Uncorrected Evidence 150

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Oral Evidence

Taken before the Joint Committee on Human Rights

on Monday 10 March 2008

Members present:

Mr Andrew Dismore, in the Chair

Bowness, L.

Dubs, L.

Onslow, E.

Stern, B.

John Austin

________________

Witnesses: Mr Kenny MacAskill, a Member of the Scottish Parliament, Cabinet Secretary for Justice, Mr Brian Peddie and Mr Paul Cackette, Civil and International Justice Directorate, Scottish Government, examined.

Q286 Chairman: We will now start our formal evidence session on our inquiry into the British Bill of Rights. We are joined by Kenny MacAskill, who is the Cabinet Secretary for Justice in the Scottish Government. Mr MacAskill, do you want to introduce your colleagues?

Mr MacAskill: I have Brian Peddie and Paul Cackette from our Civil and International Justice Directorate here to assist me.

Q287 Chairman: Thank you. Do you want to make any opening remarks?

Mr MacAskill: No. I am happy simply to take any questions that you may have.

Chairman: Thank you. Baroness Stern wants to make a declaration of interest.

Baroness Stern: Before the session starts could I declare that I am the Convenor of the Scottish Consortium on Crime and Criminal Justice and I am a Member of the Scottish Government's Advisory Body on Offender Management.

Q288 Chairman: Perhaps I could start, Mr MacAskill, by asking you about the fact that it seems that in the Green Paper from the Government, Governance of Britain, there is no mention of devolution. It seems to be pretty well missing. To what extent has the Scottish Government been involved with the UK Government in discussions on a British Bill of Rights and Responsibilities?

Mr MacAskill: Not really a great deal at all and I think the fact that devolution is not mentioned is perhaps an indicator of that. Our general perception is that it has started from a premise that is not one upon which our legal system is constructed and has reached a juncture that we have since moved on from, and that in that first of all a great deal of assumptions were made. Indeed, I read Henry Porter's evidence to your committee in The Observer yesterday and, as with many matters that I have read, it concentrates on the Magna Carta and the Act of 1689. None of these matters is of any great relevance to Scotland. We have a distinctive legal system that predates the Act of Union. Secondly, it does not seem to take into account the current situation that we have with devolution, and on that basis, whilst we are happy to assist, the position seems to be that it has come from a juncture that is not particularly relevant to our legal system and has reached a point from which we have since departed and indeed are now accelerating from at some particular pace as there seems to be general acceptance across the political world now that devolution has to move on. It is simply the final destination that is in dispute.

Q289 Chairman: So do you think a Bill of Rights is needed? Do you welcome the debate about it?

Mr MacAskill: In terms of a Bill of Rights, any debate that helps promote human rights and keep them in the public eye is welcome. That is clearly helpful in a democracy. In terms of a British Bill of Rights, do we see it as necessary? No. I adopt many of the legal points that were made by the Law Society of Scotland who will give evidence hereafter, and to some extent I think some of their matter is predicated upon a scepticism in relation to why here in the Scottish Parliament we have the Human Rights Act and ECHR incorporated into our founding principles and these are dealt with by our courts and we are subject to challenge not simply on what we seek to legislate upon but also what we have legislated upon. We are happy with that and as a Government party we seek to expand upon that if and when the constitutional settlement changes. The other aspect as well as the legal basis is simply the concept of Britishness. It seems to us that we are constituent part of the United Kingdom of Great Britain and Northern Ireland. Within that jurisdiction there are different political entities and that is why, as I say, I think the current premise is predicated on pre-1999 matters. Our political sovereignty is referred to in that and is a matter that will be discussed. Equally, the 1707 Union of the Crowns protected Scotland's distinctive education, church and legal systems. Our legal system, whilst there has been a great deal of fusion and interaction with the system south of the border because of legislation at a UK level, is still predicated in a different manner and it is still run in a different way, so for those two matters, whilst any discussion is to be welcomed because anything that promotes the concept of human rights should be supported, it does appear to us almost to predicate the question, "Why? Where would it fit in with us?", and, given that we do not see this concept of a British identity as such, it lacks relevance.

Q290 Baroness Stern: I think you have started to answer this but I am going to see if I can perhaps draw you out a bit more. In your view to what extent is a debate on a British - and I am emphasising "British" - Bill of Rights relevant to the people of Scotland, and, in view of what you have just said, perhaps you could explain why you feel it is not relevant or in what form it is not relevant to the people of Scotland.

Mr MacAskill: I think first of all the whole concept of Britishness has to be discussed. It is de rigueur; certainly it would seem to be from 10 Downing Street, but I myself and I think we as a Government party perceive ourselves as citizens or subjects of the United Kingdom but our nationality is Scottish. What is meant by Britishness? Is there a concept of Britishness? Yes, just as there is a concept of being Scandinavian. We eat fish and chips, we eat chicken masala, we watch East Enders. Are we British? No, we are not. We consider ourselves Scottish and we consider those south of the border to be English. That is perfectly legitimate. Robbie Burns is Scottish, not British. William Shakespeare is English, not British, and we should respect the different jurisdictions and the different identities that live in this very devolved world, and therefore we see the concept of Britishness as rather arbitrary, that it was founded for an empire and to some extent has begun to fragment. It was indeed forged in two world wars but it began to fragment and fray at the edges, it could be argued, as soon as conscription and national service ceased. As people now grow up they see themselves, correctly, as English south of the border, Scots north of the border, Northern Irish or whatever, so the concept of Britishness is something that we really do not buy into. Indeed, we wish to preserve our own integrity, certainly in legal matters, which, as I say, were specifically protected in the Act of Union, so the Britishness we do not see any relevance to. From a Scottish perspective, ultimately in an independent Scotland a Bill of Rights seems to us to be sensible but, given that our founding principles in the Scotland Act incorporate ECHR, we have some scepticism about what could be added by a British Bill of Rights to what we already have, incorporated through ECHR, apart from our pronouncement of the principles that exist there. Indeed, as per the Law Society of Scotland's submission in writing which I have seen, there are difficulties that may be compounded by having these matters layered onto what already is within our system.

Q291 Earl of Onslow: May I interrupt here? It is a matter of historical record that the concept of Britishness was invented by a Scots King, not by the English. Secondly, you say that there is possibly no relevance to Scotland in a British Bill of Rights, but there is legislation passed by the Westminster Government which in my view has a major impact on the rights and liberties not only of the English but also of the Scots in the forms of the databases which are built up in, for example, the Regulation of Investigatory Powers Act, the concept of national identity cards, public order acts, the Race Relations Act and terror laws. All of those are acts which apply just as much to Scotland as they do to England or Northern Ireland. Under those circumstances you do not think that there is an overarching United Kingdom, if you do not like the Scottish word "British"? You see that it is irrelevant to Scotland, do you, that the Westminster Parliament can pass these Acts and you do not see any need for a Bill of Rights which would protect your liberties as much as I hope it would protect mine?

Mr MacAskill: Perhaps you can tell me how this Bill of Rights is going to protect them. If, as seems to be suggested, it is not going to be legally enforceable in any way, then what is the relevance of it?

Q292 Earl of Onslow: It would be legally enforceable in exactly the same way as the Human Rights Act is. In Scotland it could be enforced because the devolution Act comes from Westminster; Westminster enacted certain powers, so therefore, presumably, the actions of the Scottish Government become subject to the ECHR, which is justiciable. It is justiciable in England in the very elegant way which Derry Irvine introduced. He said that this Act was wrong, and then there was a fast-track way of appealing. It cannot overturn an Act of a sovereign Westminster Parliament but it can point out the error of its ways. There is a very elegant way of doing it. That is surely how it should work. There is a precedent for it.

Mr MacAskill: But that goes back to the fundamental difference in perception about how matters should exist. North of the border we have always believed in the sovereignty of the people and that was encapsulated by Lord Cooper many years ago in a legal judgment. It clearly says that south of the border there is the acceptance that Parliament is sovereign and therefore there is a fundamental schism between us. The points you made regarding national identity cards and other things of course are relevant here and we as a Government are having to seek to take steps to make sure that we mitigate what we believe is something that has potentially great dangers for our people as well as huge cost implications, so there are obviously matters where there is a clear interaction. As I say, however, to some extent it goes back to the position that we come from a different direction. We are almost operating in a parallel universe. The matters that seem to be pursued south of the border as being sacrosanct, such as the Magna Carta in 1689, are not relevant here, so are there instances -----

Q293 Earl of Onslow: Does habeas corpus not apply here?

Mr MacAskill: We have different ways of dealing with that. We no longer have the 110-day rule. We have extended it but the principle of being brought to court at the earliest possible juncture applies.

Q294 Earl of Onslow: That was not the question I asked. Does the act of habeas corpus apply in Scotland?

Mr MacAskill: In my understanding, no.

Q295 Earl of Onslow: It does not?

Mr MacAskill: No. It has nothing to do with us.

Q296 Lord Dubs: May I go back to something you said earlier? You said that you did not have a need for a Bill of Rights because you felt ECHR and other things were sufficient, but that would apply in England as well, would it not?

Mr MacAskill: As I say, you come from a different legal jurisdiction. It is vastly different. I can see an argument south of the border because Magna Carta is vastly different from how we have always proceeded in our criminal jurisdiction. That is not to say that we are arguing that our system is perfect. There are matters that we clearly seek to amend and protect but, as I say, our systems have started at different positions and therefore I can see an argument for those south of the border, but north of the border we are bound by ECHR. That is within our founding principles. Sometimes it has worked to our benefit. Sometimes as a Government, as we have seen in a variety of matters, including slopping out payments to prisoners, it has worked contrary to what we had anticipated and indeed has caused some angst. Therefore, we have always felt that our position is regulated. We cannot legislate for matters that are contrary to ECHR. If we as a Government breach it then our people have access to the courts and that seems to us to be fundamentally a good thing.

Q297 Lord Dubs: Can I just add though that it seems to me that it is the same position in England as well as regards ECHR. On the other matters, the different legal systems and so on, of course I accept that, but as regards ECHR we are bound in England in the same way that you have said you are bound by it.

Mr MacAskill: That is a good thing.

Q298 Lord Dubs: So the argument that you are using could also apply in England, although you are not seeking to do that?

