Human Rights Act one year on

A year ago The Journal asked a panel of practitioners what is the major change the full incorporation of the ECHR is likely to have in your area practice. A year on Roger Mackenzie returns to the panel to find out if the Act has had the anticipated impact.

Alan D Miller, Principal Reporter, Scottish Children’s Reporter Administration

From the early days of “Bringing Rights Home”, I and my colleagues in the Children’s Hearings System saw ECHR incorporation as a positive opportunity to promote forward-looking rights for children in Scotland.  Our experience since October 2000 has undoubtedly justified that pro-active approach.

The devolution issues case of S v Principal Reporter and Lord Advocate encompassed a number of fundamental challenges to the Children’s Hearings System.  However, the First Division established some crucial baselines in the judgments issued on 30th March 2001 – in particular, that Children’s Hearing proceedings are never criminal for the purposes of Article 6 (even when held on offence grounds), and that Children’s Hearings do constitute an independent tribunal.

The case has also provided the stimulus to address two issues of children’s rights that have long caused concern in the Hearings System. We are progressing arrangements to offer children access to Hearings papers, hopefully without bombarding them with sensitive information in an insensitive way.  And the Scottish Executive has committed itself to introduce a publicly funded scheme for legal representation of children at Hearings.

In day-to-day casework, there is likewise clear evidence that human rights awareness is simply becoming part of what people do.  In practice, Reporters, Children’s Panel members and Sheriffs appear to be delivering care and justice for children effectively, even if the theoretical debate about the integration of these concepts remains unresolved.

Further challenges will certainly appear in the years to come.  However, the experience of the last year suggests that Scotland’s unique juvenile justice system will be further strengthened by continuing to focus creatively on the needs, interests and rights of vulnerable and socially excluded children.

William Gilchrist, Deputy Crown Agent

The Procurator Fiscal Service has had to act in a compatible manner with the Convention since devolution in May 1999, and compliance with the Human Rights Act is now a routine consideration in all aspects of the prosecution of cases. One consequence of the implementation of the Human Rights Act is that it is difficult to quantify the number of human rights challenges as the practice that has been adopted since the commencement of the Act has been to raise Convention law and jurisprudence without the necessity of intimating a devolution issue minute.

The appropriate procedure to raise human rights issues has recently been considered by the Appeal Court in the cases of HMA v Mills and Cochrane. The court made avizandum and it is anticipated that some guidance on this procedural issue will be forthcoming.

In general, it may be said that the courts have been finding that Convention rights and the existing state of Scots law have been in agreement. The single most notable exception has been the right to a hearing within a reasonable time. That right has brought a distinct change in the law and has resulted in the loss of a number of relatively serious prosecutions. The jurisprudence from the Appeal Court on the interpretation of this right is still developing and it will be considered by the Judicial Committee of the Privy Council (JCPC) in relation to two Crown appeals against decisions of the Appeal Court to uphold devolution issue minutes maintaining that the Crown failed to bring the accused to trial within a reasonable time.

During the year, four significant cases involving devolution issues were argued before the JCPC. It considered the admissibility of evidence of an incriminating reply made by a suspect in response to a requirement under section 172 of the Road Traffic Act 1988, the evidential assumptions in confiscation proceedings under the Proceeds Of Crime (Scotland) Act 1995 and the compatibility of the fixed fee regime in criminal legal aid. With the exception of the appeal which dealt with cases heard by temporary sheriffs prior to the Appeal Court decision in Chalmers and Starrs v Ruxton, the JCPC found in favour of the Crown. Decisions of the Appeal Court and the JCPC have resolved some issues where the impact of human rights legislation was unclear and the increasing familiarity with the Convention and the case law of the Strasbourg Court should introduce more certainty in the application of this area of law.

Aidan O’Neill QC

The most surprising thing to me one year after the complete implementation of the Human Rights Act throughout the United Kingdom has been the somewhat cautious approach to the interpretation and application of Convention rights by the UK “top courts”, that is to say the Privy Council where devolution issues are raised, and the House of Lords in non-devolution cases. Questions might be raised as to whether or not these courts have indeed been “taking rights seriously”, at least in terms of interpreting fundamental rights as trump cards protecting unpopular individuals and minorities against even the duly democratically sanctioned policies of central government.   In most of their fundamental rights decisions to date, stress has been laid by the judges of the top courts on the, in general, non-absolute nature of the Convention rights and the need for due deference to Parliament’s (in reality the Executive’s) views as to the requirements of public policy.

Thus, of the five substantive devolution cases (and two applications for special leave to appeal) decided upon by the Privy Council between October 2000 and July 2001 (all of them on appeal from the Scottish criminal appeal court) in only one, Millar v Dickson (JCPC, unreported decision of 24 July 2001) has the Privy Council decided on an interpretation of the Convention favourable to individuals.   In all other devolution cases, the Privy Council has decided matters in favour of the Crown, not hesitating in the process to over-rule more individual rights friendly decisions of the High Court of Justiciary (as in Brown v Stott and HM Advocate v McIntosh). In similar vein, the House of Lords in R v Lambert 2001 UKHL 37, decided by a 4 to 1 majority (Lord Steyn dissenting) that the Human Rights Act has no retrospective effect and, except in cases brought at first instance against an individual by a public authority, cannot be relied upon in any way or relation to acts which pre-date the Act’s implementation date in October 2000.  

