The discussion about Scotland's relationships with the UK Supreme Court and the European Court of Human Rights (ECtHR) should be about principles and their practical application. The promotion and protection of the human rights of everyone in Scotland must be central to the discussion.
The possibility of lodging an application to the European Court of Human Rights is no substitute for an effective domestic remedy.
The Scotland Act embedded human rights into the fabric of governance so as to ensure that everyone in Scotland is able to effectively enjoy the rights provided by the European Convention on Human Rights. In discussing how best to secure these rights, we should acknowledge Scotland's continuing constitutional journey and take into account opportunities for change and further progress to realise the human rights of everyone in Scotland.
The forthcoming parliamentary debate, informed in part by the Scottish Government’s Expert Group, provides a welcome opportunity to take a step forward. The Scottish Human Rights Commission wishes to assist this debate by identifying key questions and helping open up discussion on options to be assessed in light of their impact on the right of access to justice and an effective remedy.
Why is the Supreme Court necessary?
The Supreme Court upholds a point of principle in the law – that the human rights of everyone in the UK should be equally protected in law as long as Scotland is part of the UK and the UK is a member of the Council of Europe and signatory to the European Convention on Human Rights.
Those living in Glasgow should enjoy the same protection as those living in Gateshead and vice versa. This is why there is a need, under the present constitutional arrangements, for a Supreme Court and why cases such as Cadder have been properly decided by such court.
For the Scottish and UK Governments and Parliaments to maintain the principle of equality across the UK, there are a number of options to consider. The Scottish Government’s Expert Group will make its contribution. There is already an authoritative study (1) and a relevant consultation (2), both of which considered a number of options and shared a common view of the need for a continuing role of the Supreme Court as part of a devolutionary context.
The report of Professor Neil Walker, University of Edinburgh, explored a number of options including that of a “quasi-federal” Supreme Court whose jurisdiction relating to Scotland was limited to “common UK issues”, including application of the European Convention on Human Rights arising from Scottish cases taken under the Human Rights Act or the Scotland Act. The court could sit in Scotland to hear such cases and would of course include, as at present, Scottish judges. Under this arrangement all other appeals, not only criminal but also civil, which historically have gone to the House of Lords and now the Supreme Court, where only Scots law was at stake would be decided by Scotland’s own appeal courts.
The consultation of the Advocate General brought forward a unanimous recommendation that there be a right of appeal to the Supreme Court on human rights grounds from Scottish criminal cases.
These are only two options and the Scottish Human Rights Commission would be pleased to contribute to further exploration of them and others along with all other interested parties.
How can Scotland and Scots law be better represented in cases before the ECtHR?
One practical way forward would be for the Scottish and UK Governments to establish a memorandum of understanding. This could formalise the role of the Scottish Government, through the UK’s membership of the Council of Europe, in making direct representations before the ECtHR in cases which have distinctive implications for the Scottish legal system. It is extremely important to note however that the ECtHR is deliberately not a “court of final appeal”, e.g. cannot overturn a miscarriage of justice. In addition the expense and the backlog of over 150,000 cases (3) mean that the ECtHR is not and should not be seen as a substitute for the individual’s right of access to a remedy from domestic courts in Scotland and the UK.
How can we ensure in practice that Scotland’s human rights record is internationally respected?
Just as the Scottish Government and Scottish Parliament are currently seeking more powers for Scotland under devolution, they also claim increased recognition of Scotland as a responsible member of the international community. Promotion and protection of human rights of everyone in Scotland is a precondition for such claims to be legitimised.
Like other countries, Scotland is on a journey to bring the living experience of everyone up to the standards set by European and broader UN treaty obligations, including the most recently ratified, the UN Convention on the Rights of Persons with Disabilities. Next year, along with the rest of the UK, Scotland’s human rights record will be examined under the UN Universal Periodic Review by the UN Human Rights Council which will then make recommendations for how further progress needs to be made by Scotland.
SHRC looks forward to working with all MSPs to fulfil the human rights of everyone in Scotland.
The Scottish Human Rights Commission, established by the Scottish Commission for Human Rights Act 2006, is the national human rights institution for Scotland. It is independent of both Scottish and UK Parliaments and Governments.
The Commission is currently finalising a mapping exercise of the realisation of human rights in Scotland, identifying both the gaps as well as the good practices. This research will form the evidence base for the development of Scotland’s National Action Plan (SNAP) for human rights. SNAP will be the outcome of a process of engagement, facilitated by the Commission, among the public, Scottish Parliament and Scottish Government. It will be a practical roadmap to enable Scotland to demonstrate its commitment to fairness and fulfil its international obligations. It can represent an ambitious Scotland, forward and outward-looking, willing to both learn from and contribute to best practice in achieving the human rights of everyone in society, particularly the most marginalised and vulnerable.
(1) Walker, N, Final Appellate Jurisdiction in the Scottish Legal System, Scottish Government, January 22, 2010 http://www.scotland.gov.uk/Publications/2010/01/19154813/14 (accessed 17 June 2011).
(2) “Devolution Issues and Acts of the Lord Advocate – an informal consultation”, Office of the Advocate General for Scotland, http://www.oag.gov.uk/oag/102.62.html (accessed 21 June 2011).
(3) European Court of Human Rights, Pending Applications Allocated to a Judicial Formation: http://www.echr.coe.int/NR/rdonlyres/92D2D024-6F05-495E-A714-4729DEE6462C/0/Pending_applications_chart.pdf (accessed 21 June 2011).