Mr MacAskill: I think what is fundamentally different is the perception of parliamentary sovereignty versus sovereignty of the people. That is one of the fundamental differences north and south of the border.

Chairman: The difference also is that the courts here can strike down Scottish Parliament legislation, whereas they cannot in England.

Q299 Baroness Stern: My next question is going to draw out a bit more something we have already started talking about. You may have seen that Professor Alan Miller has suggested that there is a "distinctive Scottish perspective on rights and sovereignty". If I could just tell you what he says, "The essence of this perspective ... is that an individual's rights are essentially seen as a 'right to personality'. It views the individual's personality, rights and duties being dependent not upon the grant of the state but upon the enjoyment of such rights by the community as a whole within which the individual interacts". I wonder if you would like to comment on that and perhaps explain to us how that Scottish approach, if you accept it, impacts on the Bill of Rights debate.

Mr MacAskill: I think that shows the fundamental difference. That is the position I would accept, the position encapsulated by Lord Cooper decades ago, and I think the fundamental difference relates to the problems caused by the argument south of the border that exists about the sovereignty of Parliament. At the end of the day that is a fundamental schism, which is why the Bill of Rights would not necessarily, it could be argued, provide the same protection south of the border as it would here in terms of the perception as to who is ultimately sovereign: is it the people or is it Parliament?

Q300 Baroness Stern: What are the implications of the people being sovereign rather than Parliament?

Mr MacAskill: I think that simply gives recourse to individuals to have far more rights. You cannot have democracy resulting in almost a democratic dictatorship. There can be times when Parliament does get it wrong. There can be times when Parliament is out of kilter with the will of the people and it seems to me that this provides some checks and balances. It is the same in any democracy. We have the separation of powers. At the end of the day there have to be some instances where Parliament can be seeking to go against the fundamental will, value and ethos of what is perceived as that of the people and they should be protected from it.

Q301 Chairman: But how is the will of the people established if it is not through the representative democracy of the Parliament?

Mr MacAskill: These are matters that ultimately have to be tested in court, and you have no guarantee that ultimately you can protect it against these things, but ultimately the right of the people to be able to say that they think Parliament has got it wrong and that the fundamental ethos and will of the country is perhaps different in values or whatever else is where it comes from as opposed to being able or willing to legislate willy-nilly.

Q302 Chairman: But the will of the people in those circumstances is ultimately expressed by a judge. It is his interpretation what the will of the people may be, which presumably is quite a subjective assessment.

Mr MacAskill: That is true, but that applies in the Bill of Rights if you make it legally enforceable. It is always going to be subject to the will of a judge deciding. In whatever jurisdiction in which we have a Bill of Rights ultimately these matters do go to the courts, but, given that they are perceived as independent, that they are part of the separation of powers, legislator, executive and judiciary, it does seem to provide some final arbiter as opposed to the arbiter being those who can simply rack up the numbers and vote something through.

Q303 Earl of Onslow: Surely the doctrine of the supremacy of Parliament still holds good in Scotland because the Act of devolution is an act of a sovereign Parliament. In 1707 the Scottish Parliament decided to subsume itself into the Parliament of the United Kingdom, thus establishing the supremacy of Parliament, I would suggest, over the whole of Great Britain. The United Kingdom and Ireland were still different. Once that happened Parliament was sovereign, and until or if Scotland becomes independent - and it is up to you what you do - it is Parliament that is still sovereign because the Act of devolution is an act of a sovereign Parliament which theoretically could be repealed.

Mr MacAskill: No. I think our perception and take on history is that we adjourned our Parliament for a variety of reasons. We extracted concessions such as the integrity of our church, law and education systems, which have served us well, and indeed that was why, when this institution reconvened in 1999, my colleague Winnie Ewing then said that the Parliament adjourned in 1707 had reconvened. We ceded various matters for a variety of reasons and debate has waxed and waned, certainly over recent years with 2007 being the 300^th anniversary, but this idea that we gave up everything to be subsumed within Westminster is something that we would disagree with.

Q304 Earl of Onslow: Yes, but Westminster could still theoretically repeal the Act of devolution.

Mr MacAskill: Absolutely. Power devolved is power retained but at the end of the day -----

Earl of Onslow: You have made my point for me, absolutely made my point. We have now established that the Parliament in Westminster still is supreme in Scotland, and you have accepted that by saying -----

Baroness Stern: No.

Lord Dubs: No.

Q305 Earl of Onslow: Yes, by saying that the Act of devolution could theoretically be repealed.

Mr MacAskill: I accept the premise that the Act of devolution could be repealed because that is a creature of statute. There are further fundamental matters though that were preserved by the Treaty of Union which we see as capable of litigation and challenge. It turns upon the rights of Scotland to protect and preserve its integrity and its legal, judicial and religious freedoms.

Q306 Lord Bowness: Chairman, I may be the only person round this table who is not familiar with Lord Cooper's judgment distinguishing between sovereignty of the people and sovereignty of the Parliament. I think it would be very useful, bearing in mind that we are talking about the Bill of Rights, not devolution, if the Justice Secretary or his staff could let us have that reference or a note about it because I think it is very relevant to the discussion.

Mr MacAskill: I am sure we can. I have to say it is - I am trying to remember how long ago - 38 years or something since I did my law degree and whether what little I knew I have long since forgotten, but we can happily provide it to you and I am sure the subsequent witness from the Law Society will be able to give you much more information on it than I, but it is something that runs deep in Scotland and something that not simply ourselves as a nationalist party but also others have sought to adhere to.

Chairman: He has had notice of the questions but he has got a very fat law book with him so hopefully when he comes to give evidence he will be able to tell us.

Q307 Baroness Stern: I think Lord Onslow mentioned ID cards, and I know there are one or two other matters on which the Scottish Government is subject to matters decided in Westminster, such as the actions of the British Transport Police or the Glasgow Station stopping certain people, so there are matters on which you have views which you might feel have a human rights implication, but there is not a lot you can do about them. I just wondered if you felt from that perspective that a discussion of a British Bill of Rights was helpful or relevant.

Mr MacAskill: This goes back to raising the question of rights and responsibilities and whilst I am persuaded by the argument that putting responsibilities in is actually probably a step too far, it is a consequent corollary to the question of rights. I think all of these things add to the general debate. We live in a fast-changing society in troubled times, and the points you make, whether about section 44, stop and search, or the cost and implications of ID cards, they are all matters that cause us concern here and over which we have limited room for manoeuvre but we do feel required to speak out as a Government on behalf of the people we represent.

Q308 Earl of Onslow: What would you like to see in a British Bill of Rights, if there were one? Should the object of a British Bill of Rights be to build on the ECHR or "ECHR plus", or to give the UK greater leeway than it currently enjoys under the ECHR, ie, "ECHR minus"?

Mr MacAskill: Our view is first of all predicated on the fact that we do not see the necessity or relevance for it. That said, if there is to be one then it does seem to us that the ECHR encapsulates fundamental values. Whatever criticism we have had, and we have had criticism as a Government on matters that have happened, such as slopping out, these are judgments; they do not relate to the fundamental values that are contained within it, so we would certainly not wish to see anything of "ECHR minus". That would seem to us to be a retrograde step going against fundamental matters that, frankly, are universal, and although the American Declaration of Independence in its Bill of Rights was a model of its time, as indeed was James, depending which category you give him in terms of your concept of Britishness, it does seem to us that ECHR is something that should be retained. Is it foolproof? No. There are probably good reasons why some things could perhaps be added to it, so it does seem to us that if you are going to have something then it should be ECHR plus anything that may be viewed as perhaps appropriate. What that may be I am open to persuasion about and I think you view it as the minimum, not the maximum, but you certainly do not seek to move away from what are, as far as we can see, fundamental universal values that should be protected either side of the border, and indeed in any other jurisdiction anywhere in the world.

Q309 Earl of Onslow: If you are me you get frightened by what the Government has done. You think that the object of a Bill of Rights should be "ECHR plus quite a lot". I became converted to the ECHR because I thought that the House of Commons was not doing what it should do in protecting British citizens, subjects of the Crown, call them whatever you will, from the actions of an over-mighty executive. That for me is the argument for "ECHR plus". You would not agree with that?

Mr MacAskill: No, I have a great deal of sympathy with that. I have forgotten the name of the journalist/author that wrote about the centralisation of powers, how things operate south of the border where you do not have proportional representation and where you can have the situation of a government with a very limited mandate, and we north of the border are conscious that the Tory Party got the largest number of votes in the last general election south of the border. These things are matters that we remember, though not necessarily with the same pain as some might south of the border but we note these things. These matters are there to be built upon and certainly I do accept that an executive in a situation like that can do things that are fundamentally wrong. After all, we as a Government are conscious that we have been taken into a war that was not sanctioned by the United Nations and that we ourselves did not have a real opportunity to comment on and in which many of our young men continue to tragically die in a situation where we want to get them out as quickly as possible.

Q310 Earl of Onslow: If there were to be a Bill of Rights, and I can see you do not feel there is the necessity to have one, do you think socio-economic rights should be included?

Mr MacAskill: I am open to persuasion. I think it is very difficult to quantify socio-economic rights. How do we define them? There is the right to work and so on, but once you start getting much more into socio-economic rights then poverty is a relative concept. What is viewed as fundamental to quality of life in 2008 is not necessarily what will be perceived as fundamental to quality of life or a necessity in 2018, so I think some reflection of socio-economic rights has merit. As to whether it can be encapsulated beyond what are the fundamental matters contained within ECHR or some other matters, I remain to be convinced, but the concept that socio-economic rights are pivotal to an individual is something that we would subscribe to. If you are poor in this country and you are on unemployment benefit or social security benefits and you are in a council house where your rent is paid directly by the state then your ability to act is limited. You cannot withdraw your labour, you cannot withhold your rent, so if you object to the economic situation you are in difficulties. If you object to the quality of house you live in and the dampness you cannot do what the rest of us would do and seek redress. These things, as I say, have to be reflected, that socio-economic matters do impact upon your individual rights as a citizen. How you reflect that in a Bill of Rights I am not sure because it becomes very difficult when, as I say, these matters do ebb and flow. It might be best simply to leave them as matters that should be taken into account by courts in pursuing these matters and be borne in mind by governments. As I say, I am open to persuasion but I find it difficult to see how you can encapsulate some of these things in what would be an additional matter to ECHR.

