Examination of Witnesses (Questions 286-299)
MR KENNY
MACASKILL,
MR BRIAN
PEDDIE AND
MR PAUL
CACKETTE
10 MARCH 2008
Q286 Chairman: We will now start our
formal evidence session on our inquiry into the British Bill of
Rights. We are joined by Kenny MacAskill, who is the Cabinet Secretary
for Justice in the Scottish Government. Mr MacAskill, do you want
to introduce your colleagues?
Mr MacAskill: I have Brian Peddie
and Paul Cackette from our Civil and International Justice Directorate
here to assist me.
Q287 Chairman: Thank you. Do you
want to make any opening remarks?
Mr MacAskill: No. I am happy simply
to take any questions that you may have.
Chairman: Thank you. Baroness Stern wants
to make a declaration of interest.
Baroness Stern: Before the session starts
could I declare that I am the Convenor of the Scottish Consortium
on Crime and Criminal Justice and I am a Member of the Scottish
Government's Advisory Body on Offender Management.
Q288 Chairman: Perhaps I could start,
Mr MacAskill, by asking you about the fact that it seems that
in the Green Paper from the Government, Governance of Britain,
there is no mention of devolution. It seems to be pretty well
missing. To what extent has the Scottish Government been involved
with the UK Government in discussions on a British Bill of Rights
and Responsibilities?
Mr MacAskill: Not really a great
deal at all and I think the fact that devolution is not mentioned
is perhaps an indicator of that. Our general perception is that
it has started from a premise that is not one upon which our legal
system is constructed and has reached a juncture that we have
since moved on from, and that in that first of all a great deal
of assumptions were made. Indeed, I read Henry Porter's evidence
to your committee in The Observer yesterday and, as with
many matters that I have read, it concentrates on the Magna Carta
and the Act of 1689. None of these matters is of any great relevance
to Scotland. We have a distinctive legal system that predates
the Act of Union. Secondly, it does not seem to take into account
the current situation that we have with devolution, and on that
basis, whilst we are happy to assist, the position seems to be
that it has come from a juncture that is not particularly relevant
to our legal system and has reached a point from which we have
since departed and indeed are now accelerating from at some particular
pace as there seems to be general acceptance across the political
world now that devolution has to move on. It is simply the final
destination that is in dispute.
Q289 Chairman: So do you think a
Bill of Rights is needed? Do you welcome the debate about it?
Mr MacAskill: In terms of a Bill
of Rights, any debate that helps promote human rights and keep
them in the public eye is welcome. That is clearly helpful in
a democracy. In terms of a British Bill of Rights, do we see it
as necessary? No. I adopt many of the legal points that were made
by the Law Society of Scotland who will give evidence hereafter,
and to some extent I think some of their matter is predicated
upon a scepticism in relation to why here in the Scottish Parliament
we have the Human Rights Act and ECHR incorporated into our founding
principles and these are dealt with by our courts and we are subject
to challenge not simply on what we seek to legislate upon but
also what we have legislated upon. We are happy with that and
as a Government party we seek to expand upon that if and when
the constitutional settlement changes. The other aspect as well
as the legal basis is simply the concept of Britishness. It seems
to us that we are constituent part of the United Kingdom of Great
Britain and Northern Ireland. Within that jurisdiction there are
different political entities and that is why, as I say, I think
the current premise is predicated on pre-1999 matters. Our political
sovereignty is referred to in that and is a matter that will be
discussed. Equally, the 1707 Union of the Crowns protected Scotland's
distinctive education, church and legal systems. Our legal system,
whilst there has been a great deal of fusion and interaction with
the system south of the border because of legislation at a UK
level, is still predicated in a different manner and it is still
run in a different way, so for those two matters, whilst any discussion
is to be welcomed because anything that promotes the concept of
human rights should be supported, it does appear to us almost
to predicate the question, "Why? Where would it fit in with
us?", and, given that we do not see this concept of a British
identity as such, it lacks relevance.
