Examination of Witnesses (Questions 300-319)
MR KENNY
MACASKILL,
MR BRIAN
PEDDIE AND
MR PAUL
CACKETTE
10 MARCH 2008
Q300 Baroness Stern: What are the
implications of the people being sovereign rather than Parliament?
Mr MacAskill: I think that simply
gives recourse to individuals to have far more rights. You cannot
have democracy resulting in almost a democratic dictatorship.
There can be times when Parliament does get it wrong. There can
be times when Parliament is out of kilter with the will of the
people and it seems to me that this provides some checks and balances.
It is the same in any democracy. We have the separation of powers.
At the end of the day there have to be some instances where Parliament
can be seeking to go against the fundamental will, value and ethos
of what is perceived as that of the people and they should be
protected from it.
Q301 Chairman: But how is the will
of the people established if it is not through the representative
democracy of the Parliament?
Mr MacAskill: These are matters
that ultimately have to be tested in court, and you have no guarantee
that ultimately you can protect it against these things, but ultimately
the right of the people to be able to say that they think Parliament
has got it wrong and that the fundamental ethos and will of the
country is perhaps different in values or whatever else is where
it comes from as opposed to being able or willing to legislate
willy-nilly.
Q302 Chairman: But the will of the
people in those circumstances is ultimately expressed by a judge.
It is his interpretation what the will of the people may be, which
presumably is quite a subjective assessment.
Mr MacAskill: That is true, but
that applies in the Bill of Rights if you make it legally enforceable.
It is always going to be subject to the will of a judge deciding.
In whatever jurisdiction in which we have a Bill of Rights ultimately
these matters do go to the courts, but, given that they are perceived
as independent, that they are part of the separation of powers,
legislator, executive and judiciary, it does seem to provide some
final arbiter as opposed to the arbiter being those who can simply
rack up the numbers and vote something through.
Q303 Earl of Onslow: Surely the doctrine
of the supremacy of Parliament still holds good in Scotland because
the Act of devolution is an act of a sovereign Parliament. In
1707 the Scottish Parliament decided to subsume itself into the
Parliament of the United Kingdom, thus establishing the supremacy
of Parliament, I would suggest, over the whole of Great Britain.
The United Kingdom and Ireland were still different. Once that
happened Parliament was sovereign, and until or if Scotland becomes
independent—and it is up to you what you do—it is
Parliament that is still sovereign because the Act of devolution
is an act of a sovereign Parliament which theoretically could
be repealed.
Mr MacAskill: No. I think our
perception and take on history is that we adjourned our Parliament
for a variety of reasons. We extracted concessions such as the
integrity of our church, law and education systems, which have
served us well, and indeed that was why, when this institution
reconvened in 1999, my colleague Winnie Ewing then said that the
Parliament adjourned in 1707 had reconvened. We ceded various
matters for a variety of reasons and debate has waxed and waned,
certainly over recent years with 2007 being the 300th anniversary,
but this idea that we gave up everything to be subsumed within
Westminster is something that we would disagree with.
Q304 Earl of Onslow: Yes, but Westminster
could still theoretically repeal the Act of devolution.
Mr MacAskill: Absolutely. Power
devolved is power retained but at the end of the day—
Earl of Onslow: You have made my point
for me, absolutely made my point. We have now established that
the Parliament in Westminster still is supreme in Scotland, and
you have accepted that by saying—
Baroness Stern: No.
Lord Dubs: No.
Q305 Earl of Onslow: Yes, by saying
that the Act of devolution could theoretically be repealed.
Mr MacAskill: I accept the premise
that the Act of devolution could be repealed because that is a
creature of statute. There are further fundamental matters though
that were preserved by the Treaty of Union which we see as capable
of litigation and challenge. It turns upon the rights of Scotland
to protect and preserve its integrity and its legal, judicial
and religious freedoms.
Q306 Lord Bowness: Chairman, I may
be the only person round this table who is not familiar with Lord
Cooper's judgment distinguishing between sovereignty of the people
and sovereignty of the Parliament. I think it would be very useful,
bearing in mind that we are talking about the Bill of Rights,
not devolution, if the Justice Secretary or his staff could let
us have that reference or a note about it because I think it is
very relevant to the discussion.
Mr MacAskill: I am sure we can.
I have to say it is—I am trying to remember how long ago—38
years or something since I did my law degree and whether what
little I knew I have long since forgotten, but we can happily
provide it to you and I am sure the subsequent witness from the
Law Society will be able to give you much more information on
it than I, but it is something that runs deep in Scotland and
something that not simply ourselves as a nationalist party but
also others have sought to adhere to.