Q311 Earl of Onslow: That could be a Tory hereditary peer speaking on that, not a Scottish Nationalist Minister, so on some things we do obviously see eye to eye.

Mr MacAskill: Absolutely!

Q312 Earl of Onslow: How do you answer the question, when we were discussing this among ourselves last night, from our legal adviser, who said to me, "How do you allow that there should be an asylum seeker who has his benefit taken away from him and is forbidden to work? Are his socio-economic rights not being abused under that process?".

Mr MacAskill: I would have thought that the argument for that is to recognise that, whilst they might not have the same rights as a citizen or subject in the passport they carry, everybody has some fundamental human rights on dignity and treatment and, frankly, we are not happy in this Government to comment further on points made by Baroness Stern about how asylum seekers are being treated in this country and it is a matter that we will be raising, whether with the BIA or with others, so I see where you are coming from on that. I do tend to think these things should be capable of being dealt with by what should be fundamental matters within the Bill of Rights, whether it is ECHR without being specified, because that is not simply about financial rights; that is about treating people with dignity and compassion, because in this country we recall that not only are we a nation of immigrants; we are also a nation of emigrants, and wherever we went in the world we were almost uniformly treated with dignity, compassion and respect, whether we were cleared off our lands or went because we were economic migrants, and therefore, whilst there has to be an immigration policy in any society and at times it does have to be enforced, we do think that fundamentally you have to do so with compassion and with some cognisance of how we were treated and how we are still treated.

Q313 Chairman: I do not think any of us would disagree with that, and our report on this last year came to that conclusion, but, for example, could we have a right written into the Bill of Rights which would say that nobody should be subjected to destitution, nothing to eat, nowhere to live, as a bottom line, so that if a Government, north or south of the border or anywhere else, were to pass a law through the Parliament saying, "Asylum seekers shall have no money and no food", that could either be struck down or be subject to a certificate of incompatibility, depending which system we work through, because that would infringe that basic fundamental right?

Mr MacAskill: I have to say I have a great deal of sympathy with that.

Q314 Earl of Onslow: What about environmental and third generation rights?

Mr MacAskill: Again, I think it comes back to the comments made on social and economic matters. I am open to persuasion. As the Chairman has said about destitution, that seems to me to have a great deal of logic to it. Environmental rights - again, these are matters where we need to see how they are going to be specified. We have a current situation where, for example, south of the border there is a desire by some to build more nuclear power stations and we north of the border have a clear desire that we want no more new nuclear power stations, and what might be seen as enforcing environmental rights in one jurisdiction is seen as damaging fundamental environmental rights in another. As I say, these things in the abstract, in the round, sometimes sound quite engaging and endearing but there are significant difficulties here, so it is back to the previous matter, that we remain to be persuaded, that it cannot simply be dealt with within the fundamental matters that are contained within the ECHR but we are open to persuasion.

Q315 Earl of Onslow: Especially as there is a very strong pro-environmental argument for building nuclear power stations, and so if they were included a judge could say, "Actually, nuclear power stations are very much better for the environment than are coal or oil-fired power stations", if you accept the premise that CO₂ is the great danger to climate warming.

Mr MacAskill: Although, having read Henry Porter's piece, I also read another piece in The Observer about the demise of humanity and the human race and how, 400,000 years down the line or whenever it was, we were about to be obliterated by the sun. The consequences and problems created by nuclear waste still remained long after we had disappeared off this planet.

Q316 Earl of Onslow: I am not saying which is right. I am just saying there is an arguable case where, in a Bill of Rights with environmental possibilities, somebody could go to the Scottish Government and say, "O, Scottish Government, stop polluting the countryside with great CO₂ burning gas stations", or ruining the sea lochs with tidal races, or whatever they are called, "and build nuclear power stations because they are environmentally much more friendly". It would then be down to a judge to decide which was which, whereas in my view that is absolutely down to a democratically elected government. Whether you are right or wrong on nuclear power stations from the point of my argument is totally irrelevant.

Mr MacAskill: I think we tend to agree with you on that. As I say, these are matters which fundamentally come down to political judgments, whether it is nuclear power or whether it is on-shore wind with the difficulties we get in some communities over the size of developments, and we are a Government that is supportive of wind developments but they have to take cognisance of the environment and the beauty of the area in which we live, so yes, I think these matters are fundamentally matters that should be decided by the Government because they are not necessarily the inalienable rights that were initially encapsulated in the American declaration.

Q317 Chairman: Can I try another environmental one on you which might be a more interesting one to try? Supposing somebody wanted to set up a commercial fish farm, non-organic, somewhere up in the Highlands, or wherever they do these things, and the local planning committee decided, - and I am not sure how planning works but whatever the local planning authority says - "Okay, this is important for our local economy. It is going to create a lot of jobs. We think this is a good idea despite the environmental impact on the local sea", or loch or whatever. There is no right of appeal against the grant of planning consent but it would have a significant environmental impact. If you had, for example, environmental rights would it provide a way of having that decision reviewed in the context of its impact on the environment at the instance of the local community disagreeing, for example?

Mr MacAskill: I think you are right. That is why, as I say, we are sceptics about the Bill. We do not necessarily rule it out but you would have to persuade us. As I say, we currently have these matters in Scotland going on in similar debates relating to planning legislation, which is, I think, accepted by many as not necessarily going quickly enough, especially for matters of national infrastructure where a clear decision has to be made for the national good, whether it is a road or some other matter, so you can go from a very small-scale development to a much larger development, and there are difficulties there. That is why, as I say, there are fundamental problems because somebody's fish farm in some areas that is seen as commercially beneficial could equally be seen downstream as having consequential problems with diseases or whatever else may go with them. These matters do take place on a regular basis, a fish farm basis (usually it is problems with the Crown Estates), up to the larger examples mentioned by the Earl of Onslow in terms of nuclear power and wind energy. That is why I think in these matters public perception changes, attitudes change, science and technology change. Some things, about not being tortured, about having fundamental rights, always remain, it seems to me, fundamental and universal.

Q318 Earl of Onslow: If there were to be this Bill of Rights what should the relationship between private individuals or bodies be to that Bill of Rights?

Mr MacAskill: It seems to us that the Bill of Rights should be there for every individual. This is back to the recourse that individuals should have to exercise their rights subject to available constraints.

Earl of Onslow: I think what we are getting at is that we had a situation in England about how the ECHR applied to old people paid for by the local authority in privately run nursing homes, and the House of Lords, in its Appellate Committee existence, decided that it did not apply. I think that is a slightly illogical argument and so does Brenda Hale, but that is neither near nor there, but in other words it could force the Scottish Parliament, when it runs its old people's homes, to see that the ECHR applies -----

Q319 Chairman: We are talking about the YL case and I think you are legislating north of the border to deal with it and we are looking at ways of dealing with it as well. The issue really is that the problem arises because the Human Rights Act is not directly enforceable against private bodies.

Mr MacAskill: I can understand the logic of the argument, that though public sector provisions are passed out to private sector or arm's length agencies clearly there is a difficulty in enforcing some rights. I am not necessarily convinced that the Bill of Rights is the best way to deliver that. It seems to me that these are matters that should be delivered by the state, whether or not it is the state that does it or contracts its rights or whatever. It seems to me that it is better to seek to be able to enforce your rights against the state as a citizen as opposed to having tangential litigation, so, whilst I do not necessarily rule it out, it does seem to me that it becomes much more complex and also undermines the whole ethos that this is your right as a citizen of the state that you are seeking to enforce a contractual obligation that should be enforced by the Government, and therefore I think I am much more comfortable with the concept that the Government should be more open in terms of their relationship to the contracts, that the agents should enforce them better, but it does seem to me that these matters are maybe better dealt with by the individual against the state with the state delivering its obligations, whether it has done so itself or has sought to do so through a third party.

Q320 Chairman: If somebody decides to be a private funder and just pay for their own care in a particular care home, at which there may be people who are paid for by the state as well, but that is their choice, they would, as things stand, have less protection than that provided by the contracted-out service or whatever.

Mr MacAskill: I think that is where the Government has to seek to ensure proper and adequate regulation, and that might be the better way to do it rather than having a further bean feast for litigation in our courts. It is better to regulate and enforce than having people always seeking to have recourse.

Q321 Earl of Onslow: This is you now arguing, with respect, for "ECHR minus" slightly, is it not?

Mr MacAskill: No, I do not think so. I think fundamentally it is your right as a citizen; it is your relationship with the state. How the state seeks to deliver and what method it seeks to use is for them to decide, but if you fail to get those rights, if the state has failed to deliver, you should seek to enforce it against the state and the state should seek to regulate it or indeed make sure that whatever is done is done better, but I think it is better by enforcing it against the state than going tangentially. I do not think that is "ECHR minus"; that is simply ECHR and it is having the Government stand up and deliver its responsibilities.

Q322 Earl of Onslow: But you are asking the Government to do it, quite rightly so. We then get the YL case, which says that government paid-for people in private nursing homes are not subject. That is rectified by making them subject. You then have people who are not in receipt of means-tested benefits and who have to pay for their own care in the same care home not being able to take advantage of rights that people who are paid for by the Government in relation to breaches of human rights by that care home should they arise. As I understand it, and I may be wrong here, you are saying that this should be done by general standards and you should be able to enforce them without access to the ECHR. Those would, of course, be allowable to anybody. I agree with you, by the way. I tend to think that it is better that you should do it that way round, but again I find that it is a very useful tool to lever up standards with as well. I can see both sides of this question. It seemed to me - and I know I got shouted down by all my colleagues and by you for saying it - that you were slightly arguing for "ECHR minus".

