The next item of business is a debate on motion S4M-11484, in the name of Roseanna Cunningham, on human rights.
14:54
Scotland’s Parliament is an institution that is founded on deeply held progressive values. Those values are held in common and reflect a shared belief in freedom, democracy, the rule of law, and the fundamental worth and inherent dignity of all humanity. Such values inform our day-to-day work.
There is a mace sitting at the centre of the chamber. It reminds us that the authority that has been granted to us by the people of Scotland is to be exercised with wisdom, justice, compassion and integrity.
As Donald Dewar rightly said, those were, and remain, “timeless values, honourable aspirations” for Scotland’s new democracy. They are woven into the fabric of all of our endeavours on behalf of all the people of our nation. They remind us, too, of the need to be constantly aware of our special responsibilities as custodians of the fundamental standards that underpin civilised society.
The most important of those standards are the universal and inalienable human rights that are enshrined in international law and are woven into the founding statute of this Parliament.
Mary Robinson, the former Irish President and United Nations High Commissioner for Human Rights, defined human freedom as
“that precious space secured by the standards, laws and procedures which defend, protect and enhance human rights”.
She did so in a lecture in 1997—coincidentally, on 11 November—shortly after becoming UN high commissioner. She went on to note that, for the world at large, international human rights laws exist because
“domestic protection of vulnerable individuals or groups is either absent or insufficient.”
In Scotland, we are fortunate enough to have fundamental rights that are not only defined in international law but clearly set out in domestic statute through the Scotland Act 1998 and the Human Rights Act 1998. That is, I think we can agree, a good thing. It is also a necessary thing, and it is a thing of which we should be proud—just as we are proud of the focus that this Parliament has placed on the need to act always with wisdom, justice, compassion and integrity.
Strangely, however, there are people for whom the standards that secure human freedom—standards of which we in this chamber are all custodians—are somehow a bad thing. To listen to such voices is to hear the message that the fundamental rights that we are all born with are an alien imposition, that they are a hindrance, a constraint and an unwanted limitation on the power of Government and authority, and that we would all be much better off if we cut ourselves free from such strange foreign notions as freedom and liberty, equality and justice or the right to a fair trial.
Does the minister’s list of such people include the Deputy First Minister? In relation to the European decision on granting prisoners the right to vote, she said:
“I do not believe that a good case has been made for changing that situation.”—[Official Report, Referendum (Scotland) Bill Committee, 28 March 2013; c 314.]
As Murdo Fraser will hear, I acknowledge that Governments do not always like what comes out of the courts. That is not a reason to take away the right to get to those courts in the first place.
The message that is beginning to emerge is not one that holds the slightest attraction for any democrat in this Parliament. To retreat from our common commitment to human rights would be entirely at odds with where Scotland now finds itself. Around this chamber, I detect a desire to move forwards, not to go backwards. In wider Scottish society, I detect the same interest in doing more, and not less, to secure and promote the rights to which we are all entitled. It is no accident that human rights are mentioned in four out of the five party submissions to the Smith commission. It is also no accident that human rights are a key theme in civil society contributions, including the letter that was submitted jointly by the non-governmental members of the leadership panel of Scotland’s national action plan for human rights.
I realise that some people will protest that I am misrepresenting the position of opponents of the Human Rights Act 1998 and am overplaying the threat that is represented by their proposals. I disagree. I will return to what is proposed, but to downplay the threat is to seriously misunderstand the true impact of the escalating and irresponsible anti-Europe, anti-human-rights rhetoric that we have been hearing from prominent members of the UK Government.
Members will be well aware—I expect that Liberal Democrat members will be anxious to make this point—that such anti-human-rights rhetoric represents the views of a small but powerful, and extreme, group of individuals at Westminster. It is very definitely not the policy of the UK Government, as we will be told, and it is not the policy of the main opposition parties at Westminster. That was a point that Alistair Carmichael, speaking as Secretary of State for Scotland, has underlined in no uncertain terms.
I want also to welcome the equally robust views that we have heard from the Labour Party. Sadiq Khan was absolutely correct in his observation that
“leaving the ECHR ... would be a disaster for this country”.
Just as David Cameron seems to be intent on moving ever closer to an exit from the European Union, so, too, there appears to be a cavalier desire to play Russian roulette with the Council of Europe and fundamental human rights. If David Cameron and Chris Grayling do not get their way—which seems to consist mainly of being allowed to pick and choose which laws and court judgments they feel like implementing—the UK could join Belarus and Kazakhstan as the only countries in Europe that are outside of the European convention on human rights system. That position has attracted derision from some eminent commentators. One has described it as follows:
“It’s as if we said to Fifa: ‘We’ll play in the World Cup, but we’ll only obey referees’ decisions if we agree with them.’”
It has prompted others to note the irony that the ECHR was originally proposed by Winston Churchill, following the horrors of the second world war. It was drafted in large measure by British lawyers. Churchill’s own party now looks at those same principles with contempt, and proposes to undermine the world’s most successful human rights treaty.
Make no mistake: the potential withdrawal of the UK from the convention—which is where we are heading—sends a message to every dictator around the globe that they, too, can have carte blanche to pick and choose which of humanity’s fundamental standards to respect. The dangers of that should be apparent to everyone. They are dangers that this Parliament has a duty to confront.
There has long been a cross-party consensus in Scotland on the fundamental importance of human rights. As Scots, we have traditionally had, and continue to have, a deep-rooted attachment to concepts of fairness, justice and equality. We have been reminded in recent months by Professor Alan Miller, the chair of Scotland’s independent UN-accredited Scottish Human Rights Commission, that attempts by politicians to limit accountability
“for the exercise of power”
would be
“in stark contrast to the spirit of democratic renewal that has come to life in Scotland in recent times.”
He has gone further, emphasising that human rights must never be treated as a political football or abused for short-term political gain. As he has made clear:
“Playing party politics with human rights is irresponsible, undermines the rule of law, sets a dangerous precedent to other states and risks taking us backwards when it comes to protecting people’s rights in everyday life.”
I want to be equally clear, on behalf of the Scottish Government, that we regard Scotland’s continuing membership of the ECHR system and the Council of Europe as a necessary and permanent feature of the constitutional settlement. It is non-negotiable. We regard the Human Rights Act 1998 as effective and successful implementation of ECHR, and one that is itself also a fundamental constitutional statute.
Of course, there is always scope for Scotland to go further in giving effect to international human rights—in particular, by building on this Parliament’s existing commitment to civil and political rights, and by looking closely at how to give better and further effect to wider economic, social and cultural rights. However, there cannot and will not be any backsliding on, or erosion of, the existing fundamental safeguards that are provided by, the Human Rights Act 1998 and the Scotland Act 1998. That, I believe, is a position that is shared by most, if not—as I like to think—all members of this Parliament.
That is not to say that implementing ECHR commitments is always easy for Government. Murdo Fraser has already flagged up one of the issues that gives Governments some difficulty. In many ways, though, such things are precisely the point of having human rights safeguards written into our fundamental laws. Laws such as the Human Rights Act 1998 exist precisely to enable ordinary members of society to challenge the preferences of the powerful. There is no doubt that our obligations under the ECHR have required both the Government and Parliament in Scotland to think increasingly in a rights-based and person-centred way. That goes back to 1999 and the inception of this Parliament.
Governments struggle occasionally with the decision making that comes out of the ECHR. However, at the end of the day, if it was only ever going to be about decisions that every Government agreed with, there would hardly be much point in the first place.
We have become accustomed to embedding principles of reasonableness and proportionality, fairness and balance at the heart of our policy and legislative processes. That has imposed a positive discipline on us all. Whether we are talking about health and social care, criminal justice, housing or the devolution of possible new powers in areas including welfare or employment, all those matters have human rights at their very heart, and all would be likely to suffer from any erosion of our commitment to making rights real for everyone in our society.
I will conclude by making it clear that a threat to our human rights exists. The Presiding Officer need not worry about the time, because this conclusion will perhaps be slightly longer than she might be expecting. The threat has been dressed up in rhetoric about “restoring common sense” and ensuring a
“proper balance between rights and responsibilities”.
When we look behind that façade, what we see is a world in which powerful people truly believe that politicians, not the courts, should be able to decide which members of our society are “deserving” of protection and which cases are “too trivial” to be heard. It is a world in which international commitments and legal obligations count for nothing, and where the rule of law comes second to the prejudices of the party in power. It is a world in which a Government and the Parliament that it controls can be sovereign and where the natural order of democracy, in which the people are supreme, is turned on its head.
This is not an abstract issue. The proposals that have been presented would deny recourse, for example, for members of the armed forces and their families if a future UK Government sent them into combat without proper equipment.
Our ability to claim our rights would be restricted to “the most serious cases”—those which involve property rights or the prospect of imprisonment. That would be a travesty of the robust and comprehensive safeguards that protect everyone, from elderly people in care homes or disabled people who are being victimised by the bedroom tax, right through to local campaigners exercising their democratic right to protest, or any one of us enjoying the right that we all have to privacy and respect for our family life.
The erosion of those rights is not acceptable to Scotland. As citizens of the world, we have a responsibility to stand up for the standards that secure human freedom. We might be a small voice in the world, but we are a voice, which is important. When it comes to the rights that belong to all humanity, we should never be tempted to opt out or to walk on by or to decide that being uncomfortable as a Government is sufficient reason to set those rights aside.
This Parliament has the capacity to speak with an authoritative and democratic voice. We have an obligation to step up to the mark when rights are on the line. That is why I ask all members of Scotland’s Parliament to unite today in making it clear that threats to the Human Rights Act 1998 are irresponsible and unacceptable both in terms of their direct impact in Scotland and because, ultimately, if rights regress in a modern western democracy, they inevitably fail in the rest of the world.
I move,
That the Parliament re-affirms and re-asserts, on behalf of all of the people of the community of Scotland, the inalienable human rights and fundamental freedoms that are the common inheritance of all members of humanity; recalls the particular importance to the Parliament, through its founding statute, its founding principles and in all aspects of its day-to-day work, of human rights in general and of the European Convention on Human Rights in particular; acknowledges the constitutional responsibility of the Parliament to uphold the principles and values expressed in the convention and to respect, protect and realise the rights and freedoms that it enumerates; further acknowledges the importance of that work not only in relation to Scotland, but also in establishing and maintaining standards of best practice, which provide a benchmark for human rights elsewhere in the world; expresses its confidence in, and support for, the Human Rights Act 1998 as a successful and effective implementation of the convention in domestic law, and believes that the principles and values that inform the convention, the rights and freedoms that it enumerates and the Acts that incorporate it into law, should be a source of unity and consensus across the whole of society and should enjoy the unequivocal backing of all who are committed to upholding human rights, democracy and the rule of law.
