This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Lecture at Glasgow University Law School .
I would like to begin by offering thanks to Glasgow University School of Law, and to Craig French for inviting me here today. As Craig has said, this is one in a series of lectures where you have heard some distinctive voices in the world of human rights law: including Lord Rodger, a Justice of the Supreme Court; Tom Kelly a leading practitioner whose firm has been involved in many of the most famous recent cases, and Simon Collins, who was part of the team presenting the Lord Advocate’s case to the Supreme Court in the Cadder case. One might speculate on whether any of those three (in the case of myself and Lord Rodgers, those getting on in their careers) knew when they started their legal careers that the European Convention on Human Rights would play such an important part in their lives. But nearly all of you today can expect that some point that you will give legal advice on human rights law. Among you are future judges or sheriffs; some of you will address the Supreme Court as counsel; and some of you will be partners in law firms specialising in human rights law.
The law on human rights is a recurring feature of my work, and the work of my office as Advocate General. When I was a student did I expect to be giving legal advice on human rights in the course of my career? I certainly hoped that I would – I have been a passionate believer in human rights all my life – and, specifically, advocated the incorporation of the European Convention on Human Rights in to the law of Scotland. That incorporation allowed people in Scotland to vindicate their Convention rights in Scottish courts. In my view, the passing of the Human Rights Act 1998, and the inauguration of a ‘rights culture’ in the United Kingdom, was a major achievement by the last (Labour) Government. I would like to stress that point to you today, because sometimes that achievement has been questioned recently – in some sections of the popular press (I wonder if it had been called a ‘convention’ not ‘European Convention’ it would have been more popular with the tabloids) and by some, but by no means all Parliamentarians in both Westminster and the Scottish Parliament. It was inevitable, I suppose, that when courts came to make unpopular decisions based on human rights law – the Hirst judgment from Strasbourg on prisoner voting, or Supreme Court on access to lawyers in Cadder, - that our commitment to the Convention on Human Rights would be tested.
But, as I said, I personally supported this development in our law, and engaged in political debate prior to the incorporation of the Convention in our law. So, I can hardly complain when actions by government and legislation which government has supported are scrutinised by the courts and sometimes found wanting. That was the necessary and anticipated outcome of, firstly, the introduction of a human rights control in the devolution settlement and then secondly the full incorporation of the Convention in our domestic law in the UK courts. As a Scottish Minister, I was subject to this scrutiny. I can well remember the day when it fell to me, as the Minister responsible for Scottish courts, to suspend the use of temporary Sheriffs following the judgment of the Inner House in Starrs & Chalmers – a decision based on the way the human rights control worked within our devolution settlement when it took the view that reappointment of temporary Sheriffs was not EHRC compatible. That was not long after the Scottish Parliament began sitting. Now, as a UK Law Officer, I find that the examination of policy in the light of Convention law constitutes a significant part of the daily work of my office. It seems to me that it follows not only from the Human Rights Act but from the very fact that the UK is a signatory to the Convention that there will be times when a decision of the court forces government to change its policy. Why would I wish that to be any different?
Last year at the Human Rights convention in Edinburgh, sponsored by the Scottish Commission on Human Rights I had the good fortune to meet the UN High Commissioner for Human Rights, Navi Pillay – a distinguished South African lawyer – and I put that view to her. As a government Minister, one has to follow the law and if the court tells us what the law is, the Minister is bound by that. She told me that was music to her ears, because in so many countries which she visited, it was precisely the point she hoped to convey to governments.
As a former Lord Chancellor and Lord Advocate, Lord Mackay of Clashfern, told a Parliamentary Committee only a few weeks ago: “I would just like to say that our country has embraced the rule of law for many, many generations and it still is bound by the rule of law. Therefore, when we have taken on legal obligations, as we have under the Convention of Human Rights and Fundamental Freedoms in Europe, the rule of law requires us to obey the courts that are set up under that Convention whose judgments are binding. I do not myself regard politics and law as, in any way, in conflict because politics in our country should be carried on under the rule of law. Indeed, that is how it happens.”
