Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 300-319)


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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