15:08
This is an important debate and the Government has lodged a substantive motion. I very much hope that the minister will accept that there is a great deal with which we agree—in her opening comments, at least—in both the sentiment and substance of what she had to say. However, it is no secret that there are nuances between us, and an open debate is taking place within the Conservative Party—in the wider community, too—about the settlement of current legislation and how that might be revisited in the event of a Conservative majority Government after the general election in barely six months. I will return to that as I proceed.
I was born in the shadow of the second world war, in which millions died, including 6 million Jews and others who were murdered by the Nazis. My childhood was spent growing up in a world that was dominated by the cold war and by a Soviet Union that had murdered millions more in gulag camps across Siberia. My early teenage years witnessed the dismaying excess of the United States in its desperate struggle to secure progress in Vietnam, while in adjacent Cambodia, Pol Pot and his henchmen murdered another 5 million people. In the years since, whether in the Balkans and Kosovo, in China or across the middle east, we have all borne witness to the very worst of the world in which we live.
I have heard one Republican US President justify the detention without charge or trial of individuals at Guantanamo Bay; I heard another Democrat US presidential candidate condemn Guantanamo Bay when campaigning for office—yet, six years into his presidency, he has failed to keep any promise that he made to close it down.
My family’s business was based just 100 yards or so from the worst of Glasgow’s long-since demolished Gorbals community. As a child, and admittedly from the warmth and privilege of a comfortable motor car that my middle-class upbringing provided, I saw the squalor and poverty in that community without ever experiencing it. However, I knew that what I saw was wrong.
When I fought my first council by-election in the North Kelvin and Park ward of Strathclyde region more than 30 years ago and saw behind the newly cleaned stone façades of the Great Western Road tenements to find many with nothing but shared outdoor sanitation, I knew that that was wrong, too. I am not talking about the communities—they were proud and resilient. Rather, what was wrong was what they were expected to endure. In many cases they were expected to do so for too long and without hope, whatever the colour of Government, for all colours and combinations of Government have, undeniably, had their turn in office both nationally and locally. There has been progress, but at times the progress in human rights here at home has been painfully cautious. Politicians of all colours have succeeded and disappointed in turn.
I do not look at any other politician and imagine or expect them to care nothing for values or human rights; nor do I find any productive mileage in accusing others of indifference. Invective, insults and polemics that are rooted in spite and bile rarely move hearts, minds or policy. We all have ideals, even if we are not all idealists. I suppose that I hope to be an idealistic pragmatist: I seek progress for humankind and I will settle for half a glass of progress now rather than none at all.
Although Scotland joined the UK in the 17th and 18th centuries, I celebrate the UK’s wider heritage of the Magna Carta—its 800th anniversary falls next year—and the bill of rights and the claim of right. I celebrate the European convention on human rights, which was signed in Rome in 1950, and the fact that the UK was the first nation to ratify it.
The ECHR was drafted in the post-war period largely by David Maxwell Fyfe. He later became a Scottish Conservative MP, but was then the man who at Nuremberg eviscerated the evidence and theatrical bombast and cunning of Hermann Göring. The convention was born of a determination to ensure that the horrors that had been perpetrated by Hitler, and even then those of Stalin as he sent his citizens to gulag camps without trial, could never be repeated.
Irrespective of the dismay that many people feel about how the European Court of Human Rights has sought to develop and reinterpret, with all its creativity, the terms of that historic convention, I am in no doubt that it stands well the test of more than half a century, and that it demonstrates in its fundamental text absolute rights that should never be set aside: the right not to be tortured, the right not to be enslaved, the right to a fair trial and, as defined, the right to life and to liberty.
The Prime Minister has made it plain that a future UK Conservative Government is resolved to review legislation, and that it will work with all to establish a new British bill of rights and responsibilities, at the heart of which will be the original text of the European convention on human rights, which would be a laudable statement of principles for any modern nation.
I accept totally that, as we debate these matters, the terms and detail of any alternative are far from clear. I note freely, as well as the words of the minister, the many worries that have been expressed by organisations that have prepared briefings ahead of the debate. I acknowledge, too, that those concerns exist in the Conservative Party, so we are far from knowing what it is that we may be asked to form a judgment about.
However, we will be seeking, in any process, to step back from the European Court of Human Rights’ increasingly unsupportable interpretation of the convention as a “living instrument”, and its so-called mission creep, particularly to reinterpret article 8 of the convention—the “Right to respect for private and family life.” It says:
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
I find the European Court of Human Rights’ rulings that prisoners should be allowed to undergo artificial insemination or that, despite having committed the most serious of crimes, they should be allowed to remain in the UK, incompatible with the qualifications that are set out in the convention. Nor can I support the court’s view that murderers cannot be sentenced to prison for life because its interpretation of such a sentence is, since 2013, that that constitutes a breach of article 3 and that those are, in its opinion,
“torture or ... inhuman or degrading treatment or punishment.”
It is for others to explain why that is acceptable; I look forward to hearing them try to do so.
It is not the wish of the people of Scotland, any more than it is the wish of people elsewhere in the UK, that prisoners should be free to vote in national elections. The Deputy First Minister’s remarks in that regard have been touched on.
This, then, is a key principle for Conservatives. After all the talk of the sovereign will of the Scottish people, how hollow it is rendered if the interpretation of law is subject not to those who are elected by us, or to the courts of our own land, but to others who feel free to impose their interpretation of our laws on us.
The Prime Minister has therefore concluded that a future Conservative Government will repeal Labour’s Human Rights Act 1998, and will, by so doing, restore the UK to the position of other European nations—Germany, for example, where the German Federal Constitutional Court ruled that if there is a conflict between the German basic law and the European convention on human rights, the basic law prevails. It was Labour’s 1998 act that, in its detail, set that consideration aside for this country, where we believe—as people in Germany do of theirs—that our laws should prevail.
For the avoidance of doubt, we intend to enshrine the text of the original human rights convention in primary legislation in a British bill of rights and responsibilities. We will clarify the interpretation of convention rights to reflect a proper balance between rights and responsibilities, and to ensure that they are applied in accordance with the original intentions for the convention, and the wider mainstream understanding of those rights by the public.
We will break the formal link between the British courts and the European Court of Human Rights and end the ability of that court to force the UK to change the law. We will prevent our laws from being, in effect, rewritten through interpretation.
Scottish Conservatives recognise entirely the issues that arise with regard to schedule 4 to the Scotland Act 1998. We believe that, if the European convention on human rights is enshrined in primary legislation, such a change would not undermine the existing devolution settlement. However, I note what the minister has said today and in response to questions, and I do not seek to minimise in any way the varied potential scenarios that may arise, and which would create complication and confusion.
We recognise that debating the matter in the months leading up to a UK election will ensure that the atmosphere in which we do so will be febrile, hot-housed and regrettably, if inevitably, hyperbolic. In the event of a Conservative Government being elected, measured and sincere arguments will be tested and any arrangements will be achieved only through good will and mature determination.
I do not despair even now, and not naively, of having a measured and sensible discussion between Governments in the UK that would secure a UK bill of rights and responsibilities in which we could all have confidence and a stake, and in which common sense will ensure that all Scots can have confidence, too.
I do not expect such an approach to carry the support or reflect the will of Parliament this afternoon, although Murdo Fraser and I will listen with ears open to intelligent, constructive and thoughtful comments from colleagues.
As I said when I began my speech, Scottish Conservatives, on this most fundamental of subjects, make no claim to a monopoly of truth or what is right, but neither can anyone else in the chamber. In that spirit, I move amendment S4M-11484.1, to leave out from “expresses its confidence” to end and insert:
“believes that human rights must be protected in a manner that promotes public confidence and remains fitting to the spirit of the convention and other international statements of rights; recalls the UK’s role in composing the convention and its status as the first nation to ratify it; acknowledges the work of David Maxwell Fyfe in the drafting of the convention, and welcomes the position of the UK as a prominent supporter of democracy, human rights and the rule of law internationally, taking real steps to end abuses of human rights around the globe.”
15:17
Scottish Labour welcomes this debate on human rights. We have not lodged an amendment to the Government’s motion because it does not require to be amended.
We welcome the endorsement of the UK Labour Government’s Human Rights Act 1998 by the majority of members in the chamber. The incorporation of the ECHR into domestic law was a Labour manifesto pledge in 1997, and I am proud that my party in government acted swiftly in introducing a white paper that same year.
Those who criticise the 1998 act should remember that prior to its coming into force, a British citizen seeking redress through the European Court of Human Rights would wait, on average, five years for action to be taken. Their case would have to be taken in Strasbourg and it would cost the individual approximately £30,000 on average. As well as requiring new legislation to be compatible with the ECHR, and existing legislation to be interpreted by the courts and tribunals, as far as possible, to be compatible, the 1998 act enabled European Court of Human Rights cases to be heard in British courts.
Conservatives may argue that they would prefer to pass a British bill of rights and responsibilities when repealing the 1998 act. It takes no great intelligence to deduce that the substitution of the European convention on human rights with a British bill is designed to appeal to the Farage-ist tendency. However, the Conservative proposals would fundamentally reduce an individual’s right to petition an international court if they fail to achieve satisfaction in the British court.
At issue is not only the removal of the individual’s ability to appeal to an international court, but the example that would be set to other nations. How could the UK lecture any other country on the need to adhere to international standards on human rights if we ourselves have retreated from our obligations to do so?
The 1998 act has not only changed how law is applied. It has changed minds and opinions too, which is one of the purposes of Scotland’s national action plan on human rights.
I believe that the recognition of the rights of lesbian, gay, bisexual and transgender people is a good illustration of the changes. In February, we passed the Marriage and Civil Partnership (Scotland) Bill by 105 votes to 18. I appreciate and respect the fact that some members were unable to support the bill because of their faith, but it is my view that the majority of members recognised that it was the right thing to do. I do not think that that would have been the case in the early days of this Parliament. The application and, importantly, the spirit of the Human Rights Act 1998 brought us and much of the rest of society to the point at which it was obvious that that law should be passed.
Labour Governments here and at Westminster did a great deal for the advancement of LGBT rights by equalising the age of consent; by ending the ban on LGBT people serving in the armed forces; by enabling LGBT people to adopt children; by including homophobia in the definition of hate crimes and by increasing the sentences for such crimes; by allowing transgender people to have their true genders recognised in law; and by creating civil partnerships, which were the precursor to equal marriage. Those are among the actions that I am proud were introduced by Labour Governments. We also acted to scrap clause 2A, which was section 28 in the rest of the UK. I suspect that some members who are in the chamber are not proud of the stance that they took on those issues, but those changes took place as we embraced the provisions and the spirit of the Human Rights Act 1998.