There are two foreseeable results if this apparent line continues. Firstly, at a legal level, it seems likely that applications by individuals to the European Court of Human Rights from the United Kingdom will increase (rather than decrease as was predicted post-HRA) in that there is now a greater awareness and raised expectation among individuals and the profession as to their possible claims under the Convention which does not, however, yet seem to be matched by a readiness on the part of the top courts wholly to accept Convention based arguments or to grant an effective remedy in respect of them.  Secondly, at a political level, there will be growing calls for a re-examination of the structure of our top courts, including questions of accountability and the most appropriate method of appointing the judges who serve thereon; one may note, in this regard the objection by the Fawcett Society of Women Lawyers on the appropriateness of an all male House of Lords bench deciding in R v A [2001] UKHL 25 on the correct balance between the rights of the accused in rape trials as against those of the (generally female) complainant.

Janette Wilson, Church of Scotland

One year on, the incorporation of the Act has made less direct impact on the Church than was perhaps anticipated.  Somewhat surreally the only Church body to be challenged in the courts with the claim that it functions as a public authority and in that capacity had been guilty of a breach of one of the Convention rights was the Church of Scotland General Trustees in relation to a dispute involving an agricultural tenancy. 

A change of solicitor led to this assertion being departed from. 

Indirectly, however, the Act has had more effect.  The need in the light of Convention jurisprudence to look afresh at old ways of doing things has led to one or two interesting debates in the central Legal Questions Committee. The new Act anent Discipline of Ministers drawn up specifically to comply with Article VI, received final approval by the General Assembly in May, having as a constitutional matter required approval by two succeeding Assemblies and the majority of Presbyteries (in terms of the Barrier Act dating from 1697 designed to avoid “over-hasty” change).  Instead of “trials for libel” being conducted and judged by the Presbytery of which the minister is a member or a Committee thereof with another Presbytery Committee acting as Prosecutor, the hearing of alleged disciplinary offences will now take place before a Presbyterial Commission, a body of five selected from a panel drawn from all the Presbyteries of the Church and including both legal and ministerial expertise. 

On a somewhat parochial note, a suggestion to a Council that legislation dating from the 1950s entitling local authorities to erect bus shelters on ground belonging to third parties without payment of any compensation might not be Convention compliant seemed to produce a greater enthusiasm to negotiate and to a satisfactory outcome for the congregation concerned –but that may have been purely coincidental!

David Leckie, Maclay Murray and Spens on Employment Law

Despite predictions of a tidal wave of human rights challenges in all areas of law, the Lord Chancellor stated earlier this year that “there has been no significant impact on the length or complexity of hearings and no significant increase in outstanding cases at any level of the system.”  Whilst practitioners in some areas of law  might take issue with this statement, it accurately reflects the position in employment law and practice.

Although human rights submissions have been made in many cases before the Employment Tribunals in respect of matters such as intrusive surveillance, dress codes, and random testing, these arguments have been used as additional armoury in support of submissions under existing law and such challenges have generally been unsuccessful.

However, there have been several high profile cases which have grabbed the headlines.  As a result of the case of Gerrie v MOD, the Scottish Executive changed the law to extend legal advice and assistance to Employment Tribunals. Curiously, this change has not been followed in England and Wales. In MacDonald v MOD,  the decision of the EAT in relation to sexual orientation under the Sex Discrimination Act was overturned by the Court of Session. In addition, there have also been a number of unsuccessful challenges to the fairness under Article 6 of certain professional disciplinary proceedings, such as Tehrani v General Council for Nursing and Preiss v General Dental Council.

The result of these challenges is that both substantive employment law and tribunal practice and procedure have remained largely unaffected by the introduction of the Human Rights Act. So far.

Lexy Plumtree, Scottish Legal Consultant with the British agencies for Adoption and Fostering and independent legal adviser to the Adoption Policy Review Group

Despite being a year since the Human Rights Act came into force, there have, as yet, been no overwhelming developments in child care law and adoption, but watch this space.

The test of welfare of the child as paramount has not yet been challenged in adoption law in Scotland. It is interesting to note that the proposed Adoption & Children Bill for England and Wales, due to be reintroduced later in the years, brings forward this test for adoption cases.

The test was discussed in the private law case of White v White 2001 SLT 485. The First Division took the view that there was nothing in Section 11 of the Children (Scotland) Act 1995, including the principle of welfare as paramount, that was not compatible with the Convention.

Unmarried fathers

We are still waiting for legislation to be introduced to extend parental responsibilities and rights to unmarried fathers who are shown on birth certificates. The Adoption & Children Bill in England and Wales proposes this.

Adoption Law

There has been no major judgment in an adoption or freeing case involving ECHR challenges. However, there is an appeal pending in the Court of Session, expected to be heard in 2002. This is against a freeing order granted in the Sheriff Court and expected to involve a challenge to the law on freeing, particularly contact. Currently, courts cannot grant a freeing with a contact order. Is this compatible with ECHR?

Another area where adoption is open to challenge is around the extensive delays in court. A recent freeing appeal disclosed en passant that the case had taken 19 months between lodging and the sheriff’s decision. Such timescales cannot be compatible with the duty to avoid delay.