I had cause recently, with regard to Parliamentary debate which the Attorney General was taking part in on the issue of prisoner voting rights, to look at how we came to take on those legal obligations under the Convention. The Convention was drafted between 1949 and 1951 –the last years of the Labour Government under Clement Atlee, only 4 to 5 years after World War Two when Europe had been blighted with Nazism and fascism and when Stalinism was spreading in the East. In the Summer of 1950, the Cabinet considered a memorandum by a Foreign Office Minister Kenneth G Younger - the Cabinet papers from that period are publicly available. Mr Younger queried whether the right of individual petition should be included in the Convention, in terms which illustrate how far the culture of human rights has come since those days. He said: “The proposal to allow individual petitions was unacceptable to us because in the present state of international relations it appeared likely that the system would be abused for political purposes and because there appeared to be a danger that it would be misunderstood among the backward people of the Colonies as suggesting that the ultimate source of authority in those territories resided elsewhere than in the Crown.”
However, in fairness, he goes on to make a point which rings true today. He warned of serious consequences if Britain were one of a small minority of Council of Europe Members who did not accept the Convention: “Thus it would be hailed on the Continent as further evidence of the luke-warm attitude of His Majesty’s Government towards the affairs of the Council of Europe in general and might be expected to be seized upon by the Cominform as showing that our professed interest in the enjoyment of human rights by the inhabitants of other countries was mere hypocrisy and that, when it came to the point, we were unwilling to accept in respect of our own territories obligations similar to those which had been imposed upon the Eastern European States under their peace treaties.”
But by January 1951, after the UK had signed the Convention, the then Foreign Secretary, Ernest Bevin, reported to the Cabinet – and my particular interest at that point was in the Right to a Fairly Elected Legislature, the right which now appears in article 3(1). The UK had successfully argued against the use of the term “universal suffrage”. It has been suggested that the UK Government in use of that term had wisely anticipated the issue of prisoner voting rights and was having none of it. However, in 1951, their concerns were in fact of a different order. There was a concern, echoing the point about individual petition, that a reference to universal suffrage might “draw attention to the Colonies in an unfavourable light”. They had also been concerned with “…the possibility that the Article as drafted…might require us to adopt an electoral system of proportional representation.” Well Heaven forbid!
Some of the Cabinet were more blunt in their assessment of the Convention. Herbert Morrison, the Cabinet Secretary (and grandfather of Peter Mandelson) said “I have always been against this Convention – all of it. Humbug”. And the Attorney General at the time, Sir Hartley Shawcross, thought the Convention might not stop there – there was a “danger that a Conservative Government might accept the jurisdiction of the court.” As they say, the rest is history.
And indeed they did accept the jurisdiction of the court. And in 1966 a Labour government allowed individual petition to that court. From then on, it was always a perfectly reasonable and rational proposition that, if litigants can take cases to the European Court of Human Rights on Convention grounds, they should be able bring cases before Scottish courts and courts elsewhere in the UK.
And as I’ve said the fact is, that those courts are going to make decisions that are uncomfortable for governments. Last year’s Supreme Court judgment in Cadder is a case in point. I understand that Mr Collins has already spoken to you about that case, so you will be aware that it concerns the right not to self-incriminate and the right to seek legal advice. Perhaps you have also followed debates in the Scottish Parliament, which followed on from that case – last year, when emergency legislation was passed in response to the Cadder judgment, and this year in the context of debate on the current Scotland Bill. During those debates, some Parliamentarians have been critical of Strasbourg jurisprudence and of the jurisdiction of the Supreme Court. It was sometimes argued that perhaps too much stress placed on a Turkish case (Salduz) which was not relevant to our system in Scotland. Was the distinctive character of Scots criminal law under threat, and being damaged by a court “in London”?
In answer to those criticisms, I was struck by a refreshing headline in the Scotsman just after Cadder was published: “All Those In Favour Of Unfair Trials, Please Stand Up”. That was the headline to an article by Maggie Scott QC, in which she argued that those of us who seek the development of Convention rights within our legal system should embrace the consequences of those developments. What attracted me to the headline was that it drew attention to the principle at issue. Do we actually think that securing a right to legal advice before police interview is wrong? The Cadder judgment received a lot of attention in the media – and some of you might have had the same experience as I did – that non-lawyers sometimes expressed surprise that a right to have a solicitor present was not already part of Scots law. (In fact, there were also some lawyers who had laboured under the same misapprehension).