The Human Rights Act 1998 and the European Court of Human Rights have achieved many successes, including protecting victims of crime—a fact that is not always recognised. For example, they triggered a change in the law to prevent rape victims from being cross-examined by their attackers, and when doing so was in the public interest, overturned anonymity orders on people with alleged links to al-Qaeda. Indeed, article 9 of the ECHR as applied by the European Court of Human Rights upheld the right of a British Airways worker to wear a crucifix at work.
However, let us not be complacent, because there is unfinished business on which we must make progress. About 90 victims of human trafficking are found in Scotland every year, which averages out at one every four days. Despite the passing of the Slavery Abolition Act 1833 and despite article 4 of the ECHR, slavery still exists in this country, as men, women and children from Africa, Asia and eastern Europe are trafficked into the UK for the purposes of prostitution and forced labour.
Last year, my colleague Jenny Marra proposed a human trafficking bill to tackle devolved aspects of that despicable trade in human beings. The purposes of the proposed bill were the creation of a Scottish anti-human trafficking strategy, provision being made for special treatment of human trafficking crimes in the criminal justice system, and provision of support to survivors of human trafficking. I understand that the latter is insufficiently provided for in the UK Government’s Modern Slavery Bill. Although Jenny Marra’s bill proposal attracted no signatures of support from SNP members, we were delighted when the Scottish Government announced on 17 March that it would in this session of Parliament introduce a bill that would give effect to those proposals. More than 50,000 people supported the principles of the Government’s bill during the consultation phase, and with only 18 months left of the current session of Parliament, we would welcome information from ministers on when the bill will be introduced.
My colleagues and I have confidence in the Human Rights Act 1998. We are proud of our colleagues who took it through the House of Commons, and we agree that it should enjoy the unequivocal backing of those who are committed to upholding human rights. We are proud, too, of the way in which it has been incorporated into legislation in this Parliament, and of how the spirit of the 1998 act has affected the way in which we legislate and consider aspects of legislation. We recognise the importance of the ability to uphold citizens’ rights in an international court, but we also recognise that there is still work to do. We look forward to further progress and to publication of the annual review of the Scottish national action plan next month.
We are quite tight for time this afternoon. I ask members for speeches of a maximum of six minutes, please.
15:23
In 1999, when I entered Parliament, I had little idea about the European convention on human rights or the Human Rights Act 1998. However, I soon came to realise their developing significance for the legislation of this Parliament and for the rights of individuals.
As we know, all acts of the Scottish Parliament must be compliant with the ECHR, which is protected by the Scotland Act 1998, which set up the Parliament. Section 29(2) of that act states that the provisions of an act of the Scottish Parliament will be
“outside the legislative competence of the Parliament”,
hence unlawful, if they are
“incompatible with any of the Convention rights or with EU law”.
That is important in the current context of the Conservatives’ plans should they win the United Kingdom election. Certain legal commentators have stressed that the provisions in the Scotland Act 1998 could provide an obstacle to the Conservative Party’s human rights goals, at least in relation to this country.
For example, Professor Aileen McHarg, professor of public law at the University of Strathclyde, has argued that any repeal of the Human Rights Act 1998 would leave the provisions of the Scotland Act 1998 unaffected, with the result that people in Scotland could still use the convention rights to challenge primary or secondary legislation that is enacted by a Scottish Government. That is very important in the context of what Theresa May has had to say. Jackson Carlaw’s speech was very wholesome, but we know what the Conservatives’ proposals are all about—they are all about the UK Independence Party and the idea that anything that comes from Europe is bad.
Theresa May told her party’s conference:
“The next Conservative manifesto will promise to scrap the Human Rights Act. It’s why Chris Grayling is leading a review of our relationship with the European court ... And it’s why the Conservative position is clear—if leaving the European convention is what it takes to fix our human rights laws, that is what we should do”.
She was greeted with applause. We are not just having a little philosophical debate; we are talking about an approach that is not only wrong in itself, but which is not relevant to Scotland. That is being ignored. This is not the first time that that has happened.
The Justice Committee is well aware of article 6 of the ECHR, which is on the right to a fair trial. When we considered the Victims and Witnesses (Scotland) Bill, we had to weigh up protection for witnesses, particularly vulnerable witnesses, against the rights of the accused to robust interrogation of the evidence. That is not easy. In such circumstances, articles in the convention are always in the back of our minds.
Article 9 is on the right to freedom of thought, conscience and religion, which was tested when the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 went through the Parliament. That act is in conflict with article 10, which deals with the right to freedom of expression. None of those rights is absolute. There are tensions between the rights in the ECHR.
Article 3 was probably one of the first convention articles to hit the Parliament. It is about the prohibition of torture. It states:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Little did we know that that would lead to the issue of slopping out having to be addressed and to compensation being paid to various prisoners. Some members might not have agreed with that, but it had to be done under the ECHR. The convention is a kind of bulwark against interference by the state or the heavy hand of the state. As the minister said, Governments do not like all the decisions that are made under the convention, but that is no bad thing. If they liked everything, we might not need a European convention on human rights.
Article 8 is on the right to respect for family life. That is a very topical issue because of the interference of the press in people’s lives. How far are the press entitled to intrude into the lives of, say, politicians? When is it right for issues to do with the private life of a politician, whether a member of this Parliament or another, to be brought into the public domain? When is that in the public interest and when does it happen just for the sake of prurience, gossip and tittle-tattle? The right to freedom of expression and the right to family life are important in establishing not just legislation but case law.
Article 8 is also relevant to the Assisted Suicide (Scotland) Bill, which is being considered by the Health and Sport Committee, as is the right to personal autonomy. There are tensions in that bill between someone’s right to say what happens to them and whether the state should interfere. Those are highly sensitive issues.
There is nothing esoteric or academic about the ECHR or the Human Rights Act 1998. They strike right at the heart of the balance between the individual and a heavy-handed state. The moves that are being made at Westminster are aggressive, should be resisted down south and will be resisted here. I am pleased to say that the majority of MSPs would not wish the convention or the human rights legislation to be changed in any way.
15:29
I begin by addressing the Government’s motion directly to make three points.
First, I welcome this opportunity in Parliament today to reaffirm and reassert our human rights and our most fundamental of freedoms. Our human rights are, as the motion states, a “common inheritance” for us all and our rights and freedoms can never be taken for granted. Secondly, I note that the motion refers to our “founding statute” and how the Scotland Act 1998 commits the Parliament to observing and upholding the European convention on human rights. There is broad recognition that human rights are woven into the very fabric of devolution. Thirdly, I agree that the principles underlying the ECHR should be
“a source of unity and consensus”.
A shared understanding of the inalienable rights of each and every one of us is the foundation of a respectful and tolerant society in which we value human dignity, democracy and the rule of law.
Despite those sentiments being widely shared and understood, there are those who find our human rights legislation contentious and those who would trivialise and distort the meaning and spirit of the ECHR, and even seek to repeal the Human Rights Act 1998, which aligns the ECHR with our domestic laws. Debate about human rights and the adequacy of the law is healthy, but distortions are not. I believe that it falls to those of us who value the laws that protect our human rights to defend them.
We are all familiar with the myths and exaggerations around human rights, but we are perhaps less familiar with real-life examples of where human rights legislation makes a positive difference in Scotland and across the UK. For example, there is the elderly disabled couple whose right to family life kept them together when the authorities wanted to put them into separate care homes; or the woman travelling from town to town with her children to flee an abusive husband who challenged the council that said she was intentionally homeless; or the UK nationals seeking redress who, since implementation of the Human Rights Act 1998, can take their cases to UK courts instead of having to go to the European Court of Human Rights.
Together, our membership of the ECHR and its incorporation through the 1998 act have made our society fairer, more equal and more just. My message to those who would turn the clock back on human rights, rescind the 1998 act and even take us out of the ECHR is this: no other democracy in the world has voluntarily repealed its own fundamental human rights and no other democracy in the world has voluntarily withdrawn from an international human rights treaty. We would be diminished if we were the first to do so.
I am aware that there are those who would argue that there is a human rights deficit in Scotland. We will all be aware of cases where there is a gap between policy and practice, and even a gap between policy and the spirit of human rights legislation. The Scottish Council for Voluntary Organisations in particular has been critical of the impact of austerity measures that make it harder for public authorities to fulfil their obligations under human rights laws and which even constrain the rights of individuals. The SCVO cites the examples of increases in benefit sanctions and cuts in legal aid. I can point to examples of my own of where the outcome that people experience is at variance with not only the spirit but the letter of the law.
As part of its extensive inquiry into where Gypsy Travellers live, the Equal Opportunities Committee heard evidence from the commissioner for equality and human rights and the Scottish human rights commissioner that highlighted a variety of issues, including overcrowding, adequate sanitation, security of tenure, respect for family life and the right to property and peaceful enjoyment of possessions. Many of those issues were also highlighted by members of the committee who visited Gypsy Traveller sites throughout the course of their inquiry. Our human rights laws must bring an added impetus to the efforts of Government and public authorities to address the inequalities that Gypsy Travellers face.
There is broad if not unanimous consensus across Parliament in support of the codification of our human rights in some way. For me, that means acceptance of the European convention on human rights and the Human Rights Act 1998. However, we must always challenge ourselves to ensure that those rights are realised in practice; and those who cherish the progress that we have made must defend our human rights as a matter of principle.
15:34
Among all the discussion of the referendum and the Smith commission, it is perhaps not surprising that the Conservatives’ plans at Westminster in relation to human rights have not received the attention that they should have. However, we should have been forewarned by the replacement of both Dominic Grieve as Attorney General and Kenneth Clarke, the former UK justice secretary and latterly minister without portfolio, in July this year, because both of those distinguished lawyers appreciated the folly of their party’s proposals.
Ken Clarke has always been an active supporter of the European Court of Human Rights. In 2013, he said of it:
“it is extremely important that we”—
meaning the UK—
“are one of the leading members.”
He pointed out that the British Government won 98 per cent of the cases brought against it. More graphically, he talked about the need to protect people from a “tabloid lynch mob”.
Dominic Grieve described plans to rework Britain’s relationship with the European Court of Human Rights as
“the kind of cockamamie scheme that would, quite correctly, be considered laughable if it were copied by, say, Vladimir Putin”.
By “cockamamie”, we mean something ridiculous, incredible or implausible. He went on to say:
“The inference is that when the UK Government doesn’t like something that the court’s done it’ll just use parliament to not implement what it has signed up to.”
He said that the concept of parliamentary sovereignty was “open to misuse”.
Given those comments from their own side, why are the Conservatives pursuing this course? We can be in no doubt that the relentless move towards adopting a Eurosceptic agenda to pander to UKIP, even when it relates to an institution that is not even part of the European Union, is paramount. Although our worst fears in relation to the European arrest warrant look unlikely to be realised despite the shambles in the House of Commons last night, we should be in no doubt that the Conservative leadership will continue to bang the anti-European drum in its desperate search for votes. Its plans are bad not only for Scotland, but for the UK, the Council of Europe and Europe itself.