Mr MacAskill: No, not at all. I just fundamentally think that the whole concept of a Bill of Rights is your right as a citizen against the state, and where the state seeks to deal with matters that should be a fundamental right by contracting out then I do think that you should still seek to enforce your rights against the state and it is for the state to deliver. We come from the fundamental ethos that there is such a thing as society. The direction of travel that seems to be delivering in a Keith Joseph-like situation, where the Government meets up once a year to contract out services and you are then left as an individual to enforce it, is something that we do not subscribe to, and therefore I think it is up to the state to ensure that its citizens' rights are protected. If they are not then it should be for the citizen to seek to take issue with the state; otherwise, as I say, not only do we have to have recourse to litigation between, arguably, third parties; it also allows the Government in some instances to evade its responsibilities by passing matters and the buck on to others. It also undermines people's rights because it is those who are in the know who have access to funds, courts, legal advice or whatever, as opposed to, as I say, the Bill of Rights being a fundamental check against Government. I would hope that Government would seek to deliver these rights. It is only when they do not that you pursue them and that is where the Bill of Rights is the safety valve. This idea that you have rights and it is really up to you to enforce them and it is up to you to chase third parties who have not done this or do not do that does not seem to me to be correct. That is the job of the state because we are a society.

Q323 Chairman: But we do live in an age of globalisation, big multinational companies. You could envisage a situation perhaps where a big multinational company wanted to build a big plant or something and the Government did not want to take them off. It is potentially polluting or environmentally hazardous or whatever and the Government says, "We are not going to deal with this. We think this is a good thing, fine". It is a big multinational company, probably bigger than some countries in its national turnover. Should the individual be able to bring an action against that company?

Mr MacAskill: That comes back to the earlier concept that if the Government is acting contrary to the will of the people in all these matters then we believe that they should be challenged. You are right to say that in a world of globalisation there are difficulties. That is though why we accept that there has to be co-operation by governments, large or small, whether it is on a pan-UK basis or whether it is on a pan-European or indeed a much wider global basis. These matters we would hope would be dealt with by the Government. If the Government seeks in some arbitrary way to flout the fundamental right that people should have recourse against them, the way of delivering it is to challenge the Government, I believe, because otherwise the Government flouts and abdicates its responsibility, which is to look after the rights of its citizens, and it seeks to pass the buck to those who can acquire or obtain legal advice and recourse.

Q324 Chairman: So ultimately it all comes down to regulation by the Government?

Mr MacAskill: Not everything comes down to regulation by the Government but it does seem to me that it is much better that you enforce your rights against the Government and the Government resolves matters. They have the clout and the machinery and while, understandably in a globalised world and for a more productive economy, many matters are dealt with by the private sector or arm's length agencies, our view is that you should it enforce it against the state and the state should enforce your rights. That is the whole concept of why we go to court. Your go to court and you argue in the court and it is the court that enforces your rights. They may pass it back to you and you then go to the bailiffs or the sheriff's officers but fundamentally the court enforces your rights as an individual and it seems to us that in the concept of a Bill of Rights you go to the state and the state recognises that something has happened and seeks to deliver for you.

Q325 Earl of Onslow: Do you think, if we were to have this Bill of Rights, it should be rights and responsibilities, that it should in turn impose responsibilities on the citizen?

Mr MacAskill: I think that argument is well intentioned because I have certainly argued publicly that responsibilities are the corollary to rights. Citizens do have rights but they equally have responsibilities. I do tend to think though that what we are talking about here is a Bill of Rights. Once we get into responsibilities it is very difficult to quantify and encapsulate responsibilities in matters that do not become almost dictatorial. I did read the arguments about how the former Soviet Union did seem to encapsulate this and that seems to me to be one good reason for not so doing. As I say, I can understand on the face of it the logical arguments for it. I do tend to think though that it is far too problematic and it is much better dealt with by reminding citizens that they have responsibilities and that they breach those duties if they flout other laws, but fundamentally what we are talking about is a Bill of Rights that is about rights.

Q326 Earl of Onslow: I must admit again you sound like a Tory hereditary peer. It seems to me that citizens only have one responsibility and that is to obey the law, and if they do not want to do that they get slotted by the law. That is the only responsibility that a citizen has.

Mr MacAskill: I tend to think that we are not encapsulating simply what might be put forward by -----

Q327 Earl of Onslow: I mean legally, not socially or economically.

Mr MacAskill: I think the position you are coming from is the position that this Government takes as its fundamental. We are a social democratic party in the tradition of north European nations, whether they are Scandinavia or the Netherlands. I think you will find there that they have rights and the responsibilities are viewed as being consequent upon the citizens but they are not encapsulated in any formal legal bill of rights. As I say, as a social democratic party we believe that we have to protect people's rights. If that in many instances overlies with Conservatism, that is fine by us, we are relaxed about it, but, as I say, we are a social democratic party and it is from that ethos that we come.

Q328 Lord Bowness: Can I go back to this question of the ability of the courts in Scotland to strike down acts of the Scottish Parliament, and we have already highlighted the difference in that situation from that which prevails throughout the United Kingdom Parliament? Can you perhaps tell us what have been the practical effects of that power?

Mr MacAskill: I think it has been good discipline. The Lord Advocate indeed has statutory responsibilities within the Scotland Act to make sure that the Government does not seek to proceed in matters that are either ultra vires in our constitutional powers or otherwise. I think it is a good and salutary reminder to Government not to proceed in ways that would either be illegal or politically embarrassing and therefore matters are dealt with that way. That is not to say that there have not been judgments, for instance, in the slopping out case, that have caused some angst but, as I say, we recognise the legitimacy of the courts and we accept it and are simply seeking to follow on. I think it is a good discipline for government.

Q329 Chairman: Can you tell us how many times the courts have struck down Scottish Parliament legislation?

Mr MacAskill: Never. There was one challenge which related to our banning order of fox hunting, I understand, and that was dismissed but, apart from that, I think the discipline has always been dealt with there and it has been enforcing other rights such as, I say, the slopping out matter.

Earl of Onslow: Has the ban on fox hunting in Scotland had the same effect as it has had on England, which was to increase the number of hunts and the number of foxes killed?

Q330 Chairman: That is nothing to do with this.

Mr MacAskill: I have to say, as somebody whose grandparents were crofting, we forget that there was never a hunt north of the Tay, which is a substantial amount of our land mass, and therefore the short answer is, I do not know, but I do think Scotland is a better place.

Earl of Onslow: I meant it with a slight element of flippancy.

Q331 Lord Bowness: Just going back to the question of striking down, and I understand your reservations about there being a British Bill of Rights, would you foresee problems in extending the right to strike down across the whole of the United Kingdom in the event of that coming about?

Mr MacAskill: The problem obviously is the sovereignty of Parliament, so it is the different routes that our legal systems have travelled upon. Is it a good thing that Parliament can be struck down? Yes, I think it is. I think at the end of the day you cannot have a parliament that acts arbitrarily and wrongly, and that should be subject to challenge within the courts.

Q332 Lord Bowness: We have talked about the possibility of economic and social rights being included in any Bill of Rights, and no doubt we all have opinions about whether that would be a good thing or a bad thing, but if it was there, with particular reference to the devolution settlement, some of those economic and social rights will almost inevitably touch on matters which are currently devolved to the Scottish Parliament, and education is highlighted as an example. Does it worry you that a UK Bill of Rights with economic and social rights might lead to a situation where in fact the United Kingdom Government was given an entr�e into matters which are devolved?

Mr MacAskill: To some extent that situation already exists and that is part of why the devolution settlement has not really been resolved and we are having to move forward because there is a whole array of matters. As the Justice Secretary I am in charge of criminal justice in Scotland; I am not in charge of narcotics or firearms and I do not think there is a legal jurisdiction in the world in which serious and organised crime is not predicated upon narcotics and firearms. We have a significant problem on air weapons. We are precluded from being able to act. We wish to protect our young population from the carnage on our roads by reducing the drink/driving limit and we are precluded from doing that, so there is a whole variety of areas where we are currently precluded, but if the concept was to add value to the totality of our citizens then clearly it would be a good thing. As I say, it goes back to the earlier points I made about social and economic rights in that the devil is in the detail. On paper it looks a very worthy thing to do, but being able to encapsulate it in snappy sentences is --- to be fair to the Americans, and I have been critical of America in many ways, the fundamental bill of rights that they came out with in the Declaration of Independence for the time it was written was clearly an extremely good and progressive document. It is not difficult to see that some areas had to be expanded upon because at that time the rights of people of different colour and the rights of women were not perceived as being rights at all, but the fundamental concept is as well written as any. As I say, I am open to persuasion about social and economic rights and if that can be done I think we would welcome it irrespective of whether it then caused problems for us as a jurisdiction. There are fundamental matters that run beyond the short-term advantages of a particular government of a particular political hue.

Mr Peddie: Can I add a point here in further amplification of the response? Obviously, the Cabinet Secretary has dealt with that issue. There are two points that arise in relation to what Lord Bowness has said but also in relation to something that was said earlier about the justiciable nature of the Bill of Rights were it to develop in that kind of way. I would just like to say two things for the record, one of which, as has been recognised earlier in discussion, is that the interaction between the Human Rights Act and the Scotland Act is different from the interaction as far as the rest of the UK is concerned. There is the vires test that has been referred to earlier, the issue of incompatibility which will not operate in quite the same kind of way, but also the ability of a United Kingdom Government by Order in Council to disapply the Human Rights Act in certain circumstances. If the model were to develop, standing points being made by the Cabinet Secretary, so that a Bill of Rights would be similar to the way ECHR operated, that might lead to a proposition that Acts of the Scottish Parliament would be ultra vires if they failed to comply with the Bill of Rights. That is not necessarily how it will develop but I just want to record the fact that what that would mean is that it would have an impact on the legislative competence of the Parliament in defining what is devolved competence.

Q333 Chairman: Can I try this out on you, which is on a similar theme? Under the Human Rights Act the Scottish higher courts can declare Westminster legislation applying in Scotland incompatible with ECHR, so if you have a British Bill of Rights which does not extend to Scotland but provides rights that go beyond ECHR, for example, the right not to be destitute, the thing we were explaining with asylum seekers earlier on, are you saying that those wider rights should not be relevant in Scottish courts even in relation to Westminster legislation, so, for example, it would be possible for English courts to declare incompatible Westminster legislation which makes asylum seekers destitute but not Scottish courts even though the legislation applies in Scotland?

Mr Cackette: That depends on whether the Bill of Rights is extended to reserved as opposed to devolved areas.