It is not unreasonable to suggest that people in police custody should be allowed legal advice before interview and should be allowed protection against self-incrimination. That is what international standards of human rights expect of us. The law of Scotland has to stand scrutiny by international standards if it is to be something of which we can remain proud. Scots law is a living law, it has a job to do – it is not simply a totem of our national identity. Rather, it is the application of legal principles, which other nations would recognise, here in Scotland. If other developed legal systems have better ways of securing rights, such as the right not to self-incriminate, then our system should be examined and challenged to see if it can be improved.
You may well say, of course, that the highest criminal court in Scotland did examine the law on access to legal advice while in custody – well over a year ago in the McLean case. The law was tested by a bench of seven judges in the High Court who considered the case law of the European Court of Human Rights and concluded, unanimously, that there were sufficient safeguards in our own procedures, taken as a whole, to secure the rights of the accused person and ensure a fair trial. It is a judgment which bears reading and I believe it makes a persuasive case that the system in Scotland is, or rather was, fair if viewed as a whole. As a whole, there were protections which seemed effective in avoiding miscarriages of justice.
But, the issue in Cadder was not whether, as a whole, justice is done. The real question is whether one specific right – the right not to incriminate oneself –was protected. As you know, the Supreme Court sat as a bench of seven and the lead judgments were given by two very distinguished lawyers, Lord Hope and Lord Rodger. They were in agreement and together make a very persuasive argument about the extent of the obligation on the police to allow access to legal advice and assistance. The fact that a suspect may be detained by the police for six hours without access to legal advice does if you think about it make it more likely that that person will say something incriminatory which would be used to make it easier to obtain a conviction. That is perhaps the reason why the system of detention introduced following the recommendations of the Thomson Committee in 1975 took the form it did.
If you look at the Thomson Committee recommendations closely, as the Supreme Court did in Cadder, this particular passage stands out: “Although a person who has been charged with an offence is entitled to an interview with a solicitor, we recommend that a solicitor should not be permitted to intervene in police investigations before charge. The purpose of the interrogation is to obtain from the suspect such information as he may possess regarding the offence, and this purpose might be defeated by the participation of his solicitor. It is for this reason that we recommend …… that it will be a matter of police discretion whether to allow the detainee an interview with his solicitor.”
Ultimately, (and at the risk of oversimplification) it would make it easier to obtain a conviction by giving a suspect time in which to incriminate him or her self. There is also some useful discussion of the right not to self-incriminate. It is not only a protection against wrongful conviction or unfair trials, but at another more profound level against the risk of torture and other forms of abuse in custody. Put another way: it is a right which arises from the historical origins of the European Convention on Human Rights, in response as I’ve said to totalitarian regimes of the nineteen thirties and forties.
And as Lords Hope and Rodger point out, the Strasbourg jurisprudence has been clear and constant on this point, and they are bound to follow that jurisprudence. Lord Rodger was characteristically emphatic: “…in my view there is not the remotest chance that the European Court would find that, because of the other protections that Scots law provides for accused persons, it is compatible with article 6(1) and (3)(c) for the Scottish system to omit this safeguard – which the Committee for the Prevention of Torture regards as “fundamental” – and for suspects to be routinely questioned without having the right to consult a lawyer first. On this matter Strasbourg has spoken: the courts in this country have no real option but to the apply the law which it has laid down.”
That brings me to one of the other points. Some doubts have been expressed about the reliance by the court on the European Court of Human Rights’ judgment in Salduz v Turkey, a hint by some that that decision was made in the context of a country with a less developed system of justice than our own. Now I have no expertise on the justice system in Turkey, although I cannot help but detect a whiff of naive complacency in that criticism.
And it is not at all clear why the circumstances in Salduz are so different from Scotland. Mr Salduz was convicted of an offence related to flying a particular flag from a bridge during a protest, and you certainly might want to query the fairness of that particular offence. But that was not the issue. The question was whether it was fair to use evidence against him when that evidence was obtained in police custody without access to a lawyer.