It is hard to imagine that, back in November 1950, the UK signed the convention on its first day and was the first country to ratify it a year later, long before the UK even thought about joining the European Union, or the Common Market as it was known then. As has frequently been said, the convention was a reaction to fascism and Nazi horror. It provides protection for basic political and civic rights, which are the marks of a civilised society. Any attempt to incorporate wholesale economic and social rights was expressly ruled out by the initial negotiators—men of a Conservative bent such as the Edinburgh-born, subsequent Home Secretary David Maxwell Fyfe, who was a Liverpool MP in the days when Tories could win in Liverpool.
What is fundamental to the convention is that it responds to changing norms. It is a living instrument, as constitutional lawyers describe it, and a treaty that must be interpreted in the light of present-day conditions so as to be practical and effective, as the Scottish Human Rights Commission points out.
The court has led the way on issues of sexual orientation, providing valuable protection for LGBT people, where it has allowed national Governments only a narrow margin of appreciation. It has led the way in opposition to capital punishment, which is now the subject of an important protocol to the convention, at the same time as laying down important markers in relation to fair trials, as we know in Scotland.
What is it that so upsets these Tories? Is it the right to marry under article 12, the right to freedom of conscience under article 9 or the right to freedom of expression under article 10? I think not. Issues in relation to whether there is a right to privacy, balancing articles 8 and 10, are also recognised as complex by UK domestic courts. It seems to me that, apart from blatant anti-Europeanism, concerns about the alleged inability to deport foreign terrorists and criminals are up there.
However, article 3, which prohibits torture and inhuman or degrading treatment, does not stand alone. The UK is a signatory to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and, although it is true that the European convention on human rights creates positive obligations not to deport or extradite individuals to countries that practise torture, I cannot believe, in the light of the UK being a signatory to the convention against torture, that any British court, even without the help of the European Court of Human Rights, would dismiss those arguments if they were addressed in a domestic forum.
Maybe it is true that, in opposing a blanket ban, the European court has not paid proper attention to the margin of appreciation in prisoner votes cases, but we must recognise that, on that issue, the United Kingdom may well be in a minority in Europe.
What of that other supposed bugbear—the right under article 8 to a private and family life? It is sometimes overlooked, although I think that Jackson Carlaw conceded the point that it is not an absolute right but is limited by, among other things, interests of national security. A British or English bill of rights would undoubtedly be very similar.
What of Scotland? When the members of the UK Equality and Human Rights Commission visited the Scottish Parliament in December 2011 for a private meeting, it is fair to say that they were, in the main, surprised that there was no widespread demand to replace the Human Rights Act 1998 with a British bill of rights. To be fair, that is reflected in the Commission on a Bill of Rights report of December 2012, which is a sizeable and impressive tome and is in sharp contrast to the Conservative proposals that were published in October. Apart from a small reference to the claim of right of 1689, we could be forgiven for thinking that Scotland did not exist at all. As Nick Cohen wrote in The Observer, it is clearly not a British bill of rights that is being proposed, but an English one.
What message does that send out to novice democracies in eastern Europe? Does it send the message that rights are not absolute and can always be overruled by Parliaments of the day in those countries?
As the minister said, the Parliament is embedded in human rights. Let us work to build on that foundation and oppose those who seek to undermine it for short-term political advantage.
15:40
The Scottish Liberal Democrats will also support the motion, which sets out a robust defence of human rights.
Some politicians and media would have us believe that, taken together, the European convention on human rights, the European Court of Human Rights and the Human Rights Act 1998 somehow amount to a criminals’ charter or a terrorists’ treaty. That is, of course, nonsense.
In preparing for the debate, I took the time yesterday to read some of the recent cases relating to the United Kingdom that have been considered and upheld by the European Court of Human Rights. In one case, the court identified that safeguards were insufficient in enabling an applicant with Down’s syndrome to contest their compulsory emergency detention, given that they lacked legal capacity. That violated articles 4 and 5 of the convention. In another case, the court judged that a local authority had failed to provide a disabled elderly person with a care plan that met her “assessed and eligible needs”, in breach of article 8 of the convention, on respect for private life. Given the explosion in the use of non-statutory stop and search, I was interested to read about a police stop and search that again constituted a violation of article 8 of the convention.
The court has considered situations that have involved people who have been taken into care; it has protected the anonymity of journalists’ sources; and it has curbed the storing of the digital DNA profiles of those who were arrested, but were never charged or convicted. Such cases show the institution’s relevance to all of us, but in particular to the most vulnerable in our society here and across Europe.
The court has required Russia to improve its treatment of prisoners, forced Bulgaria to strengthen its care of disabled people and compelled Turkey to end the impunity of those who engage in domestic violence.
The creation of a common legal space to the benefit of 820 million citizens across 47 states is an astonishing achievement, but, as one senior British court official reportedly mused,
“Our name contains the words ‘European’ and ‘human rights’. Not exactly a winning combination.”
A tiny minority of cases, which have been portrayed as meddling in our domestic affairs, have led to the whole system being unfairly maligned. It is disappointing that the Conservatives’ amendment, which seeks to remove any expression of support for the Human Rights Act 1998, echoes such attitudes.
The Human Rights Act 1998 did not provide new rights; it incorporated into UK domestic law the rights that were provided by the convention. Driven by fear of UKIP, the Conservatives’ plans to selectively ignore the convention, limit its powers or withdraw from it entirely are ill considered. I am particularly disturbed by their proposal that somehow only the most serious cases should be able to draw on human rights law. What message would that send to others? What message would it send to the countries that account for tens of thousands of cases at the European Court of Human Rights?
To put the matter in perspective, just 1,650 applications came from the United Kingdom in 2013. I understand that the majority of them concerned prisoner voting rights. Just eight cases led to judgments finding violations. In that context, it seems absurd even to contemplate withdrawal and undermining our moral authority.
I am proud that, with Liberal Democrats in government, there is no possibility of the UK renouncing our hard-won human rights framework. Alongside the scrapping of identification cards and the ending of child detention, that is part of our strong and consistent record on civil liberties.
In Scotland, the Liberal Democrat MSP Robert Brown was the minister who guided through Parliament the bill that established the Scottish Human Rights Commission. As a result, Scotland’s first national action plan now seeks to promote a
“consistent understanding and respect for human rights”
by making them more tangible. For example, it identified the need to improve the quality of care for vulnerable and older people; the need to empower them to remain autonomous as far as is possible; the need to treat them with dignity and respect; and the need to realise their rights.
The action plan reminds us that human rights define how each one of us is treated and determine our opportunities. It tackles the dangerous perception that human rights are abstract or immaterial and encourages us to embed them in everything that we do.
By supporting the Government’s motion, I by no means applaud its record on human rights. At times it has damaged our credentials: by failing to raise the age of criminal responsibility; through its efforts to scrap corroboration; and because of the isolation for long periods of female offenders who have mental health problems.
On this remembrance day, it is worth remembering the events that led to the creation of the convention. It is worth recalling the abuses in the early 20th century that caused the United Kingdom to lead efforts to enshrine and instil respect for life, security and freedom of thought, expression and religion across the continent.
Our human rights framework and the rulings of the European Court of Human Rights are not foreign impositions—they are British rights, drafted by British lawyers, that are designed to reflect our values of justice, democracy and the rule of law.
15:46
In The Guardian on 3 November, Thorbjørn Jagland, secretary general of the Council of Europe, said:
“When politicians in established democracies such as the UK threaten to leave the ECHR for essentially domestic reasons, this is likely to have negative repercussions on the respect of fundamental freedoms in Europe’s younger democracies. Conservative party proposals to render the binding decisions of the Strasbourg court merely advisory, if enacted, will be welcomed by regimes less committed to human rights than the UK.”
In her opening remarks, the minister pointed out that, at this moment in time, all European countries, bar Belarus, have signed up to the ECHR. The minister also mentioned Kazakhstan, but as it is east of the Urals, I do not feel that it is in Europe. My geography teacher would have been proud to hear me say that.
If the UK left the EU, we would be entering an area in which our only bedfellow was Belarus, which Condoleezza Rice labelled as one of the six “outposts of tyranny” in the world. Let us look at Belarus and its record. Nine per cent of the total workforce cannot leave their jobs at will—they require permission to do so. When he was asked whether that was a form of serfdom, President Alexander Lukashenko shrugged his shoulders because he knew that it was. In Belarus, there is no freedom of religion and no freedom of the press, and anti-Semitism, homophobia and racism all exist. Do we honestly want to be the bedfellow of Belarus?
Dominic Grieve, the former Attorney General of England and Wales, said in The Telegraph on 9 October, when he was still the Attorney General, that
“if the UK left the ECHR it would become a ‘pariah state’”
and
“It would put us in a group of countries that would make very odd bedfellows”.
He was referring, of course, to Belarus. He went on to say that it would “jeopardise” the UK’s international standing.
In his opening remarks, Jackson Carlaw said that there would be a lot of hyperbole today. He might see what I have just said as hyperbole but Dominic Grieve, in this case, is more likely to agree with me than with Mr Carlaw.
Many members have touched on the rights that we have under the ECHR. Many have talked about the conflicts that exist between each of the articles, and it is right that those conflicts should exist. Other members have talked about some of the decisions that have been taken by the European Court of Human Rights that the Government here has not been happy with. That is fair play. If Government was happy about every aspect of the ECHR, the ECHR would probably not be working properly.
What I want to see is respect for the convention to which people signed up in Rome on 4 November 1950. I hope that in future countries such as Belarus will sign up to the convention and provide a means to ensure that their people’s rights are upheld.
As Rod Campbell rightly pointed out, over the past few days we have witnessed a Tory Government pandering to Ukippery. That is leading to huge problems for the Tory Government. Yesterday we witnessed the farce of a vote about the European arrest warrant that was not a vote about the European arrest warrant. Such debates are taking place quite simply because the word “European” is in the title.
It is time to stop pandering to Ukippery. It is time to look at the benefits of signing up to the ECHR, to ensure the protection of our most vulnerable and to ensure that we do not become the pariah state that Dominic Grieve envisages. I support the motion.
15:51
Presiding Officer, thank you for the opportunity to speak in the debate. I will focus on the day-to-day aspect of human rights that is mentioned in the motion—the realisation of human rights here at home. I suppose that I am also suggesting that we need to caution against self-congratulation.
Let me start with a quotation. It is a bit lengthy, but it is food for thought for us all:
“Where after all do universal human rights begin? In small places close to home—so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.”
Those are the fine and inspiring words of Eleanor Roosevelt, an architect of the Universal Declaration of Human Rights all those years ago. Professor Alan Miller included her words in his foreword to Scotland’s national action plan for human rights, which the minister and other members have mentioned.