Q334 Chairman: That is the point I am making. Mr MacAskill was saying earlier he did not see the relevance of a Bill of Rights to Scotland. That is probably too simplistic a view of what he was expressing, but in that context?

Mr Cackette: That would be a consequence of that, I think.

Q335 John Austin: It is not necessarily the view that the British Bill of Rights has been irrelevant, but clearly the implication is that there are potential implications for Scotland, and in that context you are now engaged in a national conversation on the future constitution of Scotland. Does the British Bill of Rights feature in that in any way, and, if so, how?

Mr MacAskill: Tangentially, it may. Clearly our national conversation is more about engaging with people about what the constitutional settlement should be and we have noted that since we launched our national conversation it was to some extent criticised by other political parties, but they have since accepted that the status quo is not tenable and have persuaded themselves to go on their own commission. They are doing it by way of a commission. We are doing it by way of a national conversation. Will a Bill of Rights factor into that? To some extent it will but clearly what we are talking about is an evolving situation and it does seem to us that to some extent the Bill of Rights is predicated on a United Kingdom of Great Britain and Northern Ireland as at 1999. We are trying to get up to 2008 but the outcome of the national conversation, and indeed the commission, is that it is likely that the ground is moving under our feet. The constitutional situation is going to change and to some extent it already has. Within my lifetime of being a Member of this Parliament we had the devolution of railways. Powers are being devolved down, so will the Bill of Rights be discussed? In some shape or form it will because obviously part of the national conversation is the Scotland that we seek. I tend to think though that matters are more likely to be dealt with on fiscal powers, on emigration powers, on firearms and so on that perhaps impact with the body politick and with our people.

Q336 John Austin: How would you want to see the public, civil society, particularly hard-to-reach groups, involved in the formulation of a British Bill of Rights?

Mr MacAskill: I think we take the view that it is the responsibility of good government to look after even hard-to-reach groups, and at the end of the day it is up to us to try and encourage good citizens, not create model citizens, which is a very totalitarian ethos, but to promote and allow our people to be all they can be. Part of that is about understanding, about education, not simply in terms of the three Rs and these such things but encouraging people in civic democracies, civic participation. There is not one simple way but we do look at matters such as the Scandinavian democracies as things that we aspire to. That is the kind of thing the Scottish Commission for Human Rights could be asked to look at, to improve awareness. Professor Miller is a very knowledgeable and talented man and no doubt he will be considering these aspects now that he is in power but, as I say, I have been persuaded to some extent that a lot of these matters are not simply about enforcing rights. It is about education, it is about public broadcasting, it is about early intervention and encouraging literacy at an early juncture. That is one of the advantages in the Scandinavian democracies and it is one of the reasons why, when we have a declining turnout in many elections in the British, American and Australian models, they have managed to sustain substantial participation in democracy.

Q337 Chairman: Just following up that answer and the points you make about the Scottish Commission, in Northern Ireland they have been discussing their own Northern Ireland Bill of Rights for some time, years, in fact. Have you got any plans for a Scottish Bill of Rights?

Mr MacAskill: Ultimately, as a political party in an independent Scotland, as part of our constitution we would wish a Scottish Bill of Rights. It would be predicated upon the ECHR with a few additional matters and the logic that it is the minimum and it can be added to, so that is ultimately where we would like to get to, but that is a matter for our national conversation to some extent.

Q338 Chairman: Thank you. We have finished our questions. Is there anything you would like to add that we have not covered?

Mr MacAskill: No. Thank you very much for your time and your invitation.

Chairman: And thank you for yours.

Witnesses: Mr Michael Clancy OBE, Director of Law Reform, and Ms Christine O'Neill, Convenor, Constitutional Law Sub-committee, Law Society of Scotland, gave evidence.

Q339 Chairman: Could I welcome Michael Clancy, Director of Law Reform, and Christine O'Neill, Convenor, of the Constitutional Law Sub-committee at the Law Society of Scotland. Do either of you want to make an opening statement?

Mr Clancy: Only to welcome the committee to Edinburgh, Chairman. It is a great pleasure to have you here on this historic occasion as it is the first meeting of a UK Parliament committee in the Scottish Parliament. I congratulate you on making the trip.

Q340 Chairman: Thank you very much. We like to get out and about.

Mr Clancy: The more often you come here the better.

Q341 Chairman: Could I ask you whether you welcome the debate about a British Bill of Rights and whether you think a Bill of Rights is needed?

Mr Clancy: Yes, I think we do welcome the debate, the debate, of course, having started some years ago with one of the committee's membership, Mr Anthony Lester (as he then was) writing articles and making speeches in the 1960s. Of course we welcome these debates. The concept of human rights is a continually evolving one. It is one which develops as litigation expands and illuminates its various courses and we think that it is a good thing to have these issues debated. Do we agree with the idea of a Bill of Rights for Britain? That really depends, does it not? It depends on what the Government is going to consult upon in the not too distant future in terms of its proposed Green Paper on a Bill of Rights and Responsibilities. It depends on the way in which things are framed when eventually that comes to be, and I think that is where we stand at the moment.

Q342 Chairman: Is there a particular rights perspective in Scotland which needs to be reflected in the debate?

Mr Clancy: Sometimes it is not so much that there are particular rights in Scotland which need to be reflected. It is more that there are some rights which apply in England which do not apply in Scotland.

Q343 Earl of Onslow: Such as?

Mr Clancy: Such as the right to trial by jury, my Lord. I think it is important that whenever we are talking about the issue of a Bill of Rights for Britain we see this through the prism of the three jurisdictions which apply in the United Kingdom, through England and Wales, Scotland and Northern Ireland, because there is a risk that someone writing simply from the perspective of Scotland will take a different view from someone writing simply from the perspective of England and Wales, and I think that is an important feature. It is not so much, we would say, rights for Scotland which need to be reflected; it is that when we are coming to compose this Bill of Rights (if that happens) we should have a holistic view of the rights of citizens in this country.

Q344 Chairman: Mr MacAskill seemed to be making quite a big deal, rightly or wrongly, of the significant constitutional difficulties that would arise from a British Bill of Rights. I get the impression from what you are saying that you do not think they are insuperable difficulties but we have to look at the differences in the traditions, the structures and the constitutional arrangements. Do you think there are insuperable differences to producing a British, ie, for the United Kingdom as a whole, Bill of Rights, or is it simply a question of making sure that what is done reflects those different compartments, as it were?

Ms O'Neill: If we take it from a legal perspective I do not think there are insuperable difficulties but there are issues around the mechanics of a Bill of Rights which would have to be addressed by Parliament. One of those is that, of course, the Scottish Parliament, while it cannot presently amend the Human Rights Act, does have competence to legislate for human rights outside of that Act. If a Bill of Rights was passed by the Westminster Parliament and the Act incorporating that Bill of Rights was not in some way entrenched then the Scottish Parliament could repeal those parts of the Bill of Rights which fall within its devolved competence or it could legislate to derogate from the Bill of Rights in relation to these issues.

Q345 Earl of Onslow: Can I ask a question here solely to clear my own mind? The Scottish Parliament cannot repeal the Human Rights Act. It is responsible for human rights in Scotland and because it cannot repeal the Human Rights Act it cannot act outside the Human Rights Act. Would that little encapsulation of the Human Rights Act not apply exactly to a Bill of Rights were it to be enacted?

Ms O'Neill: Only if relevant amendments were made to the Scotland Act, and that is all the point to be made about it.

Q346 Earl of Onslow: What, to have a Bill of Rights which was UK-wide would require amendment to the Scottish Act, would it?

Ms O'Neill: In order to ensure that the Scottish Parliament could not legislate in contravention of that Bill of Rights would require an amendment to the Scotland Act.

Q347 Chairman: You would have to entrench it for the Scottish Parliament in the same way as the Human Rights Act?

Ms O'Neill: Yes.

Q348 Lord Dubs: In your evidence you say that a Bill of Rights should be a "citizen-centric mechanism". Could you elaborate on that please?

Mr Clancy: We will try.

Q349 Lord Dubs: Your words!

Mr Clancy: Yes, indeed. We did not mean that it should only relate to those who are citizens. What we were trying to convey was that it should not depend simply on rights bestowed on people but rather that the people should be involved in some way in the construction of those rights.

Q350 Lord Dubs: And that would be a political process, a consultative process? What are we talking about?

Mr Clancy: It would be both a political and a consultative process. I think the Lord Chancellor, when he made a speech in January, was talking in terms of looking at citizen meetings and summits where such a concept could be floated.

Q351 Baroness Stern: I would like to move on to the content of a possible Bill of Rights. You have written to us, very interestingly, on that matter and you suggest that a Bill of Rights should be "ECHR plus", so I will not ask you which you think. Could you say something about what rights you would wish to see included within a British Bill of Rights, and also you have told us that you are cautious about including rights, such as the right to trial by jury, which does not exist in Scotland, and I know Lord Onslow is about to get agitated about this but I am afraid this is the case, and whether there are any other problematic areas which could not be included in a Bill of Rights which apply to Scotland? That is a big question.

Mr Clancy: What would be additional to a Bill of Rights building on ECHR? One could envisage, dependent upon what Parliament eventually decided, that there should be social and economic rights included, and perhaps cultural rights as well. It was in that kind of area that one was thinking in terms of "ECHR plus". When one is talking about the development of these things, as the Cabinet Secretary said, there is an issue about the detail which a prospective Bill of Rights would contain and it would need a lot of discussion and a lot of consideration, and remember that if one included rights such as a right to education some people might say that they wanted a right to a private education. If one included issues about a right of healthcare, some might say that they wanted a right to private healthcare, so it is a very broad, quite politically-orientated issue, and, of course, one on which the Law Society could not legitimately have a prescriptive view.

Q352 Earl of Onslow: May I ask my question about jury trials, and again this is solely for my own understanding because I frankly do not understand it? Are all serious crimes in Scotland, in other words, the equivalent of the ones which would be tried by jury in England, actually tried by jury as a matter of fact rather than as a matter of right?

Mr Clancy: Yes, is the answer. The nature of the jury in Scotland is different from the nature of the jury in England.

Q353 Earl of Onslow: You can produce a "not proven" verdict, can you not?

