Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 286-299)


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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