Some people say that words and phrases such as “equality”, “social justice” and “a fairer society” are bandied around too often and too lightly these days, so that they become devalued and lack meaning for all our citizens. The minister referred to the issue when she emphasised that making rights real for people is everyone’s responsibility.
If we are to realise human rights we need not just words but action. The challenge is to shift power and influence from institutions and Governments to communities and, above all, individuals.
As the Christie review of 2010-11 argued, we need to change the culture of how our public services are delivered. We need to move away from top-down delivery and towards a clear focus on early years, prevention and the empowerment of individuals. It is through such change that we have the possibility of changing the culture, which will ensure the rights that matter most to people in the present day: the right to a decent home; the right to work; and the right to access the best health and social care services available—services that are tailored to the needs of the individual.
The Christie commission’s conclusions and recommendations were widely accepted, because we all agree with fine words. Of course, achieving the objectives is easier said than done. Those who have influence and power rarely pass them on easily.
We have heard today of the significant progress that has been made. More important, however, we have heard from people outside the Parliament lobbying us in the lead-up to the debate about the progress that needs to be made and telling us that our progress so far has been slow and sporadic.
That view is underlined by my work and the work of my colleagues on the Health and Sport Committee, which has shown me that the road to change—towards personalisation and individualisation—is very hard indeed. With regard to the attempt to ensure that all elderly people are treated with dignity and respect, the move towards ensuring that more people are cared for within the home and the attempts to reduce health inequalities, progress has taken a significant amount of time. That is because we are challenged by vested interests here at home, and those vested interests need to be challenged. We have seen that from the evidence on the Government’s self-directed support legislation, the integration of health and social care, our inquiry into access to new medicines for the end of life and rare diseases, and the challenge of inequality—we know that disempowerment shortens people’s lives.
Despite the broad welcome for Christie’s realistic words and despite the warm words such as “equality” and “a fairer society” that we bandy about so casually in this place, the difficulty is that we use those words without describing to our citizens how difficult it is to get to the place where we all supposedly want to be and to take the hard decisions that need to be taken.
We should always remember that focus—that human rights are people’s rights. They are not the property of politicians and the chattering classes. The right to work, the right to a decent home and the right to access public services are rights that matter to people. It is time that we stop using the warm words, turn the page and make real progress. The time has passed for simply using brave words; we need brave politicians to make progress.
15:58
At the outset of my speech, I declare an interest in that I am a member of Amnesty International and my wife works for Amnesty International—indeed, she provided its briefing for today’s debate.
Today’s brief remembrance service in the garden lobby was a salient reminder of the huge sacrifice that so many have had to make to secure the fundamental and universal human rights that are indivisible from each of us. We would do well to bear that sacrifice in mind when we debate changes to our human rights framework.
I agree with the motion before us. The Conservative amendment in and of itself does not necessarily contain anything objectionable per se and Mr Carlaw made a largely reasoned argument. I did not agree with it all but I believe that he made his case reasonably. However, I cannot fail to notice that the Tory amendment deletes the part of the Scottish Government motion that confirms the Parliament’s support for
“the Human Rights Act 1998 as a successful and effective implementation of”
the ECHR
“in domestic law”.
I believe that it has been important to have the convention in domestic law, and I will return to that.
Mr Carlaw’s amendment also talks about believing
“that human rights must be protected in a manner that promotes public confidence and remains fitting to the spirit of the convention and other international statements of rights”.
I am concerned about the use of the phrase “fitting to the spirit” of the ECHR. I take on board Mr Carlaw’s suggestion that various articles of the ECHR could be incorporated into a bill of rights, but the idea of “the spirit” of the ECHR does not seem an overwhelmingly strong guarantee, as far as I am concerned.
It is not only me who is concerned about replacing the Human Rights Act 1998 and the UK commitment to the European convention with a bill of rights. The Health and Social Care Alliance Scotland is
“concerned that a significant risk exists to the level of protection for human rights for people in Scotland in light of threats to repeal the Human Rights Act 1998.”
The Scottish Human Rights Commission has said:
“Any attempt to limit accountability for the exercise of power, as many proposals for such a Bill of Rights do, would undermine the principles of the rule of law that are fundamental to the universal and effective recognition of human rights.”
Mr Stewart spoke of Dominic Grieve’s concerns about the international impact of withdrawal from the ECHR. Mr Grieve also said that the UK Government’s position
“completely undermines the UK’s position as a rule of law state internationally for almost no benefits and shows a complete lack of understanding of legal principles.”
Therefore, there is not even unanimity in the Conservative Party on the matter—although I accept that Mr Carlaw conceded that in his opening speech.
Mr Stewart also reminded us of the comments of the secretary general of the Council of Europe, who suggested that, if the UK stepped back from the ECHR, that would be
“welcomed by regimes less committed to human rights than the UK.”
That may be felt to be dramatic, but let us remember the point that Mr Stewart and the minister made that the UK would be one of only three European countries outwith the ECHR’s terms. As Rod Campbell reminded us, the findings of the final report of the UK Commission on a Bill of Rights in December 2012 showed that civic Scotland does not want the current legislation to change.
The rhetoric that is employed on human rights does not reflect the reality of the situation. Organisations that have briefed us for the debate, such as Amnesty International and the SCVO, have called for a more positive frame of reference when we debate such issues, not just in Parliament but in society as a whole. Amnesty International reminds us that, far from the Human Rights Act 1998 being a charter for ambulance chasing in the legal profession as is sometimes argued, it has allowed for a culture change. Amnesty states:
“The Human Rights Act has fostered a valuable and non-litigious culture through which human rights considerations now inform the work done by public authorities”.
Far from increasing the case load, the act is changing the culture in our public organisations.
Even when recourse to the courts has been sought, it has not been primarily about prisoners challenging the terms of their imprisonment or those whose views we find repugnant challenging attempts to extradite them. Amnesty International reminds us that the act can be and has been used here to ensure appropriate dietary requirements for patients in hospitals and care homes, under articles 2 and 8; to prevent or remedy abuse or neglect of the elderly, learning disabled or otherwise vulnerable people, under articles 2 and 3; to prevent or remedy disproportionate targeting of black and minority ethnic people by police and other authorities, under article 14; to ensure that gay and lesbian partners are granted the same rights as heterosexual couples, under articles 8 and 14; to prevent and redress the excessive surveillance of law-abiding people, under article 8; to support those who are not sufficiently protected by the authorities from stalking, harassment and domestic abuse, under articles 2, 3 and 8; to ensure that children with special educational needs are not prevented from receiving an education, under articles 2 and 14; and to ensure that people are not prevented from demonstrating or expressing themselves freely, under articles 10 and 11.
The Scottish Human Rights Commission also provided a significant number of examples in which people have used human rights legislation in the courts to challenge a variety of matters, including the protection of military personnel. When the families of several soldiers in Iraq whose vehicle was hit by a roadside bomb sued the Ministry of Defence using the Human Rights Act 1998, the UK Supreme Court found that the Government owed a duty of care to properly equip and train soldiers who are sent to war, as part of its duty to protect the right to life.
Those are just a few examples of the practical nature of human rights legislation. They show why the words of Eleanor Roosevelt that Duncan McNeil cited resonate to this day. Let us work to protect those rights, rather than allow them to be run down.
16:04
I trust that the minister has enjoyed the afternoon, because it is not usual for the Government to be able to propose a motion and not suffer the slings and arrows of Opposition criticisms about its content. I am pleased to say that, having reviewed the motion before coming to the chamber, Scottish Labour supports it without reservation.
I listened carefully to Jackson Carlaw’s speech and took seriously the views that he expressed. He mentioned his experience of seeing the Gorbals from the family car as a child and realising the challenges that people experienced throughout the 1950s and 1960s in Glasgow. Without trying to score a point in any way, I ask him to consider that, had he been a member of the community that he viewed, human rights might be a more sensitive issue for him and he might consider a European convention on human rights to be a crucial part of modern life.
As we commemorated in the two minutes of silence in the Parliament today the millions who gave their lives, I wondered what the soldiers in the trenches would have made of why they were sitting there fighting the first and second world wars. It would not have been for profit, wages or land. I am certain that, had they been able to write out why they were there, in the cold light of day, they would have written the articles of the convention in the mud and glaur of the time. As a result, the detail in the convention is vital to the way in which the state conducts its business for the future.
I am grateful to Mr Pearson for the spirit in which he put the point that he did to me. I emphasise again that we support the European convention on human rights and have said that the whole convention would be enshrined in the letter and spirit of the bill of rights that is envisaged. It is not the European convention on human rights with which we have an issue. I understand what Mr Pearson says and I accept it.
I am grateful for that intervention, but Jackson Carlaw knows that we are sensitive to any impact that introducing the UKIP influence into our British legislation might have.
I acknowledge that Mr Carlaw commented that the Human Rights Act 1998 was a Labour piece of legislation. I am proud of the fact that Labour introduced it.
I also acknowledge that Amnesty, the Equality and Human Rights Commission, the SCVO, the Scottish Human Rights Commission and the Scottish Catholic International Aid Fund were good enough to provide briefings before the debate. Those briefings were proper and helpful but, to some extent, they miss a point: human rights are not compartmentalised in the way that they are applied and often have to be applied to pursue individual cases; they are for us all and play a part in our everyday lives.
The minister commented about some individuals applying common sense in criticising human rights. However, common sense is often only a person’s view or prejudice. The minister was correct to acknowledge that those commonsense criticisms were often ill founded or ill conceived.
Parliaments exist to exercise the sovereignty that their citizens grant them. In the absence of genuine human rights that are applied day to day, there can be no sovereignty for our Parliaments because the consent to exercise power on the citizen’s behalf is absent where citizens have no genuine rights and freedoms.
Jackson Carlaw asked about some examples of the way in which human rights have affected our day-to-day existence. Slopping out caused a great deal of anxiety when it became a public issue in Scotland. However, who can now visit a modern prison and not be shocked at the thought that only a decade ago—before we went through our experience with the issue—prisoners in Scottish prisons slopped out every day?
The other example that I would give is an international example of a situation in which one nation state dealt with human trafficking by returning women who were trafficked for sexual purposes to the nation state that they had come from, which then sent them back to the state that they were being exploited in, only for them then to be murdered. The European Court of Human Rights decided that the nation state that returned them to the place they had come from had failed in its responsibilities to those women and that they should have been protected and not returned to another nation state where they were murdered.
This debate is useful in that it has allowed us to rehearse why human rights are important to us. I hope that we not only reinforce these rights but extend them to all.
16:11
As convener of the European and External Relations Committee, I have been particularly conscious of the importance of EU law when it comes to our inalienable fundamental rights, which are defined as those
“to which a person is inherently entitled simply because she or he is a human being.”
I am not trying to teach any of my grannies—much less Jackson Carlaw—to suck eggs, but I think that it is important for all of us to be conscious of just what human rights we have enshrined in law, rather than the tabloid-headline-grabbing version that is promoted by the Tories, as they try to win UKIP votes.