Mr Clancy: There are three verdicts - guilty, not guilty and not proven, and, of course, our jury number is different. We have 15 people rather than 12, and, of course, the structure of our criminal courts is different from that which obtains in England and Wales. The High Court of Justiciary, which is our supreme criminal court, was founded in 1672, so it is a 17^th century creation, and that date might chime in terms of some of the other documents which we mention in our submission, like the Claim of Right or the Bill of Rights, but the 1672 foundation of the High Court of Justiciary included in it that it should have a jury. The determination as to whether a case is tried in that court is at the instance of the prosecutor, in Scotland the Lord Advocate, and it is really the determination of the forum where the crime is to be tried which determines whether or not there is a jury involved. Therefore, in a sense, we do not have the Magna Carta. The Magna Carta did never apply in Scotland and when clauses 39 and 40, which apply to this particular issue, that "no freeman should be taken or imprisoned or decised or exiled or outlawed or anyways destroyed" -----

Q354 Earl of Onslow: Can we have it in the original Latin?

Mr Clancy: Now, now. I only have a translation at home, so you will have to bear with me on that.

Q355 Earl of Onslow: Thank goodness!

Mr Clancy: Having a judgment of his peers under clause 39 was never in the Scottish imagination and it is always dependent upon the court.

Q356 Chairman: Magna Carta does not guarantee jury trial, actually. Magna Carta says trial by peers "or in accordance with the law", not "and in accordance with the law".

Mr Clancy: Indeed, that is correct. Thank you, Chairman.

Ms O'Neill: In terms of the more general question of Scottishness and the content of a Bill of Rights, the only thing I would add to that is that, as I heard the question framed, it referred to the Scottishness of a Bill of Rights giving rise to difficulties, and I wonder if it might be viewed not in terms of difficulties but in terms of opportunities? I do not think the Law Society would necessarily view a Bill of Rights as being something which had to be British and could not be Scottish or Northern Irish, and certainly I would endorse quite a lot of the evidence which was given to this committee by Professor Sidoti in terms of the Northern Ireland experience and the existence within a single state of multiple rights documents.

Q357 Chairman: Just to take the example of jury trial, if a Bill of Rights were to include the right to trial by jury, would the sky fall in in Scotland or would that be seen as a civil rights enhancing measure in Scotland to be embraced?

Mr Clancy: The prosecutorial independence of the Lord Advocate is one of those issues which is as effectively entrenched in the Scotland Act as you can get, and so therefore, whilst the sky would not fall in, I am sure the Lord Advocate would be disappointed.

Q358 Lord Dubs: May I just pursue the point that you made a moment ago, to be quite clear? You were saying that it is possible that there could be a Bill of Rights for England, one for Scotland, one for Wales and one for Northern Ireland, and that these might be different to some extent and that that would be a workable arrangement. I do not want to put words in your mouth but is that what you said?

Ms O'Neill: Yes. There is no reason why not.

Q359 Lord Dubs: Would there by any difficulties in, as it were, enforcing the rights in these different Bills of Rights, given that there might be people who would argue that they come under England or Scotland or whatever?

Ms O'Neill: We have issues with enforceability within different jurisdictions of the United Kingdom at present. Those issues are before the courts. There are issues which come to the Scottish courts which involve decisions about applicability of Scots law to those who are perhaps not Scottish. It is not conceptually novel.

Q360 Lord Dubs: But it is workable?

Ms O'Neill: Yes.

Q361 Chairman: But you end up with the anomaly which I put to the previous witnesses, that under the Human Rights Act the Scottish High Courts can declare Westminster legislation incompatible, but, if you have a British Bill of Rights that does not apply in Scotland and provides rights that go beyond the ECHR, you could have the position, taking the asylum seeker example again, where, even though the legislation applies in Scotland, the Scottish courts could not strike it down or declare it incompatible, although an English court could.

Ms O'Neill: I wonder if you might ask that question again.

Q362 Chairman: Okay, I will try again. Suppose you have a British Bill of Rights which does not apply in Scotland but that provides rights that go beyond the Convention rights. Let us take the case of a right not to be destitute, for example. What would happen is that an English court could declare incompatible Westminster legislation which makes asylum seekers destitute, but even though that law about asylum seekers applies in Scotland as well the Scottish courts could not strike it down or declare it incompatible because the Bill of Rights does not apply north of the border.

Ms O'Neill: Yes, I agree. I think that must be right.

Q363 Earl of Onslow: Mr Clancy was saying earlier on, as I understood him, that if you are going to have one it has got to apply to England, Scotland, Wales and Northern Ireland. Did I understand you to say that or did I get that the wrong way round?

Mr Clancy: What I said was that you would have to view any British Bill of Rights through the different perspectives of the various legal systems.

Q364 Chairman: So you would have to have a British Bill of Rights plus (Scotland) or a British Bill of Rights minus (Scotland), or (Northern Ireland) or whatever?

Mr Clancy: Yes.

Q365 Lord Dubs: Is that to do with enforceability or the basic principles?

Mr Clancy: That is an interesting question. It may have a bit of both. There may be different principles involved, for example, a right to jury trial, but there may also be issues of enforceability.

Q366 Chairman: If we take the jury trial example, because I think that is quite a good one, we have got in the ECHR the right to a fair trial and everybody is happy with that because the right to a fair trial can mean different things in different places.

Mr Clancy: Indeed.

Q367 Chairman: But if it were to go beyond that and say, "You have a right to a jury trial", going back to our original question, would it be seen as a human rights enhancing measure in Scotland or Westminster stamping its big boots all over the Scottish legal system?

Mr Clancy: It would be a considerable innovation in the Scottish legal system.

Q368 Chairman: Ah, but that is not answering the question. Would it be seen as, if you like, an enhancing measure?

Ms O'Neill: It might well be by some and not by others. The point that we would make is that, if the content of a Bill of Rights is determined at a UK level without giving consideration to the sensitivities of the different jurisdictions, that is more the issue. I do not think we are saying for a moment that there cannot be British rights incorporated in a Bill of Rights but that those have to be agreed in light of the differences which exist within the different jurisdictions.

Q369 Chairman: There may well be rights that you have in Scotland that we do not have south of the border which we might want to import the other way round.

Mr Clancy: Indeed.

Earl of Onslow: I rather got the impression, and I would like to get it right in my mind, that the difference on right to trial by jury is more in appearance because you do things, as you said, at the same level as we do in England. It is in fact a gloss rather than a matter of substance. You have the right of trial by jury.

Chairman: No, you do not.

Earl of Onslow: Yes, you do, because it has been established for such a long time.

Chairman: No, it is not a right. The prosecution has the right to trial by jury, not the citizen.

Q370 Earl of Onslow: Yes, but I particularly asked you, "Is the level of trial by jury the same as it is in England?", to the same level, and if I remember rightly you said yes.

Mr Clancy: Yes, I did.

Q371 Earl of Onslow: What that means is that that has actually been established for a sufficiently long time that to try and overturn it would, quite rightly, produce an uproar. What I am suggesting is that, because it has been established by custom and practice for such a long time, it is in effect a right to trial by jury even though technically the Chairman is absolutely right: it is the prosecutor's right to choose. Does that make sense or not?

Mr Clancy: I can see where you are coming from, but if you are talking about who owns the right, is it the person who is accused or is it the prosecutor, in Scotland it is the prosecutor who owns the right, whereas you might contend that under Magna Carta it is the accused who owns the right. Remember that we have not had a series of approaches to criminal law such as offences triable either way. That never existed in Scotland. Whilst the net effect is that if I murder someone I will be tried with a jury, so I effectively can secure a jury by killing someone, -----

Q372 Earl of Onslow: It seems rather extreme!

Mr Clancy: I know, but that is really what it is about. It is about the seriousness of the offence and the forum in which it is prosecuted rather than a right inherent in me as a citizen to claim a jury trial.

Q373 Chairman: Supposing, taking that example, that the prosecutors were to go a bit off the rails and say, "We have had this murder but I think it should be tried in the sheriff's court", what could anybody do about it?

Ms O'Neill: Perhaps I might re-frame that question because there is legislation which governs the types of offences which are tried in particular ways. Perhaps one could phrase it in this way: if the Scottish Parliament decided tomorrow to legislate in a way which removed jury trial from the prosecution of certain offences there is no right entrenched anywhere in Scots law which would prevent the Scottish Parliament from so doing.

Mr Clancy: And remember, for example, that the Lockerbie bombing was prosecuted before a bench of three judges with no jury involved, so the High Court, sitting as the principal criminal court, is in a position to have its procedure modified in certain circumstances.

Q374 Chairman: Just to square this circle, going back to my earlier point about human rights enhancing measures, I think you have a maximum time when somebody has to be brought to trial.

Mr Clancy: Yes.

Q375 Chairman: That is the sort of thing that we might want to look at the other way round.

Mr Clancy: Indeed, and comments were made earlier about whether habeas corpus applied in Scotland, which it does not. We instead have what used to be the 110-day rule. I am not entirely sure what the number of days is now in which someone has to be brought to trial. We will write to you on that point.

Q376 Lord Dubs: May I interpose with this question? We have talked a bit about certain rights just now which we have in England but which you do not have here. Are there any rights, other than the 110-day rule, that you can think of that you have here but that we do not have in England and maybe we should consider adopting them? You could write to us about it if that is an unfair question to throw at you like this.

Mr Clancy: It is not an unfair question. We are here, after all, to talk about a Bill of Rights. We were just thinking perhaps about the right to free personal care which applies in Scotland but does not, as far as I am aware, apply in England and Wales. Remember that there is a right to free prescriptions which applies in Wales but does not apply in England, and there is currently a proposal to extend that provision to Scotland, so there are these different areas which are more in the social area than the substantive human rights arena. Those are a couple of examples.

Q377 Baroness Stern: We were talking, before we moved around a bit, about what you think should be in a British Bill of Rights and I asked you if there were other areas which could not be applied to Scotland other than the jury trial, and if you answered it I have already forgotten whether you said there were any other areas apart from jury trial. Did you?

Mr Clancy: I think that was the only one which came to mind.