Q290 Baroness Stern: I think you
have started to answer this but I am going to see if I can perhaps
draw you out a bit more. In your view to what extent is a debate
on a British—and I am emphasising "British"—Bill
of Rights relevant to the people of Scotland, and, in view of
what you have just said, perhaps you could explain why you feel
it is not relevant or in what form it is not relevant to the people
of Scotland.
Mr MacAskill: I think first of
all the whole concept of Britishness has to be discussed. It is
de rigueur; certainly it would seem to be from 10 Downing
Street, but I myself and I think we as a Government party perceive
ourselves as citizens or subjects of the United Kingdom but our
nationality is Scottish. What is meant by Britishness? Is there
a concept of Britishness? Yes, just as there is a concept of being
Scandinavian. We eat fish and chips, we eat chicken masala, we
watch East Enders. Are we British? No, we are not. We consider
ourselves Scottish and we consider those south of the border to
be English. That is perfectly legitimate. Robbie Burns is Scottish,
not British. William Shakespeare is English, not British, and
we should respect the different jurisdictions and the different
identities that live in this very devolved world, and therefore
we see the concept of Britishness as rather arbitrary, that it
was founded for an empire and to some extent has begun to fragment.
It was indeed forged in two world wars but it began to fragment
and fray at the edges, it could be argued, as soon as conscription
and national service ceased. As people now grow up they see themselves,
correctly, as English south of the border, Scots north of the
border, Northern Irish or whatever, so the concept of Britishness
is something that we really do not buy into. Indeed, we wish to
preserve our own integrity, certainly in legal matters, which,
as I say, were specifically protected in the Act of Union, so
the Britishness we do not see any relevance to. From a Scottish
perspective, ultimately in an independent Scotland a Bill of Rights
seems to us to be sensible but, given that our founding principles
in the Scotland Act incorporate ECHR, we have some scepticism
about what could be added by a British Bill of Rights to what
we already have, incorporated through ECHR, apart from our pronouncement
of the principles that exist there. Indeed, as per the Law Society
of Scotland's submission in writing which I have seen, there are
difficulties that may be compounded by having these matters layered
onto what already is within our system.
Q291 Earl of Onslow: May I interrupt
here? It is a matter of historical record that the concept of
Britishness was invented by a Scots King, not by the English.
Secondly, you say that there is possibly no relevance to Scotland
in a British Bill of Rights, but there is legislation passed by
the Westminster Government which in my view has a major impact
on the rights and liberties not only of the English but also of
the Scots in the forms of the databases which are built up in,
for example, the Regulation of Investigatory Powers Act, the concept
of national identity cards, public order acts, the Race Relations
Act and terror laws. All of those are acts which apply just as
much to Scotland as they do to England or Northern Ireland. Under
those circumstances you do not think that there is an overarching
United Kingdom, if you do not like the Scottish word "British"?
You see that it is irrelevant to Scotland, do you, that the Westminster
Parliament can pass these Acts and you do not see any need for
a Bill of Rights which would protect your liberties as much as
I hope it would protect mine?
Mr MacAskill: Perhaps you can
tell me how this Bill of Rights is going to protect them. If,
as seems to be suggested, it is not going to be legally enforceable
in any way, then what is the relevance of it?
Q292 Earl of Onslow: It would be
legally enforceable in exactly the same way as the Human Rights
Act is. In Scotland it could be enforced because the devolution
Act comes from Westminster; Westminster enacted certain powers,
so therefore, presumably, the actions of the Scottish Government
become subject to the ECHR, which is justiciable. It is justiciable
in England in the very elegant way which Derry Irvine introduced.
He said that this Act was wrong, and then there was a fast-track
way of appealing. It cannot overturn an Act of a sovereign Westminster
Parliament but it can point out the error of its ways. There is
a very elegant way of doing it. That is surely how it should work.
There is a precedent for it.
