Act permeates all types of practice

Andrew Normand - Crown Agent

There is little doubt that the Human Rights Act will affect areas of practice relevant to the Scottish prosecution service. However, as a result of devolution Scotland has been in the vanguard of legal and constitutional change in which the Convention rights have already had a significant impact.

Since May 1999 the Scotland Act has made it necessary for Scottish prosecutors to act compatibly with the Convention rights. We recognised the importance of that change and took effective steps to ensure that we were prepared for it. We have also been making further preparations for the commencement of the Human Rights Act itself. The Convention rights now permeate all of our work as prosecutors.

Over 800 challenges to actions of prosecutors based on the Convention rights have been raised. In around 25 of these the legal argument has been decided against the Crown. The Scottish system, with its traditional emphasis on the fundamental importance of a fair trial being afforded the accused, has in the main been found by our highest court to be compatible with the Convention rights. Not all successful challenges have directly concerned prosecution practice, but where they have we have accepted the need for change and implemented it where possible or supported appropriate legislative action..

However well prepared we may be we shall continue to lose some cases. That is no doubt as it should be, as the whole point of incorporating Convention rights is to give rights to citizens and opportunities to  challenge public authorities such as the public prosecution service. One change which we anticipate resulting from the commencement of the Human Rights Act is that it is likely to make such challenges easier. We have confidence in our preparations and we await the impact of the Act with interest, but there is inevitably uncertainty about the effect it will have on the number of challenges we have to deal with and the particular aspects of our area of practice.

Sandra Dickson - Head of Legal Services at South Lanarkshire Council

As a “public authority” for the purposes of the Act, South Lanarkshire Council will be subject to the Act in two ways: firstly, the Council must give effect to all law in a way which is consistent with the Act and, secondly, it will be unlawful for the Council to act in a way which is incompatible with the Convention rights protected by the Act.

In practical terms, this has far reaching implications for each and every area of the Council’s work ranging from education to housing and planning.

As a creature of statute, every Council function derives from a statutory power and every aspect of Council work is governed by some form of legislation, be it primary or secondary. Therefore, South Lanarkshire Council has been looking closely at both the legislation which empowers its actings and also the policies and procedures which flow from the legislation to ensure that both are compatible with the provisions of the Act.

In my view, the part of the Act which will have the most far-reaching consequence is Article 6: the right to a fair trial which will impact on the Council’s decision making processes. In broad terms, the Council’s work is a series of decision making all geared towards delivering services direct to the people of South Lanarkshire. For some time now, my solicitors and I have been rolling out a programme of reviewing the Council’s policies and procedures and carrying out employee training to make sure all employees at all levels within the Council have a working knowledge of the Act and the implications it has for South Lanarkshire.

The provisions of the Act extend also to private sector agencies who carry out public sector functions and so South Lanarkshire Council is taking steps to ensure that their external providers are geared up to cope with provisions of the Act.

The impact which this Act will have on the public sector and the volume of work which it will generate for public sector solicitors cannot be underestimated.

Alan Miller - Principal Reporter to the Children’s Administration

Children’s Reporters welcome the implementation of the Human Rights Act 1998. A powerful ethos of fairness runs throughout the Children’s Hearings system as does immense respect for private and family life - witness the fact that almost 80 % of cases referred to Reporters do not proceed to Children’s Hearings.

One of the most significant opportunities to arise from incorporation is for Scottish courts and authorities to take account of the UN Convention on the Rights of the Child when applying the European Convention to issues of children’s rights. This would mirror the approach the Strasbourg Court is now taking.

If the courts, practitioners and professionals follow this approach, it could help us to develop a forward-looking framework of children’s rights that recognise both their place in the family and community and their growing capacities.

For instance, the briefly stated ECHR right to education (Protocol 1, Article 2) is tremendously enriched by the UN Convention Articles 28 and 29. Article 6 fair hearing rights make more sense for children when read with the UN Convention Article 12. And any practitioner involved in Children’s Hearings would do well to become familiarised with the UN’s “Beijing Rules” on the Administration of Juvenile Justice.

Children’s rights in Scotland are good in parts but patchy in others. Here is an opportunity to make legal services and legal procedures really work for children.

