Human rights protections must not be weakened: Faculty evidence

The Human Rights Act has been beneficial to Scotland, causes no significant problems in its operation, and its protections should not be weakened by any proposed British Bill of Rights, the Faculty of Advocates said today.

Submitting evidence to the Scottish Parliament’s European & External Relations Committee, which is examining the UK Government’s proposed repeal of the Human Rights Act and its replacement with a British Bill of Rights, Faculty states that it is "not convinced of the need for substantial reform".

It believes the incorporation of the European Convention on Human Rights into domestic law through the Human Rights Act and the devolution legislation has been beneficial for the people of Scotland.

“Today, the ECHR is of great importance in daily practice in the Scottish courts… Almost every area of Scottish practice and procedure has been examined and tested against the ECHR,” Faculty states.

“In many (perhaps most) areas, this process resulted in no substantial change. In others, it has resulted in important and overdue reforms of our law… [including] the appointment and tenure of judges, disclosure to the defence of the prosecution case, the right of a suspect to have a lawyer present when interviewed by the police, the right of unmarried fathers to participate in proceedings concerning their children.”

It adds: "The law’s treatment of disability, mental health, discrimination and equality has progressed significantly since incorporation of the ECHR into domestic law. All of these advances would not have been made as rapidly or at all, or maintained, without reliance on the Convention and the jurisprudence of the Strasbourg court."

While the UK Government has not yet published its proposals, Faculty comments that it "has been unable to identify any significant problem with the current operation of the Human Rights Act or the devolution legislation that incorporates the ECHR. It is not convinced of the need for substantial reform… It appears to the Faculty that the current system of domestic human rights protection works well”.

It further argues that the current system does respect the sovereignty of Parliament: "The Human Rights Act 1998 does not give the courts the power to reduce (or strike down) an Act of the UK Parliament. The powers given to the courts by the Human Rights Act 1998 are exercised by the courts pursuant to that Act of Parliament, and accordingly respect Parliamentary sovereignty."

The advocates emphasise that they are not opposed to reform as such – provided any reform does not diminish the protection of human rights. Their commitment "is to the protection of fundamental rights as such, and not to any particular legislative scheme”.

“While the Faculty would be opposed to any reform which had the object or effect of undermining or diluting the protection of fundamental rights in Scotland, the same considerations would not apply to any reform which has the aim and effect of supporting and promoting the protection of fundamental rights – or, indeed, of securing broader public acceptability of the protection of fundamental rights", the evidence continues.

“We do not consider that any of the rights currently in the Convention could be omitted from any domestic Bill of Rights without undermining the international rule of law and domestic human rights protection.”

Click here to view the full submission.