Chairman: He has had notice of the questions
but he has got a very fat law book with him so hopefully when
he comes to give evidence he will be able to tell us.
Q307 Baroness Stern: I think Lord
Onslow mentioned ID cards, and I know there are one or two other
matters on which the Scottish Government is subject to matters
decided in Westminster, such as the actions of the British Transport
Police or the Glasgow Station stopping certain people, so there
are matters on which you have views which you might feel have
a human rights implication, but there is not a lot you can do
about them. I just wondered if you felt from that perspective
that a discussion of a British Bill of Rights was helpful or relevant.
Mr MacAskill: This goes back to
raising the question of rights and responsibilities and whilst
I am persuaded by the argument that putting responsibilities in
is actually probably a step too far, it is a consequent corollary
to the question of rights. I think all of these things add to
the general debate. We live in a fast-changing society in troubled
times, and the points you make, whether about section 44, stop
and search, or the cost and implications of ID cards, they are
all matters that cause us concern here and over which we have
limited room for manoeuvre but we do feel required to speak out
as a Government on behalf of the people we represent.
Q308 Earl of Onslow: What would you
like to see in a British Bill of Rights, if there were one? Should
the object of a British Bill of Rights be to build on the ECHR
or "ECHR plus", or to give the UK greater leeway than
it currently enjoys under the ECHR, ie, "ECHR minus"?
Mr MacAskill: Our view is first
of all predicated on the fact that we do not see the necessity
or relevance for it. That said, if there is to be one then it
does seem to us that the ECHR encapsulates fundamental values.
Whatever criticism we have had, and we have had criticism as a
Government on matters that have happened, such as slopping out,
these are judgments; they do not relate to the fundamental values
that are contained within it, so we would certainly not wish to
see anything of "ECHR minus". That would seem to us
to be a retrograde step going against fundamental matters that,
frankly, are universal, and although the American Declaration
of Independence in its Bill of Rights was a model of its time,
as indeed was James, depending which category you give him in
terms of your concept of Britishness, it does seem to us that
ECHR is something that should be retained. Is it foolproof? No.
There are probably good reasons why some things could perhaps
be added to it, so it does seem to us that if you are going to
have something then it should be ECHR plus anything that may be
viewed as perhaps appropriate. What that may be I am open to persuasion
about and I think you view it as the minimum, not the maximum,
but you certainly do not seek to move away from what are, as far
as we can see, fundamental universal values that should be protected
either side of the border, and indeed in any other jurisdiction
anywhere in the world.
Q309 Earl of Onslow: If you are me
you get frightened by what the Government has done. You think
that the object of a Bill of Rights should be "ECHR plus
quite a lot". I became converted to the ECHR because I thought
that the House of Commons was not doing what it should do in protecting
British citizens, subjects of the Crown, call them whatever you
will, from the actions of an over-mighty executive. That for me
is the argument for "ECHR plus". You would not agree
with that?
Mr MacAskill: No, I have a great
deal of sympathy with that. I have forgotten the name of the journalist/author
that wrote about the centralisation of powers, how things operate
south of the border where you do not have proportional representation
and where you can have the situation of a government with a very
limited mandate, and we north of the border are conscious that
the Tory Party got the largest number of votes in the last general
election south of the border. These things are matters that we
remember, though not necessarily with the same pain as some might
south of the border but we note these things. These matters are
there to be built upon and certainly I do accept that an executive
in a situation like that can do things that are fundamentally
wrong. After all, we as a Government are conscious that we have
been taken into a war that was not sanctioned by the United Nations
and that we ourselves did not have a real opportunity to comment
on and in which many of our young men continue to tragically die
in a situation where we want to get them out as quickly as possible.
Q310 Earl of Onslow: If there were
to be a Bill of Rights, and I can see you do not feel there is
the necessity to have one, do you think socio-economic rights
should be included?
Mr MacAskill: I am open to persuasion.
I think it is very difficult to quantify socio-economic rights.
