Examination of Witnesses (Questions 360-379)|
CLANCY OBE AND
10 MARCH 2008
Q360 Lord Dubs: But it is workable?
Ms O'Neill: Yes.
Q361 Chairman: But you end up with
the anomaly which I put to the previous witnesses, that under
the Human Rights Act the Scottish High Courts can declare Westminster
legislation incompatible, but, if you have a British Bill of Rights
that does not apply in Scotland and provides rights that go beyond
the ECHR, you could have the position, taking the asylum seeker
example again, where, even though the legislation applies in Scotland,
the Scottish courts could not strike it down or declare it incompatible,
although an English court could.
Ms O'Neill: I wonder if you might
ask that question again.
Q362 Chairman: Okay, I will try again.
Suppose you have a British Bill of Rights which does not apply
in Scotland but that provides rights that go beyond the Convention
rights. Let us take the case of a right not to be destitute, for
example. What would happen is that an English court could declare
incompatible Westminster legislation which makes asylum seekers
destitute, but even though that law about asylum seekers applies
in Scotland as well the Scottish courts could not strike it down
or declare it incompatible because the Bill of Rights does not
apply north of the border.
Ms O'Neill: Yes, I agree. I think
that must be right.
Q363 Earl of Onslow: Mr Clancy was
saying earlier on, as I understood him, that if you are going
to have one it has got to apply to England, Scotland, Wales and
Northern Ireland. Did I understand you to say that or did I get
that the wrong way round?
Mr Clancy: What I said was that
you would have to view any British Bill of Rights through the
different perspectives of the various legal systems.
Q364 Chairman: So you would have
to have a British Bill of Rights plus (Scotland) or a British
Bill of Rights minus (Scotland), or (Northern Ireland) or whatever?
Mr Clancy: Yes.
Q365 Lord Dubs: Is that to do with
enforceability or the basic principles?
Mr Clancy: That is an interesting
question. It may have a bit of both. There may be different principles
involved, for example, a right to jury trial, but there may also
be issues of enforceability.
Q366 Chairman: If we take the jury
trial example, because I think that is quite a good one, we have
got in the ECHR the right to a fair trial and everybody is happy
with that because the right to a fair trial can mean different
things in different places.
Mr Clancy: Indeed.
Q367 Chairman: But if it were to
go beyond that and say, "You have a right to a jury trial",
going back to our original question, would it be seen as a human
rights enhancing measure in Scotland or Westminster stamping its
big boots all over the Scottish legal system?
Mr Clancy: It would be a considerable
innovation in the Scottish legal system.
Q368 Chairman: Ah, but that is not
answering the question. Would it be seen as, if you like, an enhancing
Ms O'Neill: It might well be by
some and not by others. The point that we would make is that,
if the content of a Bill of Rights is determined at a UK level
without giving consideration to the sensitivities of the different
jurisdictions, that is more the issue. I do not think we are saying
for a moment that there cannot be British rights incorporated
in a Bill of Rights but that those have to be agreed in light
of the differences which exist within the different jurisdictions.
Q369 Chairman: There may well be
rights that you have in Scotland that we do not have south of
the border which we might want to import the other way round.
Mr Clancy: Indeed.
Earl of Onslow: I rather got the impression,
and I would like to get it right in my mind, that the difference
on right to trial by jury is more in appearance because you do
things, as you said, at the same level as we do in England. It
is in fact a gloss rather than a matter of substance. You have
the right of trial by jury.
Chairman: No, you do not.
Earl of Onslow: Yes, you do, because
it has been established for such a long time.
Chairman: No, it is not a right. The
prosecution has the right to trial by jury, not the citizen.
Q370 Earl of Onslow: Yes, but I particularly
asked you, "Is the level of trial by jury the same as it
is in England?", to the same level, and if I remember rightly
you said yes.
Mr Clancy: Yes, I did.
Q371 Earl of Onslow: What that means
is that that has actually been established for a sufficiently
long time that to try and overturn it would, quite rightly, produce
an uproar. What I am suggesting is that, because it has been established
by custom and practice for such a long time, it is in effect a
right to trial by jury even though technically the Chairman is
absolutely right: it is the prosecutor's right to choose. Does
that make sense or not?
