Joint Committee on Human Rights Minutes of Evidence


Examination of Witnesses (Questions 340-359)

MR MICHAEL CLANCY OBE AND MS CHRISTINE O'NEILL

10 MARCH 2008

  Q340  Chairman: Thank you very much. We like to get out and about.

  Mr Clancy: The more often you come here the better.

  Q341  Chairman: Could I ask you whether you welcome the debate about a British Bill of Rights and whether you think a Bill of Rights is needed?

  Mr Clancy: Yes, I think we do welcome the debate, the debate, of course, having started some years ago with one of the committee's membership, Mr Anthony Lester (as he then was) writing articles and making speeches in the 1960s. Of course we welcome these debates. The concept of human rights is a continually evolving one. It is one which develops as litigation expands and illuminates its various courses and we think that it is a good thing to have these issues debated. Do we agree with the idea of a Bill of Rights for Britain? That really depends, does it not? It depends on what the Government is going to consult upon in the not too distant future in terms of its proposed Green Paper on a Bill of Rights and Responsibilities. It depends on the way in which things are framed when eventually that comes to be, and I think that is where we stand at the moment.

  Q342  Chairman: Is there a particular rights perspective in Scotland which needs to be reflected in the debate?

  Mr Clancy: Sometimes it is not so much that there are particular rights in Scotland which need to be reflected. It is more that there are some rights which apply in England which do not apply in Scotland.

  Q343  Earl of Onslow: Such as?

  Mr Clancy: Such as the right to trial by jury, my Lord. I think it is important that whenever we are talking about the issue of a Bill of Rights for Britain we see this through the prism of the three jurisdictions which apply in the United Kingdom, through England and Wales, Scotland and Northern Ireland, because there is a risk that someone writing simply from the perspective of Scotland will take a different view from someone writing simply from the perspective of England and Wales, and I think that is an important feature. It is not so much, we would say, rights for Scotland which need to be reflected; it is that when we are coming to compose this Bill of Rights (if that happens) we should have a holistic view of the rights of citizens in this country.

  Q344  Chairman: Mr MacAskill seemed to be making quite a big deal, rightly or wrongly, of the significant constitutional difficulties that would arise from a British Bill of Rights. I get the impression from what you are saying that you do not think they are insuperable difficulties but we have to look at the differences in the traditions, the structures and the constitutional arrangements. Do you think there are insuperable differences to producing a British, ie, for the United Kingdom as a whole, Bill of Rights, or is it simply a question of making sure that what is done reflects those different compartments, as it were?

  Ms O'Neill: If we take it from a legal perspective I do not think there are insuperable difficulties but there are issues around the mechanics of a Bill of Rights which would have to be addressed by Parliament. One of those is that, of course, the Scottish Parliament, while it cannot presently amend the Human Rights Act, does have competence to legislate for human rights outside of that Act. If a Bill of Rights was passed by the Westminster Parliament and the Act incorporating that Bill of Rights was not in some way entrenched then the Scottish Parliament could repeal those parts of the Bill of Rights which fall within its devolved competence or it could legislate to derogate from the Bill of Rights in relation to these issues.

  Q345  Earl of Onslow: Can I ask a question here solely to clear my own mind? The Scottish Parliament cannot repeal the Human Rights Act. It is responsible for human rights in Scotland and because it cannot repeal the Human Rights Act it cannot act outside the Human Rights Act. Would that little encapsulation of the Human Rights Act not apply exactly to a Bill of Rights were it to be enacted?

  Ms O'Neill: Only if relevant amendments were made to the Scotland Act, and that is all the point to be made about it.

  Q346  Earl of Onslow: What, to have a Bill of Rights which was UK-wide would require amendment to the Scottish Act, would it?

  Ms O'Neill: In order to ensure that the Scottish Parliament could not legislate in contravention of that Bill of Rights would require an amendment to the Scotland Act.

  Q347  Chairman: You would have to entrench it for the Scottish Parliament in the same way as the Human Rights Act?

  Ms O'Neill: Yes.

  Q348  Lord Dubs: In your evidence you say that a Bill of Rights should be a "citizen-centric mechanism". Could you elaborate on that please?

  Mr Clancy: We will try.

  Q349  Lord Dubs: Your words!

  Mr Clancy: Yes, indeed. We did not mean that it should only relate to those who are citizens. What we were trying to convey was that it should not depend simply on rights bestowed on people but rather that the people should be involved in some way in the construction of those rights.

  Q350  Lord Dubs: And that would be a political process, a consultative process? What are we talking about?

  Mr Clancy: It would be both a political and a consultative process. I think the Lord Chancellor, when he made a speech in January, was talking in terms of looking at citizen meetings and summits where such a concept could be floated.