How do we define them? There is the right to work and so on, but
once you start getting much more into socio-economic rights then
poverty is a relative concept. What is viewed as fundamental to
quality of life in 2008 is not necessarily what will be perceived
as fundamental to quality of life or a necessity in 2018, so I
think some reflection of socio-economic rights has merit. As to
whether it can be encapsulated beyond what are the fundamental
matters contained within ECHR or some other matters, I remain
to be convinced, but the concept that socio-economic rights are
pivotal to an individual is something that we would subscribe
to. If you are poor in this country and you are on unemployment
benefit or social security benefits and you are in a council house
where your rent is paid directly by the state then your ability
to act is limited. You cannot withdraw your labour, you cannot
withhold your rent, so if you object to the economic situation
you are in difficulties. If you object to the quality of house
you live in and the dampness you cannot do what the rest of us
would do and seek redress. These things, as I say, have to be
reflected, that socio-economic matters do impact upon your individual
rights as a citizen. How you reflect that in a Bill of Rights
I am not sure because it becomes very difficult when, as I say,
these matters do ebb and flow. It might be best simply to leave
them as matters that should be taken into account by courts in
pursuing these matters and be borne in mind by governments. As
I say, I am open to persuasion but I find it difficult to see
how you can encapsulate some of these things in what would be
an additional matter to ECHR.
Q311 Earl of Onslow: That could be
a Tory hereditary peer speaking on that, not a Scottish Nationalist
Minister, so on some things we do obviously see eye to eye.
Mr MacAskill: Absolutely!
Q312 Earl of Onslow: How do you answer
the question, when we were discussing this among ourselves last
night, from our legal adviser, who said to me, "How do you
allow that there should be an asylum seeker who has his benefit
taken away from him and is forbidden to work? Are his socio-economic
rights not being abused under that process?".
Mr MacAskill: I would have thought
that the argument for that is to recognise that, whilst they might
not have the same rights as a citizen or subject in the passport
they carry, everybody has some fundamental human rights on dignity
and treatment and, frankly, we are not happy in this Government
to comment further on points made by Baroness Stern about how
asylum seekers are being treated in this country and it is a matter
that we will be raising, whether with the BIA or with others,
so I see where you are coming from on that. I do tend to think
these things should be capable of being dealt with by what should
be fundamental matters within the Bill of Rights, whether it is
ECHR without being specified, because that is not simply about
financial rights; that is about treating people with dignity and
compassion, because in this country we recall that not only are
we a nation of immigrants; we are also a nation of emigrants,
and wherever we went in the world we were almost uniformly treated
with dignity, compassion and respect, whether we were cleared
off our lands or went because we were economic migrants, and therefore,
whilst there has to be an immigration policy in any society and
at times it does have to be enforced, we do think that fundamentally
you have to do so with compassion and with some cognisance of
how we were treated and how we are still treated.
Q313 Chairman: I do not think any
of us would disagree with that, and our report on this last year
came to that conclusion, but, for example, could we have a right
written into the Bill of Rights which would say that nobody should
be subjected to destitution, nothing to eat, nowhere to live,
as a bottom line, so that if a Government, north or south of the
border or anywhere else, were to pass a law through the Parliament
saying, "Asylum seekers shall have no money and no food",
that could either be struck down or be subject to a certificate
of incompatibility, depending which system we work through, because
that would infringe that basic fundamental right?
Mr MacAskill: I have to say I
have a great deal of sympathy with that.
Q314 Earl of Onslow: What about environmental
and third generation rights?
Mr MacAskill: Again, I think it
comes back to the comments made on social and economic matters.
I am open to persuasion. As the Chairman has said about destitution,
that seems to me to have a great deal of logic to it. Environmental
rights—again, these are matters where we need to see how
they are going to be specified. We have a current situation where,
for example, south of the border there is a desire by some to
build more nuclear power stations and we north of the border have
a clear desire that we want no more new nuclear power stations,
and what might be seen as enforcing environmental rights in one
jurisdiction is seen as damaging fundamental environmental rights
in another. As I say, these things in the abstract, in the round,
sometimes sound quite engaging and endearing but there are significant
difficulties here, so it is back to the previous matter, that
we remain to be persuaded, that it cannot simply be dealt with
within the fundamental matters that are contained within the ECHR
but we are open to persuasion.
Q315 Earl of Onslow: Especially as
there is a very strong pro-environmental argument for building
nuclear power stations, and so if they were included a judge could
say, "Actually, nuclear power stations are very much better
for the environment than are coal or oil-fired power stations",
if you accept the premise that CO2 is the great danger to climate
warming.
Mr MacAskill: Although, having
read Henry Porter's piece, I also read another piece in The
Observer about the demise of humanity and the human race and
how, 400,000 years down the line or whenever it was, we were about
to be obliterated by the sun. The consequences and problems created
by nuclear waste still remained long after we had disappeared
off this planet.
