The decision that temporary sheriffs are not compatible with the European Convention has more profound and lasting implications for practitioners to understand

The “temporary sheriffs” decision has been a wake-up call to practitioners and many others to make it their business to find out more about human rights. The principal effect of the decision itself will be to strengthen the integrity of our administration of justice and a judicial appointments board is now inevitable.

What of other implications? Well, on the one hand, whilst there will be a short term disruption of business and a need to appoint more sheriffs to meet demands most of the more alarmist headline predictions of “Barlinnie’s gates swinging open” and a “bigamy bonanza” are unlikely to be fulfilled as test cases are brought forward.

On the other hand, for practitioners the broader, more profound and more lasting implications can only be understood if not only the decision but the reasoning underlying the decision is placed within its context of Article 6 of the European Convention on Human Rights (ECHR) and how the ECHR is to be given further effect in our legal system.

The case itself was decided within the scope of the Lord Advocate’s liability under Section 57(2) of the Scotland Act which provides that “a member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible within any of the Convention rights…” The “act” in question was, of course, a prosecution before a temporary sheriff and the decision was that a temporary sheriff, due to lack of security of tenure, did not constitute an “independent and impartial tribunal” as required by Article 6 of the ECHR (“right to a fair and public hearing”).

The Human Rights Act

Well, one might be tempted to exclaim “you ain’t seen noting yet!” The point is that the full impact of the ECHR, and of Article 6, will only be felt after the Human Rights Act itself comes into force in Scotland and throughout the United Kingdom on October 2, 2000.

From that date, all courts and tribunals must take the ECHR into account and will be required to interpret all legislation, in so far as is possible to do so, in a manner compatible with the ECHR.

It will be unlawful for a “public authority” (not only local authorities but the public functions of a broad range of “quangos”) to act in a way which is incompatible with the ECHR.

An “independent and impartial tribunal” and Article 6 of the ECHR.

Article 6(1) states that “In the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

A “fair and public hearing” applies not only to a criminal charge but to “civil rights and obligations”. The rights or obligations in question must be “civil”, have a basis in domestic law and there must be a “determination” of the rights or obligations in questions.  Each condition has an autonomous definition within the ECHR and needs careful analysis but Strasbourg case law provides the following examples which illustrate the broad scope – contracts, land or property disputes, personal injuries, family law, employment law, licences, etc.

A “fair and public hearing”, generally speaking, provides the right to effectively participate and can include the rights to be present, to disclosure, equality of arms, adversarial procedure and a reasoned judgment, etc.  Its scope is much broader than would be immediately obvious from the “temporary sheriffs” case.

Numerous decisions concerning “civil rights and obligations” are taken by bodies other than courts or tribunals.  For example, professional disciplinary hearings, etc.&Many of the administrative decision-making processes of local authorities – planning and environment, licensing, social work, education, etc. – will clearly need re-visiting.  Broadly speaking, either such decision-making bodies must comply with Article 6(1) or there must be a right of appeal or review to a body which does meet Article 6(1) requirements.  For example, a sheriff (properly appointed!) or judicial review.  For such appeal or review bodies to meet Article 6(1) requirements they must enjoy a full appellate jurisdiction – i.e. going beyond the Wednesbury doctrine of irrationality, impropriety and illegality and be able to examine the merits, the facts governing certain administrative decisions so as to determine “proportionality” and hence lawfulness.

“Proportionality”, an autonomous concept of the ECHR, requires that the interference with a right by a public authority must be in accordance with law and, importantly, go no further than is necessary to “meet a pressing social need”.  The more important the right (such as Article 6) the more demanding is the application of this test and it is this concept of “proportionality” which provides the ECHR with its dynamism as a “living instrument”, will broaden the scope of judicial review and should be of most concern to decision-makers and practitioners.

Practitioners checklist

As an illustration of how practitioners must then prepare to raise their game in providing legal advice and representation the following suggested checklist may be of some assistance.

a) Is there an ECHR point?
b) What is the ECHR jurisprudence?
c) What has been the domestic interpretation of ECHR jurisprudence and what margin of appreciation may be relevant?
d) Which exemptions to ECHR articles, if any, may be relevant?
e) If certain exemptions are relevant, what are the tests of legality and proportionality?
f) Consider appropriate potential remedy, if any?

In conclusion, whist the “temporary sheriffs” decision may not have pleased everyone it will be of benefit to the profession as a whole if it has served notice that no practitioner can now afford not to make it his or her business to find out more about human rights.

Professor Alan Miller is a leading authority on human rights – practising as a partner with the Human Rights Law Consultancy, a division of the Lambie Law Partnership.  He is also President of the Glasgow Bar Association and a study Member of the Centre for the Study of Human Rights Law at the Glasgow Graduate School of Law, a joint initiative of the universities of Glasgow and Strathclyde.  He has been appointed by the Scottish Office to represent non-governmental Scottish interest in the Home Office Task Force which is overseeing the preparations of the implementation of the Human Rights Act throughout the United Kingdom.

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