Let us imagine a sixteen year old Scots boy, McSalduz perhaps, at the time before the recent legislation was passed. The accusation against him is that during a protest march, or perhaps after a football game, he hangs a flag over a bridge as a crowd marches below. And you don’t need much imagination to think of several flags in a Scottish context which might be regarded as inflammatory and likely to cause a disturbance. The police detain him and are considering charging him with an offence relating to breach of the peace or an offence associated with incitement to religious hatred. He asks to see a lawyer (as his preferred TV viewing has been ‘The Bill’ rather than ‘Taggart’, he assumes he already has such a right) and this request is denied. He protests, but adds that he has a perfect right to fly this particular flag and no-one should be stopping him. The police regard that statement as an admission that it was indeed he who placed the flag over the bridge and they are now prepared to use that admission as evidence against him in court.
It is hard to see how, if the European Court were presented with those facts, it could distinguish them from the facts in Salduz, or conclude other than that had the boy had access to legal advice he would have been less likely to incriminate himself. One might think that there is “not the remotest chance” that Strasbourg would consider those circumstances to be compatible with the Convention. So, as a result of the Salduz, and Cadder cases, legislation has now been put in place which gives a detained person the right to obtain legal advice. And there are exceptions, related to practicality and also to the interests of justice, and the legislation provides for those. And, the period of detention has been increased to twelve hours, which hardly sounds like a result which some “hardened criminal” would welcome. But there is no reason why it should not reassure an innocent person who is detained by the police that person has the right to see a solicitor.
So, it has been a lesson for all of us not just Scotland, European countries, Belgium, France and The Netherlands for example – have had to review their law in the light of the Salduz judgment. Like those countries, we thought our law was fair, but on closer examination we see that it does not measure up to the standards of an international Convention – a Convention whose introduction into Scots law was widely (although, I acknowledge, not universally) welcomed.
So you can see that human rights has been on my mind, and it would be tempting to give examples of the ECHR legal issues which have crossed my desk since being appointed Advocate General last May. However, those issues are usually in the context of Law Officers’ opinions, given jointly with the Attorney General and the Solicitor General for England and Wales and you may be aware of the long standing convention that legal advice given to the Government of the day is not made public – nor is that the fact that such advice has been sought – unless the circumstances are exceptional.
Section 57 However, one human rights issue which has been fully debated in public relates to the amendments to the Scotland Act which are to be debated in the context of the Scotland Bill currently before Parliament. That is, the proposal to amend section 57(2) of the Scotland Act. Before my appointment as Advocate General, I had been serving as a member of the Calman Commission on Scottish Devolution. You will recall that, among other things, the Commission was charged with looking at the Scotland Act 1998 and considering proposals to advance the devolution settlement in the light of ten years experience. But, in the course of our deliberations, the Scottish judges asked us to consider a specific issue, that is: the effect of section 57(2) of the Act and the question of devolution issues being taken to the Supreme Court on points of Scots criminal law. It is a settled part of our system that civil cases have been appealed beyond the Court of Session to the House of Lords, or now the Supreme Court almost since the Act of Union in 1707. But until the Scotland Act 1998 came into force, the High Court of Justiciary was the final port of call in any criminal appeal.
By including the acts of the Lord Advocate as prosecutor within the range of things which may give rise to a devolution issue, the Scotland Act gave the Supreme Court jurisdiction to consider Scots criminal law insofar as it related to a devolution issue.
As I am sure you will already know from your studies, section 57(2) currently provides, among other things, that a member of the Scottish Executive, a term which will be changed to ‘Scottish Government’ in the Scotland Bill (which includes the Lord Advocate) has no power to do any act insofar as the act is incompatible with Convention rights. Any act of the Lord Advocate which breaches the Convention is therefore ultra vires. And a question of whether any such act is ultra vires a devolution issue which may be appealed to the Supreme Court. So, the Supreme Court, or previously the Judicial Committee of the Privy Council, have been considering Scottish criminal cases, through the window of “devolution issues” since 1999. It is, as you know, a court which by convention always includes at least two Scottish judges, but which does not necessarily sit with a Scottish majority. But in the criminal context there were arguments to be made either way. As I said, this issue was drawn to the attention of the Calman Commission but the Commission considered that to be beyond its remit.