Mr Clancy: I can see where you
are coming from, but if you are talking about who owns the right,
is it the person who is accused or is it the prosecutor, in Scotland
it is the prosecutor who owns the right, whereas you might contend
that under Magna Carta it is the accused who owns the right. Remember
that we have not had a series of approaches to criminal law such
as offences triable either way. That never existed in Scotland.
Whilst the net effect is that if I murder someone I will be tried
with a jury, so I effectively can secure a jury by killing someone,
Q372 Earl of Onslow: It seems rather
Mr Clancy: I know, but that is
really what it is about. It is about the seriousness of the offence
and the forum in which it is prosecuted rather than a right inherent
in me as a citizen to claim a jury trial.
Q373 Chairman: Supposing, taking
that example, that the prosecutors were to go a bit off the rails
and say, "We have had this murder but I think it should be
tried in the sheriff's court", what could anybody do about
Ms O'Neill: Perhaps I might re-frame
that question because there is legislation which governs the types
of offences which are tried in particular ways. Perhaps one could
phrase it in this way: if the Scottish Parliament decided tomorrow
to legislate in a way which removed jury trial from the prosecution
of certain offences there is no right entrenched anywhere in Scots
law which would prevent the Scottish Parliament from so doing.
Mr Clancy: And remember, for example,
that the Lockerbie bombing was prosecuted before a bench of three
judges with no jury involved, so the High Court, sitting as the
principal criminal court, is in a position to have its procedure
modified in certain circumstances.
Q374 Chairman: Just to square this
circle, going back to my earlier point about human rights enhancing
measures, I think you have a maximum time when somebody has to
be brought to trial.
Mr Clancy: Yes.
Q375 Chairman: That is the sort of
thing that we might want to look at the other way round.
Mr Clancy: Indeed, and comments
were made earlier about whether habeas corpus applied in
Scotland, which it does not. We instead have what used to be the
110-day rule. I am not entirely sure what the number of days is
now in which someone has to be brought to trial. We will write
to you on that point.
Q376 Lord Dubs: May I interpose with
this question? We have talked a bit about certain rights just
now which we have in England but which you do not have here. Are
there any rights, other than the 110-day rule, that you can think
of that you have here but that we do not have in England and maybe
we should consider adopting them? You could write to us about
it if that is an unfair question to throw at you like this.
Mr Clancy: It is not an unfair
question. We are here, after all, to talk about a Bill of Rights.
We were just thinking perhaps about the right to free personal
care which applies in Scotland but does not, as far as I am aware,
apply in England and Wales. Remember that there is a right to
free prescriptions which applies in Wales but does not apply in
England, and there is currently a proposal to extend that provision
to Scotland, so there are these different areas which are more
in the social area than the substantive human rights arena. Those
are a couple of examples.
Q377 Baroness Stern: We were talking,
before we moved around a bit, about what you think should be in
a British Bill of Rights and I asked you if there were other areas
which could not be applied to Scotland other than the jury trial,
and if you answered it I have already forgotten whether you said
there were any other areas apart from jury trial. Did you?
Mr Clancy: I think that was the
only one which came to mind.
Q378 Baroness Stern: I thought I
had not missed anything. You also said you were thinking about
the possibility of cultural rights. I wonder if you could say
a little bit more about what you meant by that.
Mr Clancy: Perhaps rights in relation
to language. Remember, as you will have come into this building
you will have seen a sign which was both in English and in Scots
Gaelic, and there are legislative provisions applying to the use
of the Gaelic language in Scotland so that people in certain parts
of the country may employ the language in court and, of course,
in this place speeches by Members can be made in that language
and committees have heard evidence in that language.
Q379 Baroness Stern: Thank you. That
is very helpful. Under this heading of "Content" I would
like to move on to talk about how wide a Bill of Rights might
go and how far it might be a statement of aspirations. Would you
see any benefit in including rights which are not justiciable
and do you think there is any merit in a Bill of Rights being
a document that does not just set out what we could have now but
also sets out what an aim would be for what human beings should
ideally have in their society?
Ms O'Neill: I would have no difficulty
with a Bill of Rights containing aspirational statements provided
there was clarity as to which parts of the Bill of Rights were
intended to be aspirational and which were intended to be legally
enforceable. From the perspective of the Law Society the aim would
be to achieve certainty about the law and anything which muddled
those parts which were aspirational and those parts which were
enforceable would be very likely to cause us difficulty.