Q378 Baroness Stern: I thought I had not missed anything. You also said you were thinking about the possibility of cultural rights. I wonder if you could say a little bit more about what you meant by that.

Mr Clancy: Perhaps rights in relation to language. Remember, as you will have come into this building you will have seen a sign which was both in English and in Scots Gaelic, and there are legislative provisions applying to the use of the Gaelic language in Scotland so that people in certain parts of the country may employ the language in court and, of course, in this place speeches by Members can be made in that language and committees have heard evidence in that language.

Q379 Baroness Stern: Thank you. That is very helpful. Under this heading of "Content" I would like to move on to talk about how wide a Bill of Rights might go and how far it might be a statement of aspirations. Would you see any benefit in including rights which are not justiciable and do you think there is any merit in a Bill of Rights being a document that does not just set out what we could have now but also sets out what an aim would be for what human beings should ideally have in their society?

Ms O'Neill: I would have no difficulty with a Bill of Rights containing aspirational statements provided there was clarity as to which parts of the Bill of Rights were intended to be aspirational and which were intended to be legally enforceable. From the perspective of the Law Society the aim would be to achieve certainty about the law and anything which muddled those parts which were aspirational and those parts which were enforceable would be very likely to cause us difficulty.

Q380 Lord Dubs: In your evidence you state that you do not think that a British Bill of Rights should include responsibilities, and you say that this is "fundamentally a political question". Could you expand further and say why you think that responsibilities should not be included?

Mr Clancy: I was reading a speech by the Lord Chancellor. I did actually prepare for this session, you see. He made the speech in January and he makes an interesting comment: "Let me say here that I fully understand that there is not and cannot be an exact symmetry between rights and responsibilities. In a democracy rights tend to be vertical, guaranteed to the individual by the state to constrain the otherwise overweening power of the state. Responsibilities, on the other hand, are more horizontal. They are duties we owe to each other, to our neighbour in the New Testament sense", so in a sense I think that is where I am finding some difficulty in terms of responsibilities. What the Lord Chancellor seems to be indicating in this speech is that we are moving into almost a theological field about responsibilities and, whilst looking at the Gospel of St Luke, chapter 10, verses 25-37, you can see that the neighbour principle lies at the heart of many of our legal institutions -remember the case of Donoghue v Stevenson and Lord Atkin's famous judgment about the snail and the ginger beer bottle and the responsibilities, the liability, of a manufacturer for the ultimate consumer's detriment in the event that there comes to be a problem - that is all very well in a legal setting where the House of Lords makes a decision, but when we are talking about politicians setting out their responsibilities in words which tend towards the theological then it may be the case that the Lord Chancellor and the Archbishop of Canterbury will get into some trouble together.

Baroness Stern: Can I just find out a little more about the snail and the ginger beer bottle?

Chairman: I will tell you about it later.

Q381 Earl of Onslow: It was a stone bottle; you could not see the snail inside it and the retailer was not found responsible, is that not right?

Mr Clancy: It was an opaque bottle, you are right; it was glass. I have actually seen a Stevenson's ginger beer bottle.

Q382 Chairman: Not the original exhibit?

Mr Clancy: The original exhibit cannot be found, Chairman, but this lady poured out some ginger beer which allegedly contained parts of a decomposed snail. She drank it in what is known as an "ice cream float" and then suffered gastroenteritis. The case went to the House of Lords in 1932 on a point of law because earlier the Court of Session had decided that you could not find a liability in the manufacturer in the case of Mullen v Barr, but in the House of Lords Lord Atkin came to the conclusion that there was a responsibility on the part of the manufacturer because it was within reasonable foreseeability that someone would be consuming the product and that there was a duty of care by the manufacturer to the ultimate consumer. Therefore, Mrs Donoghue won her point of law and settled the case out of court for �500.

Q383 Chairman: We will never know whether there was a snail or not because it was never reported.

Mr Clancy: It was never proved. It never went to proof. It was only a point of law.

Q384 Earl of Onslow: When I was doing my national service I was flipping through the Army Book or Manual of Law and it is in there somewhere, and that was in 1956 before most people in this room were alive, I suspect.

Mr Clancy: It would be very interesting to see what kind of ginger beer the Army was drinking in those days.

Q385 Earl of Onslow: The questions I have down have more or less been asked but I would like to encapsulate my question to you, which is this. Would you see a Bill of Rights solely as protecting the Queen's subjects from an over-mighty state, which Jack Straw talks about, because it seems to me, and we have probably all read the Henry Porter article; that was basically his evidence to the JCHR the other night? That is where I come from. I find that it is the over-mighty state which is passing law after law which offends my sense of justice, and that is where I see the necessity for a Bill of Rights. That seems to me to apply to England, Scotland, Wales and Northern Ireland, so it is supra-British and a protection of the subject against an over-mighty state.

Ms O'Neill: Standing what we have already said to the effect that the Law Society would be hesitant about saying too much about the precise of a Bill of Rights, I think the traditional view of a Bill of Rights is certainly to protect the citizen against the power of the state. All I would say in addition to that is that as the jurisprudence of, for example, the European Convention on Human Rights has developed it has become clear that the protection against state action can also be extended to a requirement for positive state action, for example, to provide housing or to provide welfare assistance for those who without that assistance would have their rights breached. I think already we are in a position where we have a rights framework which imposes positive duties on the state to give things as well as imposing restraints on the state not to do things.

Q386 Earl of Onslow: Could you elaborate that a little bit more?

Ms O'Neill: An example which comes to mind and which I think may have been referred to in the previous session is in relation to, for example, asylum seekers or aliens and the obligation not to treat those persons in a way which is inhuman or degrading. That obligation not to do something on the part of the state can be interpreted and has been interpreted by the courts as extending to providing positive welfare assistance to asylum seekers, so, although the right is in language of "Do not do X", the interpretation of that right includes "You must do Y".

Q387 Earl of Onslow: I follow that, but that has been the case all along, has it not?

Ms O'Neill: Absolutely.

Q388 Earl of Onslow: That applies to things that do not apply to you, like habeas corpus, Magna Carta or the Declaration of Rights. They presumably had those to upsize as well, did they?

Ms O'Neill: Yes.

Q389 Earl of Onslow: So there is nothing new in that?

Ms O'Neill: Agreed.

Q390 Lord Bowness: Just before we leave this section, you answered one of my colleagues' questions as to what rights might exist in Scotland and elsewhere but do not exist in England, and you gave as examples free prescriptions in Wales and free personal care in Scotland. Are those really rights in the sense that we are discussing rights in a Bill of Rights or are they in fact benefits which flow from the political policies pursued by those particular administrations? In deciding to do both those things it is surely a question of political choice how you use your resources, not as a matter of principle whether you provide health and social care, which can be done in a variety of different ways? If we include those sorts of things in any Bill of Rights is it not going to restrict the ability of the devolved administration here, or indeed administrations elsewhere in the United Kingdom, to make those political determinations?

Mr Clancy: The reason why I gave those examples is that they are couched in terms of rights to free personal care, rights to free prescriptions, but I can see exactly where you are coming from. You have touched a nerve in terms of what is meant by a "right". Whilst we can see that ECHR provides a list of rights, and in certain instances responsibilities because there are co-related aspects, it is quite difficult to see beyond those rights enumerated in ECHR, ones which would not stray into the areas of social and economic policy; I think that is probably right. When one compares ECHR with other international human rights instruments, such as the UN Declaration on Human Rights, it is possible to see that in terms of basic fundamental human rights probably the ambit of them has been circumscribed by the ECHR. It is when we make the political decision - when you make the political decision - and when the country agrees to such a political decision that we move into other areas where that which has not been yet considered as a right becomes a right and it really depends on how we define what a right is.

Q391 Lord Bowness: Would you not have to make the same kind of saving clauses as are made in the Charter of Fundamental Rights, of which half essentially is a re-statement of the Convention rights? The other half is matters which probably could be described as social and economic rights. I think there is an attempt to describe them as principles, but they are almost all made subject to the provisions of national legislation.

Mr Clancy: Yes, I think so. We would have to make such a saving provision.

Q392 Chairman: Or you could approach the question of social and economic rights by circumscribing them in relation to issues related to resources as they do in the South African constitution. However, if we are to take the example of healthcare I think it would be a very strange Bill that had that very detailed level of specificity to which you were referring, as to prescription charges, but if, for example, you had a right to healthcare, however it were framed, there could be a bottom line that said, "If you cannot afford the prescription the state should provide it for free", which would be a different thing. It is effectively the system we have in England at the moment. We could argue whether it goes too far or not far enough, but that would be an example of how you might be able to deal with that.

Mr Clancy: Another example might be where the current Article 6 provisions for right to a fair trial do not actually say that you have a right to legal aid, and we rely on jurisprudence from Strasbourg in Airey v Ireland to provide for that consequent right to legal aid, which I referred to as a right of access to justice in the context of our memorandum. Maybe what we should look to do is elaborate the rights as they are enumerated, which would be to search through the jurisprudence of the court and see where there are these gaps which have been filled by jurisprudential extension.

Q393 Chairman: Could I raise the issue of horizontality again? I put to the previous witnesses the issue of the big multinational. Supposing we had a right to privacy. Why should an employee of a big multinational not be able to rely on that right against surveillance by their employer, for example?

Ms O'Neill: Our perspective is that the way the Human Rights Act is drafted at present there is at least the potential for such an interpretation already.

Q394 Chairman: But it is not enforceable against a private employer?

Ms O'Neill: Not a wholly private employer unless that private employer can be viewed as a public authority against whom direct rights would lie. In terms of the law of privacy I do not think we have any difficulty with the general obligation on the courts to interpret the common law in a way which is compatible with Convention rights and to extend Convention rights in a horizontal way by that mechanism.

Q395 Chairman: So you would not like to see horizontality directly enforceable in that context? You have to rely on the courts interpreting it in that way?

Ms O'Neill: To the extent that the Cabinet Secretary referred to the protection of rights being a state responsibility, I think there is something in that. Where we would like to see greater activism is in relation to the definition of "public authority" within the Human Rights Act as it stands at present.

Q396 Chairman: I think we all agree with that - I hope we all agree with that anyway - based on our previous discussions on the YL case, but this is a slightly different issue. This is where you have got an entirely private big company, nothing to do with the state at all, that decides that it wants to spy on its employees and what they are up to and that sort of thing.