What are those rights? Many have been mentioned this afternoon: the right to life; the right not to be tortured or enslaved; the right to have somewhere to live safely; the right to have an education; the right to a reasonable working week; the right to maternity leave and paid holidays; the right to freedom of conscience, religious faith and sexuality; and the right to be free from discrimination. Other important rights include the right to freedom of assembly and association; the right to marry; and the right to liberty and security.
In Scotland, we take all of those and more for granted. We assume that our human rights will not be infringed and that, if they are, we will have recourse to the law to seek redress. The legal framework provides a safety net for all of us, especially the most vulnerable, so that we have the right to challenge everything from the unfair impact of the bedroom tax to the kind of outrageous prison conditions that should not exist anywhere.
Currently, with the rising tide of extreme nationalism and the apparent desire for total isolation from the rest of Europe, every one of those assumptions is open to challenge. The debacle—or, perhaps, the omnishambles—over the European arrest warrant reveals the kind of short-term politically driven point scoring that should be making us all tremble. Do we want to welcome the kind of society that is backtracking on those fundamental rights at every opportunity? Do we want some kind of medieval rule by the rich and the elite, running serfs, owning all the property and abusing the women? This is just the UKIP flea on the tail wagging the dog, but we are being pushed along a terrifying cliff edge towards that possibility.
The Conservative proposals to repeal the Human Rights Act 1998 and risk expulsion from the European convention on human rights would seriously jeopardise the rights of people in Scotland. Once again, we will be pulled along behind the will of London.
We will not accept that. Without the agreement of the Scottish Parliament, in which the human rights convention is enshrined, David Cameron cannot dump our human rights. We have heard a lot about that this afternoon. I thank God that we have at least that much devolution. I hope that the rhetoric about our being an equal member of this family of nations is honoured, especially on this issue.
A few weeks ago, Professor Alan Miller, the chair of the Scottish Human Rights Commission, said:
“The European Convention provides protection to hundreds of millions of people in 47 countries across Europe. Its achievements include challenging abuses of rights and raising the bar in countries like Russia and Turkey with poor human rights records. This is something to be proud of.”
Professor Miller went on to say:
“The laws that protect our human rights protect all of us, whoever we are. They enshrine internationally agreed standards that all governments should respect. These proposals would block access to protection for people’s rights in hospitals, in care homes, at work and in a whole host of other everyday settings.”
That was a point eloquently made by Duncan McNeil earlier.
Professor Miller continued:
“This is a pick-and-mix approach to human rights that is firmly on the wrong side of history.”
I sit on the governance committee of the Council of Europe, which, earlier this year, took the Scottish national action plan on human rights and used it in a debate to suggest that it could be the standard for all European countries to live up to. Scotland is leading the way on human rights and we do not need to be pulled back by the short-sighted, narrow, right-wing rhetoric that is coming from Westminster.
On this remembrance day, let us not go gentle into that good night for, in the morning, we will suddenly be exposed to a very dangerous new world.
16:16
I, too, declare my membership of Amnesty International.
The Scottish Human Rights Commission was established by the Parliament in 2006. It says that
“the Human Rights Act 1998 ... should be the legislative bedrock for further progress in realising human rights in people’s everyday lives”.
As we have heard from many members, the Scottish national action plan is the road map—as the SHRC describes it—for that.
I commend the motion, particularly the words
“should be a source of unity and consensus”.
In everything that we do in the chamber, we should ask ourselves, “Who says that?”, “Why?”, and “Based on what?” In my research in advance of the debate, I found that the Daily Express refers to the “hated Human Rights Act”. We must ask why. It is because it is pandering to prejudice—prejudice that it and other journals have created.
The minister has laid out a résumé of the position of the UK parties. I contrast the words of the Daily Express with a blog by Isabella Sankey of Liberty who, in February 2014, said:
“Today the Conservatives unleashed their long-awaited plans to repeal our Human Rights Act ... and replace it with a so-called ‘British Bill of Rights’ ... The proposals are legally illiterate, politically provocative and designed to put us on a collision course with the Court of Human Rights and likely lead to the UK’s ultimate departure from the Convention of Human Rights and the Council of Europe.”
Although the Labour Party is to be commended for its work on human rights in the past, the blog goes on to say:
“The HRA is not ‘Labour’s Human Rights Act’. It was passed with overwhelming cross party support and Tory leadership endorsement.”
That is important.
What is also important is that human rights should be relevant to everyday lives. It was heartening for me to witness Highland Senior Citizens Network’s engagement on the Scottish national action plan. Many of those involved said that they did not see the issue as relevant in the past. However, when we talked to them about the interests that they look after—namely the wellbeing of individuals in care homes and of vulnerable people—and about the dignity that people receive as a result of human rights legislation, they saw that the legislation was relevant.
I am grateful for the specific examples that we have received from many of the people who have provided briefings. A lot of them tell a familiar tale, although it will still surprise some of us, of accessibility issues for disabled people. I am keen that the legislation should be seen for what it is, which is legislation to protect the citizen. The interests of corporations are well protected by tight legal frameworks. The Human Rights Act 1998 is seen as very proactive by parliamentarians. If it assumes a challenge, that is appropriate. It is appropriate that our committees should challenge legislation to ensure that it is robust in human rights terms.
There has been a lot of talk about the European arrest warrant. I am on the Justice Committee, which looked not just at that issue but at the European judicial network and a number of other measures. It was most frustrating that that was all seen as an attack, or a foreign imposition, without any consultation with the Crown Office and Procurator Fiscal Service, the Scottish Government or Police Scotland. I ask the proponents of that approach how the wellbeing of witnesses and victims was considered when that position was being adopted.
Human rights are an on-going issue. The Scottish Human Rights Commission is involved in looking at possible reforms and the system’s continuing relevance.
Associated with the position taken by the Conservative Government is the opportunity to attack other vulnerable groups, such as children with parents facing removal or deportation from the UK. On the reserved matter of rights at work, we already have the situation where health and safety is referred to as the monster. The wellbeing of soldiers was alluded to. We know from Dungavel the challenges of the positions of the two Administrations on people seeking refuge in Scotland.
I align myself with comments made by Margaret McCulloch, the convener of the Equal Opportunities Committee, of which I am a member. She made passing reference to the position of Gypsy Travellers. As Duncan McNeil has said, not everything is rosy in the garden in Scotland either; reprehensible attitudes are still adopted in respect of the economic, social and cultural rights of the Gypsy Traveller community. I commend the role of Amnesty International, the Minority Ethnic Carers of People Project and Article 12 in Scotland in that regard.
The most important thing is that human rights have to be relevant to people’s everyday lives. I will pick up on a point that a number of members made about Scotland’s position in the international community. That relates to the operation here in the Parliament, the SHRC and its standing, and the way in which we have conducted ourselves on equal marriage and through Scottish Government statements about Palestine and Gaza, which I contrast with statements made elsewhere.
We must have a rights-based approach. I had hoped that that would be adopted and enshrined in a constitution—we may yet see that. It should not be comfortable for Governments. I certainly hope that it is not comfortable for Governments that would abuse their power through GCHQ and intrusion into people’s lives and by treating people coorsely under asylum procedures.
The use of language is very important. One thing that our Conservative and Unionist Party colleagues would agree with is the phrase “rights and responsibilities”, which are an important combination.
The motion uses the phrase
“a source of unity and consensus”.
I hope that the convention would be a source of unity and consensus but, if it is not, I am perfectly happy to see the Conservatives isolated with their friends in UKIP and President Lukashenko, although it would be better if they were inside and co-operating.
16:22
I am delighted to speak in the debate. I speak of course as a member of this Parliament. The Scotland Act 1998 refers specifically to the Human Rights Act 1998 and the European convention on human rights. It puts human rights protections at the heart of the Parliament.
I also speak as a foreign national—one of the people whom the Conservative Party wants to stigmatise and from whom it wants to remove human rights and dignity, which would marginalise generations of EU and foreign citizens living here in Scotland and across the UK.
For me, as for the rest of the people living here in Scotland, the direction of travel is clear. We want human rights to be strengthened, not diminished. We want human rights to apply to everyone equally, wherever they come from and wherever they live.
Everyone has rights. I remind the Conservative Party that we might not all be British, but we are all human. I am offended by the notion that my rights would be lessened by some politicians at Westminster in order for the Tories to gain a few votes in middle England.
Many in the debate have followed the recommendations from the Scottish Council for Voluntary Organisations, which pled in its briefing for the debate to be positive in its language and tone. I was surprised by the contributions from Duncan McNeil and Christina McKelvie, which were very measured. It is true that a positive debate is needed, but the language that is used to stigmatise foreign nationals, people on benefits and others who are already marginalised by Westminster—that language is used by politicians who should know better—has to be challenged.
There is a reason why most of us in the Parliament strongly oppose any attempt by some at Westminster to repeal the Human Rights Act 1998 or to withdraw from the European convention on human rights. The reason is that human rights protections and the 1998 act are central to the law of Scotland. We must do everything within our limited powers to ensure that those protections remain in place for every one of us.
Our attitude to human rights in Scotland is progressive; the language and the tone about human rights that some politicians at Westminster use are alien to us all. To be fair, I think that most Scottish Conservatives—as we are seeing today—are finding it difficult to promote the UK Government’s human rights agenda. I read in the Conservative amendment that it is in the spirit of promoting public confidence that Jackson Carlaw proposes to withdraw from the European convention on human rights. Who is undermining public confidence in our ability to protect human rights, if not the Tories at Westminster? I have read parts of their proposals. They talk of foreign nationals committing crimes in the UK—that is on page 3 of “Protecting human rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws”.
The Conservatives talk about restricting the rights of others, to protect British people. On page 2 and again on page 5, they say that we must “put Britain first”. That tone and that language do not belong to this century. I explain to Conservative members that we must always put human rights—not Britain—first. They are human, not British, rights. I say to the Conservatives: hands off our human rights.
The idea of putting Britain first, before human rights, is narrow-minded nationalism, which I will always reject. That is all about the constant pandering to UKIP voters. That will not work—it will just give more votes to UKIP south of the border.
I think that it was Christina McKelvie who spoke about the right-wing agenda. She perhaps got that wrong in the sense that, although there may be a right-wing agenda, it is a lot more right wing than we think that it is—it is well past UKIP and is on the fringes.
I say to Mr Carlaw that everyone can see that the anti-Europe brigade has taken over the Conservative Party. There is no renegotiation of the UK relationship with the other EU nations; the party’s only goal is a sharp exit from Europe.
