Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 320-338)


10 MARCH 2008

  Q320  Chairman: If somebody decides to be a private funder and just pay for their own care in a particular care home, at which there may be people who are paid for by the state as well, but that is their choice, they would, as things stand, have less protection than that provided by the contracted-out service or whatever.

  Mr MacAskill: I think that is where the Government has to seek to ensure proper and adequate regulation, and that might be the better way to do it rather than having a further bean feast for litigation in our courts. It is better to regulate and enforce than having people always seeking to have recourse.

  Q321  Earl of Onslow: This is you now arguing, with respect, for "ECHR minus" slightly, is it not?

  Mr MacAskill: No, I do not think so. I think fundamentally it is your right as a citizen; it is your relationship with the state. How the state seeks to deliver and what method it seeks to use is for them to decide, but if you fail to get those rights, if the state has failed to deliver, you should seek to enforce it against the state and the state should seek to regulate it or indeed make sure that whatever is done is done better, but I think it is better by enforcing it against the state than going tangentially. I do not think that is "ECHR minus"; that is simply ECHR and it is having the Government stand up and deliver its responsibilities.

  Q322  Earl of Onslow: But you are asking the Government to do it, quite rightly so. We then get the YL case, which says that government paid-for people in private nursing homes are not subject. That is rectified by making them subject. You then have people who are not in receipt of means-tested benefits and who have to pay for their own care in the same care home not being able to take advantage of rights that people who are paid for by the Government in relation to breaches of human rights by that care home should they arise. As I understand it, and I may be wrong here, you are saying that this should be done by general standards and you should be able to enforce them without access to the ECHR. Those would, of course, be allowable to anybody. I agree with you, by the way. I tend to think that it is better that you should do it that way round, but again I find that it is a very useful tool to lever up standards with as well. I can see both sides of this question. It seemed to me—and I know I got shouted down by all my colleagues and by you for saying it—that you were slightly arguing for "ECHR minus".

  Mr MacAskill: No, not at all. I just fundamentally think that the whole concept of a Bill of Rights is your right as a citizen against the state, and where the state seeks to deal with matters that should be a fundamental right by contracting out then I do think that you should still seek to enforce your rights against the state and it is for the state to deliver. We come from the fundamental ethos that there is such a thing as society. The direction of travel that seems to be delivering in a Keith Joseph-like situation, where the Government meets up once a year to contract out services and you are then left as an individual to enforce it, is something that we do not subscribe to, and therefore I think it is up to the state to ensure that its citizens' rights are protected. If they are not then it should be for the citizen to seek to take issue with the state; otherwise, as I say, not only do we have to have recourse to litigation between, arguably, third parties; it also allows the Government in some instances to evade its responsibilities by passing matters and the buck on to others. It also undermines people's rights because it is those who are in the know who have access to funds, courts, legal advice or whatever, as opposed to, as I say, the Bill of Rights being a fundamental check against Government. I would hope that Government would seek to deliver these rights. It is only when they do not that you pursue them and that is where the Bill of Rights is the safety valve. This idea that you have rights and it is really up to you to enforce them and it is up to you to chase third parties who have not done this or do not do that does not seem to me to be correct. That is the job of the state because we are a society.

  Q323  Chairman: But we do live in an age of globalisation, big multinational companies. You could envisage a situation perhaps where a big multinational company wanted to build a big plant or something and the Government did not want to take them off. It is potentially polluting or environmentally hazardous or whatever and the Government says, "We are not going to deal with this. We think this is a good thing, fine". It is a big multinational company, probably bigger than some countries in its national turnover. Should the individual be able to bring an action against that company?

  Mr MacAskill: That comes back to the earlier concept that if the Government is acting contrary to the will of the people in all these matters then we believe that they should be challenged. You are right to say that in a world of globalisation there are difficulties. That is though why we accept that there has to be co-operation by governments, large or small, whether it is on a pan-UK basis or whether it is on a pan-European or indeed a much wider global basis. These matters we would hope would be dealt with by the Government. If the Government seeks in some arbitrary way to flout the fundamental right that people should have recourse against them, the way of delivering it is to challenge the Government, I believe, because otherwise the Government flouts and abdicates its responsibility, which is to look after the rights of its citizens, and it seeks to pass the buck to those who can acquire or obtain legal advice and recourse.