Ms O'Neill: I think, with respect, that that in some respects is an easy example to give. The more difficult example is the small employer who is not a multinational and the extent to which we as a society want to impose those obligations on all other citizens in all of their other dealings, and, without taking the easy route out, I think that is a bigger question than the Law Society of Scotland can answer.

Q397 Baroness Stern: Since we are talking about what else it could be, I wonder if you have any views on how well the ECHR does with the rights of children, for instance. We have ratified but not incorporated the Convention on the Rights of the Child and it might well be felt that in that area there is a lot more we could do to make ourselves much more bound by the basis of the Convention on the Rights of the Child. Do you have any views on that?

Mr Clancy: The Children (Scotland) Act 1995 gives children many rights which emanate from the UN Convention on the Rights of the Child, and, of course, we have a Commissioner for Children and Young People here in Scotland, Dr Kathleen Marshall. Without being cheeky, I suspect that she would be better placed to answer this question than other people, but maybe I could take that question away and write to you after I have talked to Christine about it in a place where we can discuss it, if you do not mind.

Q398 Lord Dubs: In your view what would be the appropriate balance between the powers of the judiciary and the power of the legislature under a Bill of Rights? Does this have any implications for parliamentary sovereignty?

Ms O'Neill: We again start from the perspective, in Scotland at least, where the notion of the judiciary having the power to strike down legislation is not novel or shocking. That being said, the judiciary in Scotland have not yet struck down any legislation of the Scottish Parliament, so we are still waiting for the impact of that sort of ruling. In terms of the sovereignty of Parliament and the balance of the powers of the judiciary and the legislature, again, looking at what we have already, we, of course have a situation in the UK at present where sovereignty of Parliament is not entirely unlimited. In the context of the European Union our domestic courts ------

Q399 Earl of Onslow: May I just interrupt you? It is unlimited because it was found in the Appeal Court by Lord Justice Laws that Parliament is quite entitled to pass legislation which says, let us say, that the Common Fisheries Policy does not apply, by specifically repealing sections of the 1971 European Accession Act. That has become established as a slightly constitutional act in that the doctrine of implied repeal does not apply to that Act. You have to specifically repeal it and then it can be repealed, so the doctrine of the supremacy of Parliament is still there. Okay, it is pushed back a little further, but the absolute supremacy of Parliament is still there because no Parliament may bind its successor.

Ms O'Neill: I would go no further than to point to the decisions of the House of Lords to date where legislation of the UK Parliament has been disapplied. I would not go any further than that.

Q400 Earl of Onslow: What was that? The fishing boat case was the important one, was it not?

Ms O'Neill: Yes.

Q401 Earl of Onslow: But since then John Laws has said that if that Act had said "irrespective of the 1971 Act" it would have been a sovereign Act of Parliament. I think that should be always borne in mind when we discuss these things.

Ms O'Neill: I suspect there are books we could write on this particular topic. In terms of the balance between the judiciary and the legislature, it is not inconceivable that a power to strike down legislation as being incompatible could co-exist with the supremacy of Parliament. As things currently stand, if an Act of the UK Parliament is found to be incompatible with the Convention then the most that a court can do is make a declaration of incompatibility. There is nothing conceptually which would prevent an amendment which would have the result of allowing the courts to strike down that legislation but leave it open to Parliament to reinstate that legislation by, for example, a greater than absolute majority if that was one way of looking to protect the rights of an individual who was affected by the breach. There are different ways in which you could order things so as to provide both a judicial power of strike-down but retain the ultimate supremacy of Parliament should Parliament decide to reinstate that legislation.

Earl of Onslow: An easy way of doing that is to make a law not subject to the Parliament Acts of 1911 and 1949.

Chairman: That is you trying to entrench your position, is it?

Q402 Lord Dubs: You have just said the courts do not have the power to strike down Scottish legislation.

Ms O'Neill: My apologies. The Scottish courts do not have the power to strike down Acts of the UK Parliament. They have power to strike down Acts of the Scottish Parliament.

Q403 Lord Dubs: But there has been no occasion when they have done so?

Ms O'Neill: No.

Q404 Lord Dubs: Therefore it would follow, you would agree, that the courts should also be given the right to strike down legislation if in their view it is contrary to the British Bill of Rights? A bit hypothetical, that.

Ms O'Neill: Yes.

Q405 Lord Dubs: There is no reason why that should not be the practice?

Ms O'Neill: No, none at all.

Chairman: But only if the Bill of Rights applies in Scotland, which goes back to my earlier question.

Q406 Lord Dubs: Yes, of course.

Ms O'Neill: Yes, and, without over-complicating it, of course the Bill of Rights could apply in Scotland in relation to reserved matters but not to devolved matters. It could have partial application.

Mr Clancy: I think that is the Government's intention, that the Green Paper will have application to reserved matters rather than devolved matters. There was an indication given after a speech by Michael Wills MP on Wednesday last week at the Constitutional Unit.

Q407 John Austin: Does it matter whether they are devolved or reserved matters? One of the witnesses has said to us that as human rights are not reserved to Westminster the Scottish Parliament's consent would be required for the enactment of any British Bill of Rights. Is that your interpretation?

Ms O'Neill: That is a matter of politics rather than law. As a matter of political convention the Scottish Parliament's consent is sought whenever Westminster legislates on something which the Parliament could itself legislate about, but that has no legal foundation.

Q408 John Austin: Let me take it further to clear my mind. Reference was made to the UN Convention on the Rights of the Child. In ratifying that Convention it would be the UK Parliament that ratified on behalf of the UK, but the Home Secretary has said that the UK will ratify by the end of this year the Convention on trafficking, which will be therefore legally binding not only on British institutions but also on Scottish institutions which are responsible for delivering certain services, so is the Scottish Parliament's consent required for the UK's ratification of the Convention on trafficking, for example?

Mr Clancy: No, it is not. That is a prerogative power.

Q409 Chairman: Even though it would impact on the Scottish legal system?

Mr Clancy: Yes.

Q410 John Austin: And you will be responsible for complying?

Mr Clancy: Yes.

Earl of Onslow: When the Government signs a treaty the articles in the treaty have to be brought in by legislation rather than by royal prerogative, so presumably the Government signs the treaty, the UK Parliament passes it where England is concerned and the Scottish Parliament passes it where Scotland is concerned.

Q411 John Austin: If it were, say, the Convention on trafficking, the UK Government are saying it has to be compliant before it can ratify but it cannot be compliant unless it is assured that the devolved Parliaments and Assemblies are also compliant?

Mr Clancy: Yes, that is right. We were just thinking about an example where a recent treaty has been implemented in the UK. The International Criminal Court came to mind and you will remember that there was legislation to implement that treaty, the Rome Statute, in the Houses of Parliament in 2003, I think it was, and that applied throughout the United Kingdom. But there were also provisions which related exclusively to devolved aspects, and so therefore a Bill was brought forward by now Lord Wallace of Tankerness to implement those provisions in the devolved setting and it related to things like the powers of the police and search warrants and things like that.

Q412 Earl of Onslow: What happened over the American extradition treaty? Did that apply automatically?

Mr Clancy: The fact is that in international law the state party to any international treaty is the United Kingdom. When the United Kingdom is bound by that treaty all parts of the United Kingdom are bound by that treaty. If it were the case that a devolved administration, either here, in Belfast or in Cardiff, refused to implement some aspect of an international treaty, then the United Kingdom would be obliged, through the United Kingdom Parliament, to implement it effectively directly through the powers in the Scotland Act. Remember that under section 28(7) of the Scotland Act, "This section does not affect the power in Parliament of the United Kingdom to make laws for Scotland", so the legal position is that the UK Parliament could enact legislation which would apply in Scotland. The Sewel Convention, which operates through a process of legislative consent motions in this Parliament, is one which is a constitutional convention. It is not a matter of law. The matter of law is contained in section 28(7) of the Scotland Act I think that in the unhappy circumstance where an international treaty was being flouted by a devolved administration to the UK's peril by being put in breach of those international obligations the UK would only have one option.

John Austin: So there is not a requirement of the Sewel Convention? There is a desirability to achieve consensual agreement?

Q413 Chairman: But the bottom line is that the Westminster Parliament can enforce its will over Scotland if Scotland does not comply with an international treaty requirement.

Mr Clancy: Section 28(7) is the embodiment and I know the Earl of Onslow will be happy at this, of the supremacy of the United Kingdom Parliament, or the Imperial Parliament!

Q414 Lord Dubs: Could I go back to something we were discussing a little while ago? If the British Government was set on introducing a Bill of Rights and if there was reasonable support for the principle in Scotland, is it therefore possible that the British Government could have its Bill of Rights but have a Scottish version to allow local circumstances to be included for that part which is applicable to Scotland?

Ms O'Neill: Yes, there is no reason why not.

Q415 Lord Dubs: Is that the way forward?

Mr Clancy: That is a political question.

Q416 Lord Dubs: It is partly political but partly in terms of the feasibility. It would be quite feasible, would it not, to have a Bill of Rights for England and then, in consultation with Scotland, such changes as were appropriate to Scotland could be added and the whole thing would then stand up legally?

Mr Clancy: If the Scottish Parliament agreed to that course of action then there would be no let or hindrance on it.

Q417 Earl of Onslow: The question I would like to ask, and this is again for my own information, for those of us who felt that the American Extradition Act was an act of barbarism, which I do feel, is, did the Scottish Parliament have to change their law for that or does extradition apply?

Ms O'Neill: My understanding is that extradition is a matter which is reserved to the Westminster Parliament and therefore the Scottish Parliament would have -----

Q418 Earl of Onslow: No say?

Ms O'Neill: Has no legislative say. I cannot recall whether there was any political debate in this Parliament about the advisability or not of the Extradition Treaty but there would be no legislative input from this Parliament in terms of ratifying that treaty.

Q419 Chairman: That is our questions exhausted. Is there anything you would like to add to anything you have had to say to us today, which we think has been very helpful?

Mr Clancy: No, I do not think so. Thank you very much for your consideration and for your interesting questions.

Chairman: Thank you for your interesting answers.