An aspect of the Conservatives’ proposals that makes no sense is the Westminster Government’s intention to stop British armed forces overseas being the subject of human rights claims—that is on page 7 of their proposals. The Tories say that human rights undermine the ability of our young people serving abroad to do their job and to keep us safe. I do not know about keeping us safe, but the Westminster politicians do not get it—human rights are essential to protect our young men and women serving overseas; human rights keep them safe.
On page 6 of their proposals, the Conservatives tell us that they want to
“ensure that Parliament is the ultimate source of legal authority”.
They are talking about the Westminster Parliament, which trusts our human rights to be protected by an unelected chamber of nearly 800 members who are nominated for life. That tells us a lot about the Britain-first approach that they want.
This Parliament would rightly expect me to challenge the tone and the language used by too many Westminster politicians, which stigmatise foreign nationals. Those politicians are the only ones who are undermining public confidence in our ability to protect and defend human rights. In this Parliament, under this Scottish Government, we have the assurance that human rights legislation will remain in place for every one of us.
16:29
As my colleagues have said, the Labour Party has a proud record on human rights. It introduced the Human Rights Act 1998 and enshrined human rights in the Scotland Act 1998. That year also marked the 50th anniversary of the United Nations Universal Declaration of Human Rights, which was introduced after the second world war when an earlier Labour Government was in power. That was closely followed by the European convention on human rights in 1950, with British lawyers playing a prominent role in its development.
The Scotland Act 1998 states:
“A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law.”
As a result of that act, Westminster cannot repeal the Human Rights Act 1998 in Scotland. In addition, no Scottish Parliament act can modify the Human Rights Act 1998, which brought the ECHR provisions into UK law.
As we know, decisions on compliance are taken by the UK Supreme Court. That is the same Supreme Court that Scottish National Party leaders attacked and from which the Cabinet Secretary for Justice wanted to withhold funding, which earned him widespread criticism and calls for his resignation.
By contrast, Labour is proud of what we set up and we stand by our human rights laws, which have protected the rights of victims of crime, the elderly, the disabled and gay people. Between 1997 and 2010, the Labour Government did more than any other Government in British history for LGBT rights.
Equally, we have a long record of supporting women’s rights through equal pay legislation, support for family-friendly policies and action to stop abuse of and violence against women. We fully support continuing to be a signatory to the ECHR.
As we have heard, the Human Rights Act 1998 has had a significant impact on issues such as gay rights and the treatment of rape victims, yet more can be done. For example, modern slavery still exists here and abroad. There are victims of human trafficking in Scotland, and I congratulate Jenny Marra MSP on her proposed human trafficking bill.
I pay tribute to campaigns such as the walk free movement that have gathered support for the proposed bill and for action throughout the world against modern slavery. In the public consultation on the bill, it received the backing of more than 50,000 people, which is the third-highest level of support received for a proposal in the history of devolution.
One victim of human trafficking is found in Scotland every four days, so it is vital that we have robust laws in Scotland to protect victims and punish traffickers. We welcome the Scottish Government’s commitment to do so, and we look forward to Jenny Marra’s proposed bill becoming law.
We need action to improve equalities and ensure fair representation—for example, by ensuring that there is gender balance in public appointments. We must remember that human rights are about not only legislation but the need for every one of us to recognise and promote those rights through what we do. As a party, Scottish Labour has promoted the 50:50 representation of women as MSPs and in our shadow cabinet.
We must support the Human Rights Act 1998, and we must act on human rights.
16:33
There is at the heart of the discussion that we have had this afternoon a broader philosophical debate about how we best protect and codify rights—a point that was mentioned by Jackson Carlaw and Graeme Pearson. That leads us on to the parallel question of how we deal with the conflict between codified human rights and, in a parliamentary democracy, the right to pass laws in accordance with the views of the majority. The question, as always, is this: where do we draw the line.
That brings in a second parallel point regarding judicial activism. We have seen such activism happening the United States over many decades, and in Europe, and we are now seeing it increasingly in our own country, where judges are taking it upon themselves to make laws in place of Parliament.
The issues are not black and white, and they need careful consideration. Not many speeches in the debate have acknowledged the complexity of the issues. Christian Allard said that he was surprised by the measured contributions from Christina McKelvie and Duncan McNeil. He was not half as surprised as we were.
However, there was more consensus in the debate than we might have expected, and I will concentrate on what we can agree on.
The first thing that we can agree on is that we all agree with human rights. The United Kingdom has a strong record of upholding human rights both at home and internationally. We sometimes forget that we have some of the highest human rights standards in the world, and that we constantly strive for improvement. That record goes back many centuries. We led the world in the abolition of the slave trade. Today, we see similar but different challenges in the form of human trafficking and forced servitude. I understand that the Scottish Government is seeking to legislate on the issue, and the UK Government has published its own bill to tackle modern slavery with the hope that there will be a UK-wide approach that has the support of the devolved Administrations. I hope that that support will be forthcoming.
Secondly, we all agree with codification of human rights. As Jackson Carlaw pointed out, the European convention on human rights was produced by a Scotsman, and not just a Scotsman, but a Scottish Conservative—David Maxwell Fyfe. A number of SNP members, including Christian Allard, suggested that we object to the wording of the convention and Rod Campbell asked which convention rights we object to. However, David Cameron has made it very clear that we do not object to the wording of the convention. Indeed, the wording of the convention will be the foundation of any British bill of rights that is introduced.
Nevertheless, it is in tackling how our human rights are incorporated in our domestic law that there are considerations to be made. There must always be robust protection of the rights that our country has agreed and stated, but we must also build public confidence in how those rights are protected. It is no secret that, although people see protection of rights as vital, there is significant concern about how the courts uphold rights in practice.
The UK Government has had problems in accepting recent European Court of Human Rights judgments on the right of prisoners to vote, and we have heard in the debate that those concerns are reflected by the SNP Government in Edinburgh. Yet our mutual position on the matter is under threat, thanks to decisions that were taken by the court in Strasbourg, which in our view do not support either the letter or the spirit of the convention.
That brings me to the third point of agreement: we all have concerns about interpretation of the convention by the European Court of Human Rights. There was some mention earlier of the former Attorney General for England and Wales, Dominic Grieve. He is an opponent of what is proposed by the Conservative Party at Westminster, but even he has said:
“This is not to say that the Court’s interpretation of the Convention is without issue. It has suffered from its transformation into a final court of appeal for those states whose justice system is wanting. This has made it unwilling to allow national courts and parliaments to interpret convention rights in line with that nation’s own political and cultural concerns. The most obvious example is Prisoner Voting.”
Dominic Grieve has those concerns, even as a Conservative. However, having concerns about courts elsewhere is not restricted to the Conservatives. In 2001, the First Minister himself objected to decisions being taken by the Supreme Court. He said:
“The idea that you need a court with a majority of judges from England to tell us how to implement human rights in Scotland, I think is an extraordinary way for—or belief—for any Scots lawyer to have.”
Jamie Hepburn decried the use of the term “ambulance chasing”, but that is precisely the term that the First Minister used to describe the judges in the UK Supreme Court. Kenny MacAskill, the Cabinet Secretary for Justice, has talked in derogatory terms about judges in the Supreme Court who did not know Scots law but who may have visited for the Edinburgh festival—a remark that rightly caused fury within the legal profession. Let us not forget that Scottish judges are not merely in a minority in the European Court of Human Rights; they are in a minority of zero, which is not the case in the Supreme Court. It is also extremely likely that the judges in the European court have not met even the justice secretary’s test of having visited for the Edinburgh festival. Only in the topsy-turvy world of the Scottish Government is it wrong for Conservative politicians in London to object to decisions that are taken by judges in Strasbourg, but perfectly all right for SNP politicians in Edinburgh to object to decisions that are taken by judges in London.
There is a genuine concern that members will find chimes with the concerns of many of their constituents. A solution is being proposed—a British bill of rights that would incorporate the convention rights and expand on them in ways that are appropriate to the UK. That would involve our remaining a party to ECHR, but would give us greater domestic control over how those rights are interpreted in relation to our existing legal and constitutional structures.
The minister said that our proposed change is about rights regression. I say to her, in all seriousness, that that is not the intention. As Jackson Carlaw pointed out, it would simply bring the UK into line with the situation that exists in Germany. No one would seriously claim that the approach of the German Government in having a different system undermines human rights. We should not claim that that would be the case here.
Despite the hysteria—or near hysteria—that we have heard, there is a serious debate to be had about the future and about how we can best secure our shared ambition of securing human rights. That debate is best held in a calm and reasoned fashion, so I hope that the Scottish Government will contribute constructively to it in that tone.
16:41
Murdo Fraser said that we should debate such matters calmly, but those who denigrate human rights, and those who peddle nonsense about illegal immigrants being allowed to stay in the country because they have a cat, and the newspapers—one of which John Finnie referred to—whose reports imply that human rights pertain only to criminals and other undesirables, are not instigating calm deliberation of human rights and their importance.
As others, including the minister and Roderick Campbell, have said during the debate, those who dislike human rights should reflect on why the Universal Declaration of Human Rights was adopted by the United Nations in 1948. It was a response to the appalling crimes that were committed in Nazi Germany, and under other tyrannies, against individuals on the basis of religion, race, nationality and sexual orientation. I am not suggesting that any member of the Scottish Parliament is as rabid in their distaste for human rights as some right-wing populists are, but I find it somewhat shocking that the UK, which for a while stood alone in Europe in fighting Hitler’s forces, as Churchill said,
“on the beaches ... the landing grounds... in the streets ... in the hills”,
might in the future backslide on human rights and fail to continue to provide international leadership on the issue.
If the unthinkable were to happen and a bill were to be brought to the UK Parliament to repeal the Human Rights Act 1998, I hope that every party that is represented here that supports today’s motion would put aside party differences at Westminster and unite to oppose such measures.
As others have said, there would be significant issues for this Parliament, because the Scotland Act 1998 refers specifically to the Human Rights Act 1998 and the ECHR. Ministers cannot legislate or act in a way that is incompatible with the convention. I believe that it is highly improbable that any elected Scottish Government would agree to the sort of changes that are being proposed, so I wonder how the Conservatives anticipate squaring that circle.
The myths surrounding the Human Rights Act and the criticisms of it can be countered by celebrating the extent to which the value of the human rights approach has been demonstrated in many areas. Several members did so, including Margaret McCulloch, Alison McInnes and Jamie Hepburn. Articles 2 and 3 protect vulnerable people from abuse and neglect. Article 8 protects law-abiding citizens from harassment and excessive surveillance by the authorities. Articles 10 and 11 protect our rights to freedom of expression and protest. Article 10, on freedom of expression, was applied by the European Court of Human Rights in order to reverse the decision of the UK Court of Appeal that a journalist who was working for the Financial Times be required to reveal his sources regarding the takeover of a company. The judgment recognised the importance of journalists being able to protect their sources so that they can use the information that is provided by them to inform the public.
