Joint Committee On Human Rights Appendices to the Minutes of Evidence


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  2.  A specifically Scottish Human Rights Commission?

  2.1  Assuming a need, should there be a specifically Scottish body? The argument against a specifically Scottish body starts from the fact that the Human Rights Act 1998 has UK-wide application. Almost by definition, it might be thought, the incorporated Convention rights, being fundamental human rights, should have the same content north and south of the border. The way the 1998 Act works is to limit the freedom of action of "public authorities" vis-a-vis individual citizens. Public authorities are on the whole creations of statute. Their functions tend to derive from statutory provisions which apply UK-wide, or, if from separate provisions for the component jurisdictions of the UK, from separate provisions which are closely analogous. The 1998 Act s 3 lays down the test which judges must apply for Convention-rights-compatibility of statutory functions. It is not readily conceivable that the same statute or analogous provisions in different statutes should be given different meaning and effect on each side of the border. Harmonisation of judicial interpretation and thus of Convention rights provision throughout the UK has been secured by constituting the Judicial Committee of the Privy Council the ultimate court of referral and appeal for rights-compatibility questions involving the devolved institutions in Scotland, Wales and Northern Ireland. Against this background it might be thought that the specialist anti-discrimination bodies, which also do have UK-wide jurisdiction, provide the appropriate model for any general human rights commission. The experience of devolved government suggests that the cost implications of a single commission for the whole UK would be more easily accepted.

  2.2  On the other hand, the Northern Ireland example affirms that a local rights commission is not inconsistent with UK constitutional principles and is properly an adjunct to devolved government within a particular jurisdiction. The distinctive identity of law and practice in Scotland already finds expression in the existence of purely Scottish commissions for law reform and review of criminal convictions. It is arguable that implementation of fundamental rights in Scotland is bound up with Scots law and practice in a way which implementation of anti-discrimination codes is not. In addition the Scotland Act 1998 presents the devolved institutions with special challenges:

    —  convention rights compatibility is a pre-condition of Scottish legislative competence; and there is a special test for the competence of Scottish legislation;[61].

    —  incompatibility with other, non-incorporated, international rights obligations can prevent Scottish Bills from passing into law;[62].

    —  the devolved institutions can arguably be required—subject to the Scotland Act s 40—to fill gaps in rights provision by amending existing legislation or introducing new rights-compatible legislation.[63].

  Even without postulating different rights for different parts of the UK, there is scope for variation in detail of implementation, to suit local needs and conditions, by reference to the so-called "margin of appreciation". The argument for a local commission providing expert independent advice may be supported by reasons of expediency. Has Scotland been well served by existing specialist commissions and voluntary agencies which have at best branch-office presence north of the border?

  2.3  While considerations of legal policy can argue for and against a specifically Scottish body, it must also be correct that a UK Commission and a Scottish Commission are not mutually exclusive concepts.

  3.  Relationships with existing bodies.

  3.1  Incorporation means that there is now significant overlap between UK specialist anti-discrimination codes and Convention rights, most obviously by virtue of the anti-discrimination provision of Convention Art 14. Other Convention provisions are increasingly likely to be brought into play in questions of sex, race and disability discrimination for the reason that discrimination often involves violation of other protected rights and freedoms. Indeed the right to non-discrimination in terms of Art 14 can be expressed as "being secured in the enjoyment of the rights and freedoms set forth in the Convention . . . without discrimination on any ground etc". Both the so-called "horizontal effect" and contractual interaction are predicted to carry Convention rights into the private sector where specialist commissions already have jurisdiction. There is a recent Scottish example in the announcement by Crown Office that Convention rights compliance obligations will be included in forensic pathology contracts with private sector suppliers (21 February 2001).

  3.2  Further, there is a tendency for piecemeal anti-discrimination provision of a negative kind to be overtaken by positive, rights-based, general provision for equal opportunities. This is evidenced by the free-standing equal opportunities provisions of the International Covenant on Civil and Political Rights, Art 26, and of draft Protocol 12 of the European Convention itself—see Opinion of the European Court of Human Rights adopted 6 December 1999, Doc 8608. At home, the Scotland Act 1998 s 30, Sched 4, s L2, while reserving the content of existing specialist codes to Westminster, empowers devolved institutions to encourage equal opportunities generally—ie without being restricted to sex, race and disability issues—and in this connection to impose duties on Scottish and cross-border public authorities. The remit is reflected in the wide brief of the Scottish Parliament Equal Opportunities Committee. Should there be a new body, the foregoing factors may argue for such a body to have a broad mandate in relation to rights generally.

  3.3  While it is not suggested that the functions of existing specialist UK commissions should be subsumed in any new body—something which could not be effected without UK legislation—there is significant scope for co-operation. Co-operation already takes place between specialist commissions in appropriate cases. It is conceived that any new body might appropriately have a mandate to co-operate with other, UK commissions, and possibly to act on an agency basis. The remits of all bodies might require to be reviewed over time.

  3.4  The argument for a rights commission with overarching competence permitting co-operation with existing bodies is supported by the emergence of a coherent jurisprudence across all areas of rights law: once the claimant establishes unequal treatment by comparison, or prima facie derogation from a positive right, the burden falls on the defending authority to show objective justification according to relevant criteria.

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17 July 2001

61   Scotland Act 1998 s 101; Human Rights Act 1998 s 3. Back

62   Scotland Act 1998 ss 35, 58. Examples are the provisions of the European Convention on Human Rights not incorporated by the 1998 Act, the UN Convention on the Rights of the Child, the International Covenant on Civil and Political Rights. Back

63   In accordance with the principle of sovereignty of Parliament, the Human Rights Act s 6 protects Westminster from this sort of action. The same protection is not extended to the devolved institutions. The model is established elsewhere eg Vriend v Alberta [1998], Supreme Court of Canada, 1 SCR 493. In principle this is correct for legislatures subject to "higher law". Back

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