Examination of Witnesses (Questions 320-338)
MR KENNY
MACASKILL,
MR BRIAN
PEDDIE AND
MR PAUL
CACKETTE
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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