  Q324  Chairman: So ultimately it all comes down to regulation by the Government?

  Mr MacAskill: Not everything comes down to regulation by the Government but it does seem to me that it is much better that you enforce your rights against the Government and the Government resolves matters. They have the clout and the machinery and while, understandably in a globalised world and for a more productive economy, many matters are dealt with by the private sector or arm's length agencies, our view is that you should it enforce it against the state and the state should enforce your rights. That is the whole concept of why we go to court. Your go to court and you argue in the court and it is the court that enforces your rights. They may pass it back to you and you then go to the bailiffs or the sheriff's officers but fundamentally the court enforces your rights as an individual and it seems to us that in the concept of a Bill of Rights you go to the state and the state recognises that something has happened and seeks to deliver for you.

  Q325  Earl of Onslow: Do you think, if we were to have this Bill of Rights, it should be rights and responsibilities, that it should in turn impose responsibilities on the citizen?

  Mr MacAskill: I think that argument is well intentioned because I have certainly argued publicly that responsibilities are the corollary to rights. Citizens do have rights but they equally have responsibilities. I do tend to think though that what we are talking about here is a Bill of Rights. Once we get into responsibilities it is very difficult to quantify and encapsulate responsibilities in matters that do not become almost dictatorial. I did read the arguments about how the former Soviet Union did seem to encapsulate this and that seems to me to be one good reason for not so doing. As I say, I can understand on the face of it the logical arguments for it. I do tend to think though that it is far too problematic and it is much better dealt with by reminding citizens that they have responsibilities and that they breach those duties if they flout other laws, but fundamentally what we are talking about is a Bill of Rights that is about rights.

  Q326  Earl of Onslow: I must admit again you sound like a Tory hereditary peer. It seems to me that citizens only have one responsibility and that is to obey the law, and if they do not want to do that they get slotted by the law. That is the only responsibility that a citizen has.

  Mr MacAskill: I tend to think that we are not encapsulating simply what might be put forward by—

  Q327  Earl of Onslow: I mean legally, not socially or economically.

  Mr MacAskill: I think the position you are coming from is the position that this Government takes as its fundamental. We are a social democratic party in the tradition of north European nations, whether they are Scandinavia or the Netherlands. I think you will find there that they have rights and the responsibilities are viewed as being consequent upon the citizens but they are not encapsulated in any formal legal bill of rights. As I say, as a social democratic party we believe that we have to protect people's rights. If that in many instances overlies with Conservatism, that is fine by us, we are relaxed about it, but, as I say, we are a social democratic party and it is from that ethos that we come.

  Q328  Lord Bowness: Can I go back to this question of the ability of the courts in Scotland to strike down acts of the Scottish Parliament, and we have already highlighted the difference in that situation from that which prevails throughout the United Kingdom Parliament? Can you perhaps tell us what have been the practical effects of that power?

  Mr MacAskill: I think it has been good discipline. The Lord Advocate indeed has statutory responsibilities within the Scotland Act to make sure that the Government does not seek to proceed in matters that are either ultra vires in our constitutional powers or otherwise. I think it is a good and salutary reminder to Government not to proceed in ways that would either be illegal or politically embarrassing and therefore matters are dealt with that way. That is not to say that there have not been judgments, for instance, in the slopping out case, that have caused some angst but, as I say, we recognise the legitimacy of the courts and we accept it and are simply seeking to follow on. I think it is a good discipline for government.

  Q329  Chairman: Can you tell us how many times the courts have struck down Scottish Parliament legislation?

  Mr MacAskill: Never. There was one challenge which related to our banning order of fox hunting, I understand, and that was dismissed but, apart from that, I think the discipline has always been dealt with there and it has been enforcing other rights such as, I say, the slopping out matter.

  Earl of Onslow: Has the ban on fox hunting in Scotland had the same effect as it has had on England, which was to increase the number of hunts and the number of foxes killed?

