might have been very difficult for that lady to have had the same result without it. It is a very good example of where the court’s ability to do the right thing morally and ethically has, in my view, been substantially enhanced.
I find the concept of mission creep absurd. Ever since we created a Parliament in the UK nearly 1,000 years ago and ever since we have had the Scottish Parliament—indeed, ever since every Parliament in the world has been created—courts have had to interpret the laws that those Parliaments have passed. In interpreting the law, the courts have to take account of changes in society that have happened since it was introduced. If you look at specific cases under human rights legislation, you will very often find that the position is very similar to cases under any form of legislation; it is for the courts to interpret the law, and they must take account of changed circumstances, developments in society and whatever is relevant to what is presented in court.
I do not regard that as mission creep. The law of the land is a dynamic force; it is not static, and it must keep up with the times. A good example is the rights of Gypsy Travellers. Another example goes way back to the 1950s—which you might remember better than me, Adam—when we had discrimination against children, corporal punishment and capital punishment. Gay rights and the rights of other minorities are other examples. The rights in all those areas have been enhanced by the courts under human rights legislation. I do not think that people disagree with that approach. The one or two controversial decisions—the one that is often cited is prisoners’ right to vote—have triggered, from a very small, extreme group in the House of Commons which is obsessed with the issue and which disagrees with those decisions, demands that we take down the whole edifice. That is just not on.
They have fellow travellers in the popular press, including the Daily Mail.
Absolutely.
The other issue relates to the House of Lords sub-committee meeting to which Rod Campbell referred and at which Michael Gove emphasised two areas of concern that needed to be addressed. One was the application of the Human Rights Act 1998 to the British military engaged in conflict abroad, and the other was the need for specific UK “glosses” to be placed on certain rights protected by that same act. The example given was that, traditionally in the UK, there is slightly more of an emphasis on the need for freedom of expression as opposed to privacy. Would you care to comment on the two areas of concern that Mr Gove highlighted?
First of all, as far as the armed forces are concerned, some of what has allegedly happened in Iraq raises certain human rights issues with regard to a small number of, if you like, renegade members of our armed forces who have not just undermined human rights but explicitly broken the law of that country and ours. I do not want us to dilute our ability to deal with such cases, because if we are fighting on the principle of fundamental freedoms and liberties, as we were in Iraq and as we are in fighting terrorists, the evils of Islamic State and all the rest of it, we must be able to hold our heads high and say that we would never engage in the sorts of activities that we are fighting against.
It is extremely important that we maintain our highest standards of conduct, and that people are accountable, no matter the circumstances in which they are operating. There is no doubt that circumstances in places such as Iraq are very difficult, and our armed forces are doing a fantastic job there. However, one or two rogues have brought down everyone else, and the first people to criticise them are the other members of the armed forces, who share our views on the matter.
As for the “glosses”, I am not a lawyer but the issue in law is about balance. Sometimes, an individual case might involve different laws that appear to contradict each other. For example, on the one hand, we have the human right to protect family life, which is absolutely right; on the other hand, we want to extradite certain people who have not lived up to our standards when they have lived in our country. That is where the courts come in; they have to balance those rights and decide whether it is right to allow the extradition or not. Each case is different, and each case has to be considered on its merits. As a politician, I am not going to say whether a judge has got it right or wrong. It is entirely the role of the judiciary to make those decisions, and it should not be interfered with by Government ministers.
What are being passed as “glosses” undermine the long-standing traditional role of our courts, which is for judges and juries to strike a balance in any possible conflict between two different aims that are set out in law. It is for them to decide the right thing in each case. “Gloss” is just another word for “Let’s do what we want them to do. Let’s tell the judges what they have to rule” instead of leaving the judges to get on with their job.
Okay. Thank you.
10:45
Cabinet secretary, we have had a lot of evidence, including some quite detailed evidence from Michael Clancy of the Law Society of Scotland, who is always very helpful and who has an amazing ability to remember things like “devolution paper 10”. He raised some issues in relation to the Lord Chancellor having stated that the Human Rights Act 1998 is neither reserved nor devolved.
We have the capability to make legislation on devolved matters, but we do not have the capability to change the general principles of the Human Rights Act. I am not sure whether it was the Lord Chancellor or someone else who said last week that we can repeal the Human Rights Act and have better human rights. What are your thoughts on that?
The first thing is to make a distinction between human rights and human rights legislation. Human rights are universal. They transcend time, geography, ethnicity, religion—every aspect of society right across the world. If that is what Michael Gove meant by that statement, I agree with him. In fact, the First Minister laid out clearly in one of her speeches that, as far as we are concerned, human rights do not stop or start at any border. That is fundamental to the whole principle and concept of human rights.
When we talk about human rights legislation, we have to talk about it in the context of the constitutional set-up, which in this case is within the United Kingdom. The reality is that, for the reasons that I outlined earlier, changing human rights legislation is not the sole prerogative of the UK Government or the UK Parliament. It is clear to me that, if they go ahead with the proposals that we think they are going to go ahead with, this Parliament, probably the Northern Ireland Assembly and possibly the Welsh Assembly—depending on the nature of the proposals—will have a proactive and explicit role to play. An LCM would certainly need to be agreed to in this Parliament to legitimise the passage of certain types of legislation that would amend the Human Rights Act in the UK Parliament.