Aidan O’Neill - QC

I anticipate that the major change which the Human Rights Act will make to my practice is in the range of remedies which may be asked of the courts in judicial reviews in Scotland. For example, where a statutory provision within devolved competence fails to make adequate provision in respect of say, Article 6(1) fair trial rights, it could be argued that the absence of a specific appeal procedure to the courts or other independent tribunal under the national provision itself evidences a failure on the part of the Scottish Ministers to introduce an appropriate appeal procedure, and therefore constitutes a breach of the Convention. Accordingly a positive declaratory or specific implement order might be sought from the courts for such an appeal procedure to be introduced.  Such procedure, although unusual, is justified on the broader reading of Section 57(2) of the Scotland Act which makes ultra vires any act or omission on the part of the Scottish Ministers which is contrary to the rights conferred under the Convention.

Such a positive declaratory order by the courts effectively ordaining the Scottish Ministers to introduce a particular legislative provision in order to comply with the requirements of the Convention would seem to be compatible with the whole scheme of the Scotland Act and, in particular, with Section 58 which empowers the Secretary of State to direct a member of the Scottish Executive either: (1) to refrain from proposed action where he has reasonable grounds to believe that such action would be incompatible with the international obligations of the United Kingdom; or (2) to order otherwise competent action from any member of the Scottish Executive where he has reasonable grounds to believe that such action is required for the purpose of giving effect to any such international obligations. Such positive action which may be required of the Scottish Executive by the Secretary of State is stated in Section 58(3) to include their “making, confirming or approving subordinate legislation” or indeed introducing a Bill to the Scottish Parliament. Thus, while the Secretary of State has the power to seek such positive action from the Scottish Ministers so that there is compliance with international obligations (other than Community law and Convention rights), the principle of ubi ius ibi remedium means that it is up to the courts to develop and grant similar orders if so petitioned by a petitioner who would otherwise suffer a violation (by omission) of his or her Convention rights.

Janette S Wilson - Solicitor of the Church of Scotland

The Church and other religious organisations may have claims as “victims” of breaches of Convention rights and in particular may enforce rights under Article 9 which guarantees freedom of thought, conscience and religion. Section 13 of the Act requires that if a court is determining any question which might affect the exercise by a religious organisation of a right under Article 9, it must have particular regard to the importance of that right. The section was inserted to meet concerns of religious groups that the Act might lead to interference, particularly in matters of doctrine.

Religious bodies may be deemed to be “public authorities” in regard to those of their functions which are functions of a public nature; in other words where they are acting “in the shoes of the State.” In the case of the Church of Scotland, its Board of Social Responsibility is the largest voluntary sector provider of social work services in Scotland and in that capacity it will be unlawful for the Board to act in a way which is incompatible with a Convention right. Other examples are less clear cut but it is possible that it may be held that the Church is a public authority in regard to the conduct of marriages, the provision of after school clubs, hospital, prison and other chaplaincy services and it has even been suggested that Sunday schools may be covered, albeit not provided on behalf of the State.

The position of the Courts of the Church (Kirk Sessions, Presbyteries, Commissions and the General Assembly itself) seems unclear. During the passing of the Bill through Parliament, the Lord Advocate stated that they were not Courts of the land so as to fall within section 6 (3)(a). This would, however, appear to be at odds with some previous authorities as to their status and to the position of the Consistory Courts of the Church of England. Connected with this is the interesting question as to the inter-relationship between the Act and the Church of Scotland Act 1921(11 & 12 Geo V, c29) by which Parliament recognised that it had no right to legislate in regard to matters of government, discipline, doctrine and worship within the Church as such matters fell within the Church’s independent spiritual jurisdiction and outwith the jurisdiction of the temporal courts. This principle was most recently upheld in the case of Logan v Presbytery of Dumbarton (1995 SLT 122). In cases where it is claimed that a civil right is involved (such as removal from office with resulting pecuniary loss) the Church may in future require to demonstrate that the rights of the individual concerned (for example in terms of Article 6) have been equivalently protected within the Church courts system.

Jill Bell - Anderson Strathern on employment law

As practitioners will be aware UK courts have been able to take into account decisions of the Court of Human Rights as an aid to construction since the adoption of the Convention. The power of the Convention was seen in action last month when the Employment Appeal Tribunal felt it correct to consider Strasbourg decisions in determining that the word “sex” as used in the Sex Discrimination Act should encompass “sexual orientation” in the case of an officer dismissed from the RAF because of his sexual orientation.