  Q330  Chairman: That is nothing to do with this.

  Mr MacAskill: I have to say, as somebody whose grandparents were crofting, we forget that there was never a hunt north of the Tay, which is a substantial amount of our land mass, and therefore the short answer is, I do not know, but I do think Scotland is a better place.

  Earl of Onslow: I meant it with a slight element of flippancy.

  Q331  Lord Bowness: Just going back to the question of striking down, and I understand your reservations about there being a British Bill of Rights, would you foresee problems in extending the right to strike down across the whole of the United Kingdom in the event of that coming about?

  Mr MacAskill: The problem obviously is the sovereignty of Parliament, so it is the different routes that our legal systems have travelled upon. Is it a good thing that Parliament can be struck down? Yes, I think it is. I think at the end of the day you cannot have a parliament that acts arbitrarily and wrongly, and that should be subject to challenge within the courts.

  Q332  Lord Bowness: We have talked about the possibility of economic and social rights being included in any Bill of Rights, and no doubt we all have opinions about whether that would be a good thing or a bad thing, but if it was there, with particular reference to the devolution settlement, some of those economic and social rights will almost inevitably touch on matters which are currently devolved to the Scottish Parliament, and education is highlighted as an example. Does it worry you that a UK Bill of Rights with economic and social rights might lead to a situation where in fact the United Kingdom Government was given an entree into matters which are devolved?

  Mr MacAskill: To some extent that situation already exists and that is part of why the devolution settlement has not really been resolved and we are having to move forward because there is a whole array of matters. As the Justice Secretary I am in charge of criminal justice in Scotland; I am not in charge of narcotics or firearms and I do not think there is a legal jurisdiction in the world in which serious and organised crime is not predicated upon narcotics and firearms. We have a significant problem on air weapons. We are precluded from being able to act. We wish to protect our young population from the carnage on our roads by reducing the drink/driving limit and we are precluded from doing that, so there is a whole variety of areas where we are currently precluded, but if the concept was to add value to the totality of our citizens then clearly it would be a good thing. As I say, it goes back to the earlier points I made about social and economic rights in that the devil is in the detail. On paper it looks a very worthy thing to do, but being able to encapsulate it in snappy sentences is --- to be fair to the Americans, and I have been critical of America in many ways, the fundamental bill of rights that they came out with in the Declaration of Independence for the time it was written was clearly an extremely good and progressive document. It is not difficult to see that some areas had to be expanded upon because at that time the rights of people of different colour and the rights of women were not perceived as being rights at all, but the fundamental concept is as well written as any. As I say, I am open to persuasion about social and economic rights and if that can be done I think we would welcome it irrespective of whether it then caused problems for us as a jurisdiction. There are fundamental matters that run beyond the short-term advantages of a particular government of a particular political hue.

  Mr Peddie: Can I add a point here in further amplification of the response? Obviously, the Cabinet Secretary has dealt with that issue. There are two points that arise in relation to what Lord Bowness has said but also in relation to something that was said earlier about the justiciable nature of the Bill of Rights were it to develop in that kind of way. I would just like to say two things for the record, one of which, as has been recognised earlier in discussion, is that the interaction between the Human Rights Act and the Scotland Act is different from the interaction as far as the rest of the UK is concerned. There is the vires test that has been referred to earlier, the issue of incompatibility which will not operate in quite the same kind of way, but also the ability of a United Kingdom Government by Order in Council to disapply the Human Rights Act in certain circumstances. If the model were to develop, standing points being made by the Cabinet Secretary, so that a Bill of Rights would be similar to the way ECHR operated, that might lead to a proposition that Acts of the Scottish Parliament would be ultra vires if they failed to comply with the Bill of Rights. That is not necessarily how it will develop but I just want to record the fact that what that would mean is that it would have an impact on the legislative competence of the Parliament in defining what is devolved competence.

