Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 360-379)


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 measure?

  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 extreme!

  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 it?

  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.

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