Q316 Earl of Onslow: I am not saying
which is right. I am just saying there is an arguable case where,
in a Bill of Rights with environmental possibilities, somebody
could go to the Scottish Government and say, "O, Scottish
Government, stop polluting the countryside with great CO2 burning
gas stations", or ruining the sea lochs with tidal races,
or whatever they are called, "and build nuclear power stations
because they are environmentally much more friendly". It
would then be down to a judge to decide which was which, whereas
in my view that is absolutely down to a democratically elected
government. Whether you are right or wrong on nuclear power stations
from the point of my argument is totally irrelevant.
Mr MacAskill: I think we tend
to agree with you on that. As I say, these are matters which fundamentally
come down to political judgments, whether it is nuclear power
or whether it is on-shore wind with the difficulties we get in
some communities over the size of developments, and we are a Government
that is supportive of wind developments but they have to take
cognisance of the environment and the beauty of the area in which
we live, so yes, I think these matters are fundamentally matters
that should be decided by the Government because they are not
necessarily the inalienable rights that were initially encapsulated
in the American declaration.
Q317 Chairman: Can I try another
environmental one on you which might be a more interesting one
to try? Supposing somebody wanted to set up a commercial fish
farm, non-organic, somewhere up in the Highlands, or wherever
they do these things, and the local planning committee decided,—and
I am not sure how planning works but whatever the local planning
authority says—"Okay, this is important for our local
economy. It is going to create a lot of jobs. We think this is
a good idea despite the environmental impact on the local sea",
or loch or whatever. There is no right of appeal against the grant
of planning consent but it would have a significant environmental
impact. If you had, for example, environmental rights would it
provide a way of having that decision reviewed in the context
of its impact on the environment at the instance of the local
community disagreeing, for example?
Mr MacAskill: I think you are
right. That is why, as I say, we are sceptics about the Bill.
We do not necessarily rule it out but you would have to persuade
us. As I say, we currently have these matters in Scotland going
on in similar debates relating to planning legislation, which
is, I think, accepted by many as not necessarily going quickly
enough, especially for matters of national infrastructure where
a clear decision has to be made for the national good, whether
it is a road or some other matter, so you can go from a very small-scale
development to a much larger development, and there are difficulties
there. That is why, as I say, there are fundamental problems because
somebody's fish farm in some areas that is seen as commercially
beneficial could equally be seen downstream as having consequential
problems with diseases or whatever else may go with them. These
matters do take place on a regular basis, a fish farm basis (usually
it is problems with the Crown Estates), up to the larger examples
mentioned by the Earl of Onslow in terms of nuclear power and
wind energy. That is why I think in these matters public perception
changes, attitudes change, science and technology change. Some
things, about not being tortured, about having fundamental rights,
always remain, it seems to me, fundamental and universal.
Q318 Earl of Onslow: If there were
to be this Bill of Rights what should the relationship between
private individuals or bodies be to that Bill of Rights?
Mr MacAskill: It seems to us that
the Bill of Rights should be there for every individual. This
is back to the recourse that individuals should have to exercise
their rights subject to available constraints.
Earl of Onslow: I think what we are getting
at is that we had a situation in England about how the ECHR applied
to old people paid for by the local authority in privately run
nursing homes, and the House of Lords, in its Appellate Committee
existence, decided that it did not apply. I think that is a slightly
illogical argument and so does Brenda Hale, but that is neither
near nor there, but in other words it could force the Scottish
Parliament, when it runs its old people's homes, to see that the
ECHR applies—
Q319 Chairman: We are talking about
the YL case and I think you are legislating north of the
border to deal with it and we are looking at ways of dealing with
it as well. The issue really is that the problem arises because
the Human Rights Act is not directly enforceable against private
bodies.
Mr MacAskill: I can understand
the logic of the argument, that though public sector provisions
are passed out to private sector or arm's length agencies clearly
there is a difficulty in enforcing some rights. I am not necessarily
convinced that the Bill of Rights is the best way to deliver that.
It seems to me that these are matters that should be delivered
by the state, whether or not it is the state that does it or contracts
its rights or whatever. It seems to me that it is better to seek
to be able to enforce your rights against the state as a citizen
as opposed to having tangential litigation, so, whilst I do not
necessarily rule it out, it does seem to me that it becomes much
more complex and also undermines the whole ethos that this is
your right as a citizen of the state that you are seeking to enforce
a contractual obligation that should be enforced by the Government,
and therefore I think I am much more comfortable with the concept
that the Government should be more open in terms of their relationship
to the contracts, that the agents should enforce them better,
but it does seem to me that these matters are maybe better dealt
with by the individual against the state with the state delivering
its obligations, whether it has done so itself or has sought to
do so through a third party.
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