Mr MacAskill: But that goes back
to the fundamental difference in perception about how matters
should exist. North of the border we have always believed in the
sovereignty of the people and that was encapsulated by Lord Cooper
many years ago in a legal judgment. It clearly says that south
of the border there is the acceptance that Parliament is sovereign
and therefore there is a fundamental schism between us. The points
you made regarding national identity cards and other things of
course are relevant here and we as a Government are having to
seek to take steps to make sure that we mitigate what we believe
is something that has potentially great dangers for our people
as well as huge cost implications, so there are obviously matters
where there is a clear interaction. As I say, however, to some
extent it goes back to the position that we come from a different
direction. We are almost operating in a parallel universe. The
matters that seem to be pursued south of the border as being sacrosanct,
such as the Magna Carta in 1689, are not relevant here, so are
there instances—
Q293 Earl of Onslow: Does habeas
corpus not apply here?
Mr MacAskill: We have different
ways of dealing with that. We no longer have the 110-day rule.
We have extended it but the principle of being brought to court
at the earliest possible juncture applies.
Q294 Earl of Onslow: That was not
the question I asked. Does the act of habeas corpus apply
in Scotland?
Mr MacAskill: In my understanding,
no.
Q295 Earl of Onslow: It does not?
Mr MacAskill: No. It has nothing
to do with us.
Q296 Lord Dubs: May I go back to
something you said earlier? You said that you did not have a need
for a Bill of Rights because you felt ECHR and other things were
sufficient, but that would apply in England as well, would it
not?
Mr MacAskill: As I say, you come
from a different legal jurisdiction. It is vastly different. I
can see an argument south of the border because Magna Carta is
vastly different from how we have always proceeded in our criminal
jurisdiction. That is not to say that we are arguing that our
system is perfect. There are matters that we clearly seek to amend
and protect but, as I say, our systems have started at different
positions and therefore I can see an argument for those south
of the border, but north of the border we are bound by ECHR. That
is within our founding principles. Sometimes it has worked to
our benefit. Sometimes as a Government, as we have seen in a variety
of matters, including slopping out payments to prisoners, it has
worked contrary to what we had anticipated and indeed has caused
some angst. Therefore, we have always felt that our position is
regulated. We cannot legislate for matters that are contrary to
ECHR. If we as a Government breach it then our people have access
to the courts and that seems to us to be fundamentally a good
thing.
Q297 Lord Dubs: Can I just add though
that it seems to me that it is the same position in England as
well as regards ECHR. On the other matters, the different legal
systems and so on, of course I accept that, but as regards ECHR
we are bound in England in the same way that you have said you
are bound by it.
Mr MacAskill: That is a good thing.
Q298 Lord Dubs: So the argument that
you are using could also apply in England, although you are not
seeking to do that?
Mr MacAskill: I think what is
fundamentally different is the perception of parliamentary sovereignty
versus sovereignty of the people. That is one of the fundamental
differences north and south of the border.
Chairman: The difference also is that
the courts here can strike down Scottish Parliament legislation,
whereas they cannot in England.
Q299 Baroness Stern: My next question
is going to draw out a bit more something we have already started
talking about. You may have seen that Professor Alan Miller has
suggested that there is a "distinctive Scottish perspective
on rights and sovereignty". If I could just tell you what
he says, "The essence of this perspective ... is that an
individual's rights are essentially seen as a `right to personality'.
It views the individual's personality, rights and duties being
dependent not upon the grant of the state but upon the enjoyment
of such rights by the community as a whole within which the individual
interacts". I wonder if you would like to comment on that
and perhaps explain to us how that Scottish approach, if you accept
it, impacts on the Bill of Rights debate.
Mr MacAskill: I think that shows
the fundamental difference. That is the position I would accept,
the position encapsulated by Lord Cooper decades ago, and I think
the fundamental difference relates to the problems caused by the
argument south of the border that exists about the sovereignty
of Parliament. At the end of the day that is a fundamental schism,
which is why the Bill of Rights would not necessarily, it could
be argued, provide the same protection south of the border as
it would here in terms of the perception as to who is ultimately
sovereign: is it the people or is it Parliament?
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