  Q333  Chairman: Can I try this out on you, which is on a similar theme? Under the Human Rights Act the Scottish higher courts can declare Westminster legislation applying in Scotland incompatible with ECHR, so if you have a British Bill of Rights which does not extend to Scotland but provides rights that go beyond ECHR, for example, the right not to be destitute, the thing we were explaining with asylum seekers earlier on, are you saying that those wider rights should not be relevant in Scottish courts even in relation to Westminster legislation, so, for example, it would be possible for English courts to declare incompatible Westminster legislation which makes asylum seekers destitute but not Scottish courts even though the legislation applies in Scotland?

  Mr Cackette: That depends on whether the Bill of Rights is extended to reserved as opposed to devolved areas.

  Q334  Chairman: That is the point I am making. Mr MacAskill was saying earlier he did not see the relevance of a Bill of Rights to Scotland. That is probably too simplistic a view of what he was expressing, but in that context?

  Mr Cackette: That would be a consequence of that, I think.

  Q335  John Austin: It is not necessarily the view that the British Bill of Rights has been irrelevant, but clearly the implication is that there are potential implications for Scotland, and in that context you are now engaged in a national conversation on the future constitution of Scotland. Does the British Bill of Rights feature in that in any way, and, if so, how?

  Mr MacAskill: Tangentially, it may. Clearly our national conversation is more about engaging with people about what the constitutional settlement should be and we have noted that since we launched our national conversation it was to some extent criticised by other political parties, but they have since accepted that the status quo is not tenable and have persuaded themselves to go on their own commission. They are doing it by way of a commission. We are doing it by way of a national conversation. Will a Bill of Rights factor into that? To some extent it will but clearly what we are talking about is an evolving situation and it does seem to us that to some extent the Bill of Rights is predicated on a United Kingdom of Great Britain and Northern Ireland as at 1999. We are trying to get up to 2008 but the outcome of the national conversation, and indeed the commission, is that it is likely that the ground is moving under our feet. The constitutional situation is going to change and to some extent it already has. Within my lifetime of being a Member of this Parliament we had the devolution of railways. Powers are being devolved down, so will the Bill of Rights be discussed? In some shape or form it will because obviously part of the national conversation is the Scotland that we seek. I tend to think though that matters are more likely to be dealt with on fiscal powers, on emigration powers, on firearms and so on that perhaps impact with the body politick and with our people.

  Q336  John Austin: How would you want to see the public, civil society, particularly hard-to-reach groups, involved in the formulation of a British Bill of Rights?

  Mr MacAskill: I think we take the view that it is the responsibility of good government to look after even hard-to-reach groups, and at the end of the day it is up to us to try and encourage good citizens, not create model citizens, which is a very totalitarian ethos, but to promote and allow our people to be all they can be. Part of that is about understanding, about education, not simply in terms of the three Rs and these such things but encouraging people in civic democracies, civic participation. There is not one simple way but we do look at matters such as the Scandinavian democracies as things that we aspire to. That is the kind of thing the Scottish Commission for Human Rights could be asked to look at, to improve awareness. Professor Miller is a very knowledgeable and talented man and no doubt he will be considering these aspects now that he is in power but, as I say, I have been persuaded to some extent that a lot of these matters are not simply about enforcing rights. It is about education, it is about public broadcasting, it is about early intervention and encouraging literacy at an early juncture. That is one of the advantages in the Scandinavian democracies and it is one of the reasons why, when we have a declining turnout in many elections in the British, American and Australian models, they have managed to sustain substantial participation in democracy.

  Q337  Chairman: Just following up that answer and the points you make about the Scottish Commission, in Northern Ireland they have been discussing their own Northern Ireland Bill of Rights for some time, years, in fact. Have you got any plans for a Scottish Bill of Rights?

  Mr MacAskill: Ultimately, as a political party in an independent Scotland, as part of our constitution we would wish a Scottish Bill of Rights. It would be predicated upon the ECHR with a few additional matters and the logic that it is the minimum and it can be added to, so that is ultimately where we would like to get to, but that is a matter for our national conversation to some extent.

  Q338  Chairman: Thank you. We have finished our questions. Is there anything you would like to add that we have not covered?

  Mr MacAskill: No. Thank you very much for your time and your invitation.

  Chairman: And thank you for yours.

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