Not long after taking office, I began an informal consultation process on this question. There were seventeen responses to the discussion paper. I asked then a fellow member of the Calman Commission, Sir David Edward, formally Britain’s judge in the European Court of Justice, to convene an expert group to consider this issue and to take account of responses to the consultation paper.
In essence, the question the expert group was considering was whether the Supreme Court should have jurisdiction to consider cases arising from criminal proceedings in Scotland. As I said, any act of the Lord Advocate in her role as head of the system of criminal prosecution may be found to be ultra vires by virtue of that section. But the same act would also be unlawful because of section 6(1) of the Human Rights Act. However, unlike human rights issues in England, Wales and Northern Ireland, in Scotland, there is no appeal to the Supreme Court on a criminal matter under the Human Rights Act – but rather the jurisdiction of the Supreme Court in respect of Scots criminal cases arises because of the legislation on devolution. Thus if the Scotland Act route to the Supreme Court were closed off, there would be no appeal to that Court from the High Court of Justiciary. The only route of appeal would be direct to Strasbourg.
It can be argued that it is essential that there is a uniform standard of protection of Convention rights throughout the UK, and the Supreme Court is there to ensure that. And it can also be argued that protection of human rights is an inherent, and a fundamental, element of the devolution settlements in Scotland and elsewhere. If the only route of appeal was to Strasbourg from the High Court, then not only would appellants be denied a timely and effective remedy, but where there was a breach of the Convention, it would be the United Kingdom ironically, as the member of the Council of Europe, which would be liable for the action.
I know that many people think it odd that a consequence of devolution for Scotland is that the Scottish criminal courts, whose autonomy was guarded, proudly, for so long, is compromised by referral to a court in London, on which the majority of judges need not be qualified in Scots law.
Now the proposed solution, which the Expert Group proposed is to add an amendment to the Scotland Bill, is to remove the Lord Advocate’s prosecutorial function from the ambit of section 57(2) of the Scotland Act. Her actions would be still be scrutinised by the High Court of Justiciary which is in turn obliged to give effect to Convention rights. And she would, in the same way as her counterparts elsewhere in the UK, be subject to section 6 of the Human Rights Act.
And, if we remove the Lord Advocate’s retained functions as a prosecutor from section 57(2), a question arises at to whether the jurisdiction of the Supreme Court is maintained. The conclusion recommended by the Expert Group, which the Government accepted was that there should be a statutory right of appeal to the Supreme Court in relation to matters where it is alleged that the Lord Advocate has acted incompatibly with a Convention right or Community law. That appeal would be from the High Court of Justiciary, sitting as a court of criminal appeal and would replace the existing devolution issue procedure. By retaining the jurisdiction of the Supreme Court, we ensure that fundamental rights which are enshrined in international obligations are secured in a consistent manner throughout the United Kingdom.
Of course, one might conclude that the Supreme Court is, or is becoming, to some extent, a constitutional court for the UK. And why not? There are many constitutional courts around the world – about 56 at the last count, but that is probably a discussion for another day. It is not the only positive development in the field of constitutional law in the last year. Some months ago I made the mistake of suggesting to the Deputy Prime Minister that I was interested in constitutional law and as a result ended up spending many late nights until 3am (and once until midday the next day) doing a Bill to get a referendum on the Alternative Vote. We have now started debating the Fixed-Term Parliaments Bill in the House of Lords and will follow this with the Scotland Bill, which makes progress in the devolution settlements. And, before I draw my observations to a close, I should mention the possibility of a new UK Bill of Rights. This prospect was included in the Coalition Agreement – that is, the agreement reached by the Liberal Democrats and the Conservative Party on taking office last year. It is important to note the wording of that agreement – a new Bill of Rights would “incorporate and build on all our obligations under the European Convention of Human Rights, [and] ensure that these rights continue to be enshrined in British law.” The Government is committed to creating a Commission that will examine the case for a UK Bill of rights. The aim will be to ensure both that our rights and liberties are protected, and to see if things can be done better in future.
And I understand that the Justice Secretary and Lord Chancellor, Ken Clarke, intimated on the Andrew Marr show last month that we can expect to see an announcement on this issue soon. So watch this space.