I believe that freedom of information is intrinsically linked to human rights. The Scottish Executive and this Parliament recognised the importance of making information available to the public when we passed the Freedom of Information (Scotland) Act 2002, which gave the public the right to access information that is held by public bodies. That act has been used to disclose information about government at all levels—information that those institutions would probably prefer not to have been made known.
Ministers will recall that when we debated and passed the Freedom of Information (Amendment) (Scotland) Act 2013 in January last year, many members raised the issue of the need to extend FOI provisions to other organisations in the public sector that are in receipt of public funds, including registered social landlords and arm’s-length organisations. We were advised by the Scottish Government that it intended to make a section 5 order to extend coverage, so I would be interested to learn what progress has been made on that, as we approach the end of 2014.
Under article 11 of the ECHR, on the right to freedom of assembly and association, the blacklisting of workers for membership of trade unions or for highlighting health and safety concerns remains unresolved. Recent evidence to the UK select committee indicates that more than 3,200 construction workers were illegally blacklisted as recently as 2008. However, despite the outcry over the issue, companies that are known to have blacklisted workers are still receiving public contracts. The Scottish Government has said that it will require that remedial action be taken or contracts will be terminated, but we argue that those companies should not be awarded public contracts unless they have publicly made amends and compensated the affected workers, whose trade union rights were denied.
A human rights approach, as many have said, helps us to focus on outcomes for people, and provides a robust basis for decision making. Duncan McNeil illustrated in his speech the need for progress on such matters, and the desperate need to turn words into action and to recognise that human rights apply to everyone. There are implications for disabled people and people who are living with long-term conditions, who might be stigmatised because of their condition—especially if it renders them reliant on benefits—instead of their being perceived as human beings who are much more than their disability.
Christian Allard made the point, in a passionate speech, that human rights transcend national interests, and John Pentland said in his speech that we need to press forward and take action. I think that the overwhelming view across the chamber is that we should not be self-congratulatory, because we have not come to the end—to where we need to be—but are on a journey on which we need to make progress. There are hard choices for all of us in doing that, because human rights force us to focus on controversial issues including the age of criminal responsibility, whether some prisoners should have the right to vote and whether physical punishment of children is acceptable. Many of us, including me, will have initial instinctive responses to some of the controversial topics, but a human rights approach teaches us that that is just not good enough. It is not good enough to say “Well, it’s always been thus. This is how we do it.” Our responses must be tested and required to be justified, and we need to be open minded to challenge ourselves.
In his speech, Graeme Pearson referred to the changes in attitudes to slopping out. Now, we see such changes as completely acceptable, but at the time there was a feeling that somehow something was being imposed on the Scottish prison system from outside. We need to have much more of an open mind when we are challenged by the human rights approach on things that we had thought were normal and acceptable.
This debate on human rights has maybe taken place a little earlier than we had expected. I thought that the debate might have been held after the publication of the first annual report on Scotland’s national action plan for human rights, which was launched by the Scottish Human Rights Commission in December last year. I understand that the first annual report will be published on 4 December.
As we will recall from last year’s debate—Christina McKelvie referred to this in her speech—SNAP is the first action plan for human rights to be developed in the UK. In it, the SHRC prioritised empowering people to realise their human rights, and translating human rights into policy and practice. The action plan’s focus is on changing the culture and processes of Governments and institutions as much as, and possibly more than, on changing legislation. As the SHRC stated in its briefing, it is about taking human rights off the statute book and putting them into policy and practice. As well as celebrating the Human Rights Act 1998—most of us do—we need to look forward and consider not just legislation but, as others have said, how we ensure that human rights apply to everyone.
16:49
Today’s debate has been calm and reasonable, but I wish that I could say the same about all those who denigrate human rights, misrepresent what human rights mean and talk of trivial cases. Unfortunately, some of those voices are being heard very loudly at the moment in our public discourse.
It is often said that the health of a democratic society can be measured by whether the things that unite us across the political spectrum are stronger than the things that divide us. Our shared political experience since devolution certainly suggests that we have a very healthy democracy in Scotland, and this afternoon’s debate provides further convincing evidence—it is welcome if not surprising—that despite our differences there remains a powerful unity of vision and principle to be found among all members of this Parliament. Defending and promoting the fundamental rights that belong to all of the people of Scotland is self-evidently one of the principles on which we speak with one voice—not that we are saying the same thing about it, of course.
I am grateful to Jackson Carlaw for the sober and responsible way in which he opened the debate for the Conservatives. However, he is suggesting, I think, that David Cameron and Chris Grayling are simply promoting debate about how the UK implements the ECHR. We have had that debate before, a couple of years ago, when the UK Government’s Commission on a Bill of Rights travelled the UK to take evidence on exactly the same issue. Unfortunately, the Conservative Party does not seem to have heard the message from that previous conversation—that Scotland is not interested in ditching the Human Rights Act 1998 or retreating from the ECHR. That was clearly recognised in the work of the commission that was the focus of some of Roderick Campbell’s remarks.
That commission explicitly drew attention to the importance of the devolved dimension. Indeed, I gave substantive evidence to it, much of which flagged up the huge number of devolution complications that would occur if the UK Government continued down the road that it was on. Yet it is evident from the proposals published by Chris Grayling that devolution has barely registered. The best his paper offers is a throwaway reference. I suggest that that is not good enough. With Scotland’s constitutional journey being far from over, we might have expected the UK justice secretary to demonstrate rather greater awareness that Scotland’s views on this issue matter.
I acknowledge the various speeches that were made in the debate, particularly those from Alison McInnes for the Liberal Democrats and Elaine Murray and Graeme Pearson for the Labour Party. I also recognise the unequivocal support for the European convention and the Human Rights Act 1998 that was articulated by a great many members this afternoon. I particularly warmly welcome John Finnie’s remarks, and in doing so I also pay tribute to the immense contribution that he makes to the Parliament’s work in the field of human rights through his roles as convener of the cross-party group on human rights and rapporteur on human rights for the Justice Committee.
Today’s debate demonstrates that we are united not only in our commitment to human rights as the fundamental standards that define human freedom but in our belief that playing party politics with human rights is irresponsible and dangerous. The Human Rights Act 1998 and our commitment to the European convention on human rights are not political playthings to be cynically misrepresented for cheap electoral advantage. Both Jamie Hepburn and Kevin Stewart found Thorbjørn Jagland’s comments for themselves, so I will not repeat them. He is secretary general of the Council of Europe and, incidentally, both a former Prime Minister of Norway and current chairman of the Norwegian Nobel committee. I will, however, observe that a favourite son of Scotland once expressed the same sentiments in a rather different fashion when he wrote:
“O wad some Pow’r the giftie gie us
To see oursels as others see us!”
We should pause and consider the impact on the UK’s standing in the world if we go down the road that is being proposed. I say that genuinely. Essentially, we must all be careful to remember that, when we make public pronouncements that touch on the universal rights of all humanity, we do so not merely as politicians, nor simply as elected members of the Scottish or UK Parliaments, nor in my case as the relevant minister, nor in David Cameron’s case as the Prime Minister; we do so as citizens of the world with an obligation to all humanity.
I spoke earlier about celebrating the things that unite us in a democratic society. That unity requires a willingness to engage in respectful debate, so let me make it clear that I entirely respect the contributions that Conservative members have made to this debate and the questions that they have raised. However, when they talk of “mission creep”, are they really saying anything more than that society changes? We are not who we were in that early post-war period and we would not want that society back, with all its open prejudices and inbuilt discriminations. It is inherent in a human rights approach that we should always seek to question and review and to act in a manner that is balanced, reasonable and proportionate.
The minister raises a very interesting point, but will she reflect on the comment that I made about judicial activism and where final decisions should ultimately be made? Should those decisions be made by democratically elected politicians and Parliaments, or should law be made by judges, who are not elected?
The way in which our system works is that the judiciary are part and parcel of all of that. We do not separate them out. What I am hearing from the Conservatives suggests that they are moving towards separating them. I recognise that there is a very complex debate there.
It is true that giving proper effect to human rights can sometimes cause disruption to the way that we have traditionally done things but, as MSPs, we are all familiar with the need to uphold fundamental rights and to ensure that we keep current policies and practices under effective review. We can take key lessons from difficult cases.
A number of members have mentioned slopping out. That was a difficult issue at the time, but from that example we learned that fully integrating human rights thinking into the design and review of laws, policies and procedures produces a far more sustainable and robust result in the long term.
Can we get the matter into proportion? Some 99 per cent of cases that are brought against the UK as a whole do not succeed. As Alison McInnes mentioned, in 2013 only eight cases resulted in a finding that there had been a violation of the European convention on human rights. Both Scotland and the UK have every reason to be proud of that record. Given that so few cases are lost, there is some justification for the suspicion that what lies behind the Conservatives’ move has more to do with the current state of electoral politics south of the border than anything to do with principle. I ask the Conservatives to take that comment on board in the genuine spirit in which I make it.
As I have already observed, the idea that the UK should step back from its current commitment to the ECHR system has to be seen against the backdrop of a wider Europhobic agenda. One of the proposals that the Scottish Government has advanced in response to that is the requirement—this is the controversial bit—for a double majority in the event of a vote on leaving the European Union, so that British exit from the EU would need more than just a majority in England; it would require support in all the constituent parts of the UK.
An analogous argument applies in the context of the ECHR. It would clearly be unacceptable for a simple Westminster majority to deprive the people of Scotland of the safeguards that are provided by the Human Rights Act 1998 and the wider ECHR system. Such a change already requires the consent of the Scottish Parliament under the Sewel convention, but that remains a political convention rather than a legal obligation. Therefore, there is a powerful and convincing argument to entrench the Sewel convention in a manner that ensures that no future UK Government can unilaterally repeal the Human Rights Act 1998 or take Scotland out of the ECHR.
In fact, Scottish civil society organisations have presented that proposal in recent submissions to the Smith commission. They have done so entirely independently of governmental or party-political input to the Smith process. I welcome that initiative and believe that the Scottish Parliament will wish to debate and support that proposal in due course. However, that is for future discussion, of course, and likely vigorous consideration.
Let me conclude the debate by turning our focus back to the motion and to the clear existence—given the nature of the debate that we have had—of the broadly based consensus that unites members across the chamber. We have heard a resounding endorsement of the inalienable human rights and fundamental freedoms that are enshrined in the European convention on human rights. There seems to be an emerging difference about how that can be delivered and concern about the reasons behind that emerging difference, but we can see that we are obviously not departing from the overall commitment.
We have heard a clear expression of confidence in and support for the Human Rights Act 1998 as a successful and effective implementation of the convention in domestic law and, above all, we have established without doubt that these rights and the mechanisms that implement them in Scotland enjoy the unequivocal backing of all who are committed to upholding human rights, democracy and the rule of law not only at home in our own country, but on behalf of all fellow members of humanity around the world.
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