  Q351  Baroness Stern: I would like to move on to the content of a possible Bill of Rights. You have written to us, very interestingly, on that matter and you suggest that a Bill of Rights should be "ECHR plus", so I will not ask you which you think. Could you say something about what rights you would wish to see included within a British Bill of Rights, and also you have told us that you are cautious about including rights, such as the right to trial by jury, which does not exist in Scotland, and I know Lord Onslow is about to get agitated about this but I am afraid this is the case, and whether there are any other problematic areas which could not be included in a Bill of Rights which apply to Scotland? That is a big question.

  Mr Clancy: What would be additional to a Bill of Rights building on ECHR? One could envisage, dependent upon what Parliament eventually decided, that there should be social and economic rights included, and perhaps cultural rights as well. It was in that kind of area that one was thinking in terms of "ECHR plus". When one is talking about the development of these things, as the Cabinet Secretary said, there is an issue about the detail which a prospective Bill of Rights would contain and it would need a lot of discussion and a lot of consideration, and remember that if one included rights such as a right to education some people might say that they wanted a right to a private education. If one included issues about a right of healthcare, some might say that they wanted a right to private healthcare, so it is a very broad, quite politically-orientated issue, and, of course, one on which the Law Society could not legitimately have a prescriptive view.

  Q352  Earl of Onslow: May I ask my question about jury trials, and again this is solely for my own understanding because I frankly do not understand it? Are all serious crimes in Scotland, in other words, the equivalent of the ones which would be tried by jury in England, actually tried by jury as a matter of fact rather than as a matter of right?

  Mr Clancy: Yes, is the answer. The nature of the jury in Scotland is different from the nature of the jury in England.

  Q353  Earl of Onslow: You can produce a "not proven" verdict, can you not?

  Mr Clancy: There are three verdicts—guilty, not guilty and not proven, and, of course, our jury number is different. We have 15 people rather than 12, and, of course, the structure of our criminal courts is different from that which obtains in England and Wales. The High Court of Justiciary, which is our supreme criminal court, was founded in 1672, so it is a 17th century creation, and that date might chime in terms of some of the other documents which we mention in our submission, like the Claim of Right or the Bill of Rights, but the 1672 foundation of the High Court of Justiciary included in it that it should have a jury. The determination as to whether a case is tried in that court is at the instance of the prosecutor, in Scotland the Lord Advocate, and it is really the determination of the forum where the crime is to be tried which determines whether or not there is a jury involved. Therefore, in a sense, we do not have the Magna Carta. The Magna Carta did never apply in Scotland and when clauses 39 and 40, which apply to this particular issue, that "no freeman should be taken or imprisoned or decised or exiled or outlawed or anyways destroyed"—

  Q354  Earl of Onslow: Can we have it in the original Latin?

  Mr Clancy: Now, now. I only have a translation at home, so you will have to bear with me on that.

  Q355  Earl of Onslow: Thank goodness!

  Mr Clancy: Having a judgment of his peers under clause 39 was never in the Scottish imagination and it is always dependent upon the court.

  Q356  Chairman: Magna Carta does not guarantee jury trial, actually. Magna Carta says trial by peers "or in accordance with the law", not "and in accordance with the law".

  Mr Clancy: Indeed, that is correct. Thank you, Chairman.

  Ms O'Neill: In terms of the more general question of Scottishness and the content of a Bill of Rights, the only thing I would add to that is that, as I heard the question framed, it referred to the Scottishness of a Bill of Rights giving rise to difficulties, and I wonder if it might be viewed not in terms of difficulties but in terms of opportunities? I do not think the Law Society would necessarily view a Bill of Rights as being something which had to be British and could not be Scottish or Northern Irish, and certainly I would endorse quite a lot of the evidence which was given to this committee by Professor Sidoti in terms of the Northern Ireland experience and the existence within a single state of multiple rights documents.

  Q357  Chairman: Just to take the example of jury trial, if a Bill of Rights were to include the right to trial by jury, would the sky fall in in Scotland or would that be seen as a civil rights enhancing measure in Scotland to be embraced?

  Mr Clancy: The prosecutorial independence of the Lord Advocate is one of those issues which is as effectively entrenched in the Scotland Act as you can get, and so therefore, whilst the sky would not fall in, I am sure the Lord Advocate would be disappointed.

  Q358  Lord Dubs: May I just pursue the point that you made a moment ago, to be quite clear? You were saying that it is possible that there could be a Bill of Rights for England, one for Scotland, one for Wales and one for Northern Ireland, and that these might be different to some extent and that that would be a workable arrangement. I do not want to put words in your mouth but is that what you said?

  Ms O'Neill: Yes. There is no reason why not.

  Q359  Lord Dubs: Would there by any difficulties in, as it were, enforcing the rights in these different Bills of Rights, given that there might be people who would argue that they come under England or Scotland or whatever?

  Ms O'Neill: We have issues with enforceability within different jurisdictions of the United Kingdom at present. Those issues are before the courts. There are issues which come to the Scottish courts which involve decisions about applicability of Scots law to those who are perhaps not Scottish. It is not conceptually novel.



 
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