As I said, I cannot be definite about what will happen until we see the proposals, but from what they have said so far, it appears that that will be the case. In that sense, Michael Gove might unintentionally be correct that the act is neither wholly devolved nor wholly reserved, because he will require our permission to do what he probably wants to do.
Yes, but do you not think that the fact that they do not know, or are not sure, whether the act is reserved, devolved or neither adds to the confusion that Michael Clancy mentioned in his submission to us about whether an LCM will be triggered or the Sewel convention will come into play? I agree that human rights transcend borders, but an aspect that has been raised by members who have come to the table to talk to us about human rights is that we could end up with fragmented human rights policy across the UK. Would that be helpful or unhelpful?
It would be undesirable, because I think that we want to conform. It is important that we see the charter of fundamental rights, the Human Rights Act and so on as floors and baselines for human rights from which we develop policies in those areas as society moves forward.
In principle, I am not concerned if there is a degree of variety between the four nations that make up the United Kingdom as long as the fundamental principles are shared, because we share them not just within these islands but with the whole of Europe and indeed—in theory, at least—with every member of the United Nations that is signed up to the worldwide convention.
The real problem that the UK Cabinet has is simple. The UK Government has an overall majority of 12, and more than 12 of its back benchers are not prepared under any circumstances to dilute human rights legislation in the UK. Its fundamental problem is that it does not have the arithmetic to get this daft proposal through the House of Commons. I think that the main reason why we have not seen a detailed proposal is that the UK Cabinet knows that it does not have a majority to force the legislation through the House of Commons.
Cabinet secretary, what are your views on the importance of prisoner voting in the debate on human rights?
The issue of prisoner voting has been fundamental in that the decision on it has triggered a lot of the demands that we have been talking about this morning. It is an important and emotional issue.
During the independence referendum, we had a hearing in the Court of Session about the rights of prisoners in Scotland to vote in that referendum, and it was ruled that they did not have that right.
On the more general issue of prisoner voting, we do not have legislative competence on the matter at present, but the Scotland Bill will give us legislative competence on that aspect of the implementation of human rights legislation.
You talked about rights in principle and a popular notion of what rights should be. One of the most talked about human rights is freedom of speech and freedom of expression, particularly in the United States constitution. As far as I can see, the difficulty here is that modern thought—popular thought—perhaps tends to restrict freedom of speech for other reasons. How do you see a way through that?
On the restriction of freedom of speech, when somebody is using their right to freedom of expression and freedom of speech to, for example, incite racial hatred, I think that we have the balance right. It is an offence to incite racial hatred, and it is an abuse of someone’s fundamental right if they use that right to incite racial hatred.
I am not an expert on the US constitution, although I am probably the only member of the Scottish Parliament who has a US social security number, because I used to work in the US.
In the President’s office?
I would make a better job of it than some of them.
It is like everything else in life; it is a question of balance. If someone incites racial hatred, that is clearly against the law, and I believe that it should be against the law, because they are infringing other people’s rights.
All right. You have answered that question.
It is difficult to make a clear decision on freedom of expression because the popular concept changes all the time about what songs should be sung, what poems should be—
Social media also raises a number of issues. There is no doubt that many of us have seen what I certainly regard as abuses on social media, which I find abhorrent. However, there is a big distinction between finding something abhorrent and trying to restrict the right of the person to say it or write it on social media or elsewhere. That is where the judiciary comes in.
Social media was not with us to any great degree 10 or 15 years ago, but now it is very much part and parcel of everyday life. New cases will come to the courts relating to social media, and it will be for the courts to decide where the balance lies within the law. It might well be that legislators, at some point, have to add to existing legislation if issues arise about excessive abuse on social media, which is a total misuse of social media.
Absolutely. On that point, I understand that a complaint against Google was upheld by the courts. What do you think should be done in relation to cases in which people have their human rights taken away by cyberbullying?
The issue of violence against women is one of my responsibilities. There is no doubt that, often, the violence that women face involves bullying not through physical injury but through psychological and mental injury, which is as much an offence as physical bullying is, provided that it can be proven. Similarly, I do not see why someone who uses social media should be treated any differently from how we would treat any bully. If someone is a bully and they indulge in those excesses, they should feel the full force of the law.
At present, there seems to be little regulation of the people who set up the internet or the web.
I think that every Government is grappling with this because, arguably, to do anything effective, we would need international agreements. It is probably one of the advantages of being in the EU. At a European level, we could at least get agreement between the 28 countries in the EU on how we can regulate that, and that would make it easier for us to try to get North America and others to adopt similar laws.
There is no silver bullet. Further, some of the issues are our responsibility, but a lot of them are reserved.
We have exhausted our questions. On behalf of the committee, I thank you for attending. We hope to publish a report in a few weeks’ time that will help to take the issues forward. If the proposals get on the table and there is a consultation period, the possibility of that period encompassing the Scottish Parliament elections and the EU referendum will make it difficult for any committee of this Parliament to contribute to it. Therefore, we thank you for giving us the opportunity to dot the i’s and cross the t’s with regard to some of the issues that are still outstanding.
I would like to point out that Mr Neil is as familiar with the 1950s as I am.
On that note, we will move into private session.
10:58 Meeting continued in private until 11:08.