The Human Rights Act will have an effect on the application and interpretation of employment law statutes by the Employment Tribunals. The Tribunal will now be obliged to interpret UK employment statutes wherever possible in accordance with the rights of the Convention. Where it is impossible for it to do so, matters will require to be referred to the higher courts since neither the Employment Tribunal nor the Employment Appeal Tribunal has been given the power to issue a declaration of non-compliance.

Individuals employed by public authorities will be able to bring a claim for breach of their Convention rights directly against that employer. Employees of private employers, however, will only be able to rely on their rights under the Convention in asking a Tribunal to take these into account in assessing the fairness or otherwise of their dismissal.

The right to freedom of expression (Article 10) should cause an employer to hesitate before dismissing an employee acting say, in breach of their dress code and Article 9 (freedom of religion) might mean that an employer should allow employees to practice their religion without threat of being disciplined. It seems, however, that Article 8 (the right to respect for private and family life, home and correspondence) will be the Article most likely to have a bearing on employment relationships. A public authority employer who monitors its employees’ e-mails or opens private correspondence might find itself subject to a challenge as might an employer who does not allow time off to a parent (not qualifying for time off under the Parental Leave Regulations), who wants to spend time with their child during a summer period where holidays are not, for whatever reason, permitted.

Whilst it is clear that in the ever inventive realm of employment law the Convention rights will be explored in future cases and that that process will involve a degree of new litigation it remains to be seen how significant the impact of the new Act will be in the longer term.

Lexy Plumtree - Solicitor for the British Agencies for Adoption and Fostering in Edinburgh

It is not certain how the Human Rights Act 1998 and ECHR will affect this area of law, as with others. There are some points which will arise and possibly lead to changes. It must be remembered that children have human rights as well as parents.

This is the test in private and public law, including adoption. The Convention decisions recognise that countries are entitled to use such tests, but a balancing act must be done to show a consideration of parents’ rights. A wider margin of appreciation is allowed in child protection cases than in decisions about, eg adoption, which are final. The test may shift as a result.

Unmarried Fathers

The Convention Court has not taken the view that all fathers should have full responsibilities and rights: McMichael v UK 20 EHRR 205. This view may change. Our domestic law is likely to change anyway. Authorities should include fathers who are involved in their children’s lives, whatever their rights.

Adoption Law

There are two types of adoption: family ones (usually step-parent) and agency ones. There may be different challenges. Adoption has not been cut down by Court decisions and has been held to create a “new” family life - X v France Application No 9993/82(1982) 31 DR 241. In Scott v UK, decided 8/2/00, the court rejected an application by a mother whose child had been freed. There will be challenges and changes, but the whole system is unlikely to be overturned. A possible successful challenge is against freeing (a method of disposing with parental consent), especially where the child is not placed, the child is left with no family or family life.

This will be one of the biggest areas of dispute, especially in permanency cases. Authorities which reduce or terminate contact may be open to challenge, as compromising the parents’ chances of having the child returned - Johannsen v Norway 23 EHRR 33.

Child protection procedures should be clear, but are not regulated for. Similarly, internal authority systems for PROs (s86). Is there a need for greater clarity and openness in these and other procedures? Adoption agencies are regulated, but authorities need to consider opening up their panel system to birth families.

John Scott - Chairman Scottish Human Rights Centre

Criminal practitioners might assume that “devolution issues” have exhausted all ECHR challenges and that the Human Rights Act will hold nothing new for us. This would be a mistake. While many points have already been taken (even one or two outwith West Lothian), and most of these have now been decided , we must continue to be aware of the Convention in our area of law. In particular we should now consider challenges to the conduct of the various public authorities which have been only indirectly affected until now e.g. the police, the Reporter to the Children’s Panel, Customs & Excise , the Scottish Legal Aid Board and, especially , the courts themselves.

Many public authorities have undergone training and amended certain challengeable practices. Despite Scottish Appeal Court decisions many police officers are now allowing a suspect to have access to a solicitor before or during a s.14 interview. Similar changes will be observed elsewhere.

There are, however, areas where challenge should still be considered, e.g. the treatment of children in the criminal justice system - unruly certificates and detention in police stations and prisons, age of criminal responsibility.

The past 18 months have seen a restoration of some safeguards which were either locked away or possible only in theory - the accused now has a meaningful remedy against delay (which will hopefully result in better funding for the Crown), the “trial within a trial“ has allowed judges to behave like judges, there is even a feeling that corroboration might once again return to a form recognisable by Hume. The dust will continue to settle, although there will be fresh flurries. Our system will continue to benefit from its tradition of looking to Europe for ideas.