ECHR at 75...how far have we really come?

Lynda Towers, Convener of our Constitutional Law and Human Rights Sub-Committee, reflects on the 75^th anniversary of the European Convention on Human Rights and on what AWI law can tell us about how effective our human rights protections really are.

The European Convention on Human Rights was signed on 4 November 75 years ago in Rome by 12 member states of the Council of Europe, including the UK.

The circumstances leading to the Convention’s creation are well-known, with the horrors of the Second World War providing a clear impetus for the creation of a legally binding minimum core set of universal rights.

In the decades since its creation, the Convention has been amended or extended by a number of protocols, and has been ratified by 46 states. The Convention rights, and the legally binding interpretations of those rights set down by the European Court of Human Rights in Strasbourg, have had a significant impact on domestic law across Europe, including in the UK and Scotland.

The Convention rights have been directly incorporated into UK law by the Human Rights Act 1998, and are baked into the Scottish devolution settlement. Much has been achieved in the last 75 years.

Whilst media headlines on human rights often focus on criminal justice or immigration, the reality is that human rights are relevant to very many aspects of our daily lives and those of our families, friends and colleagues.

By coincidence, I spent the 75^th anniversary of the Convention chairing Policy Perspectives session for the Law Society of Scotland. The focus of the  event was adults with incapacity law (AWI), and I was delighted to be joined by over 100 Law Society members with an interest in this important area of practice.

With more than 20,000 people in Scotland now subject to a guardianship order, many, if not most of us, will know someone who has come into contact with AWI law. Why do I mention this in a piece about human rights? Because how we protect and promote the rights of those who can’t make their own decisions is a clear marker of how strong our human rights protections really are.

In 2000 one of the first pieces of legislation passed by the new Scottish Parliament was the Adults with Incapacity Act, on which I was an instructing solicitor. At the time, this legislation was world-leading in terms of its principles-based approach to achieving ‘benefit’ for the adult.

However, times have changed and our understanding of international human rights standards has continued to evolve. In particular, we now recognize that the right to liberty and security protected by Article 5 of the Convention can be engaged in a very wide range of care settings where an individual is not able to consent to their placement.

At the time of writing, Scotland lacks a legal process to authorise these situations in a way that respects and safeguards the human rights of the people involved. We urgently need new AWI legislation to ensure that the human rights of everyone who might come in to contact with incapacity law is protected and promoted.

So, whilst there is much to celebrate as the Convention turns 75, we cannot afford to be complacent. Scotland should be leading the way in protecting and promoting human rights, and that means updating our AWI legislation as soon as possible.