Off kilter

The Scottish media has attacked the new human rights commission as pointless and accused the ECHR of bringing chaos to the country's courts. Jon Robins reports

The Scotsman newspaper did not pull any punches when it was revealed that Scotland was to have its own human rights commission. 'Keeping the reins on chancer's charter', was the blunt headline of its article covering the announcement of the new watchdog at the end of last year.
“The introduction of the European Convention on Human Rights [ECHR] into Scottish law has already created controversy, with many commentators arguing that the convention has brought chaos to the system as much as any improvement to human rights,” the paper argued. “The executive hopes the creation of the commission will bring an end to the widespread legal problems associated with the ECHR.” According to the paper, the role of the watchdog is to protect people from the legislation and not to promote rights, in order to, for example, protect people from the powers of the state.
Rights watchers are hoping that a Scottish commission will reopen the debate for a similar body south of the border. “Why, alone in the UK, are people in England and Wales still to be denied the benefits and protections of a human rights commission?” asks John Wadham, director of human rights pressure group Liberty. “The Government's failure to consider this seriously defies both common sense and the repeated urgings of the United Nations.” There is already such a body in Northern Ireland.
Clearly, Wadham does not share The Scotsman's take on the perceived role of such a body and hopes that it would raise the profile of human rights. “We need a commission to help drive forward essential improvements in rights protections in this country and to shape a new rights-based culture,” argues Liberty.
The negative media coverage elicits a uniform groan from leading Scottish human rights lawyers. “The Scotsman has been part of the problem in making the development of a human rights culture more difficult than it should be,” says Professor Alan Miller, director of human rights law at Glasgow-based firm McGrigor Donald and visiting professor in law at the University of Glasgow. “Their agenda's been set by random cases, and on the whole poor press and media coverage has left the public uninformed about the real benefits of the human rights legislation.”
When justice minister Jim Wallace made the announcement last month, he outlined the key functions of a commission as follows: awareness-raising; guidance to public authorities; advising the Scottish Parliament; monitoring law in practice; and investigating human rights issues in relation to public policy.
“Since devolution, there has been much focus on litigation,” says Wallace. “I'd like to see this balanced by education, guidance and awareness-raising, and the independent commission will be able to do this.”

“The Scotsman has been part of the problem in making the development of a human rights culture more difficult than it should be”
Professor Alan Miller, McGrigor Donald

But human rights campaigners want to see a body with strong enforcement powers as well. Roseanna Cunningham, Scottish National Party justice spokeswoman, has noted that the executive's version of a commission “has had its teeth drawn before it's had a chance to roar”. The proposed body “seems to be purely advisory, with no powers to take cases to court itself”, she commented last month.
Miller is hopeful that this will not be the case and that the body will have powers both to take cases and hold public enquiries. “There's going to be a consultation on the powers of the commission, and there's likely to be quite a strong voice of opinion in favour of adding the power to take test cases and maybe even carry out investigations and have the power to call witnesses,” he says.
Wallace unveiled his plans for a commission during a speech to teachers and pupils at Gourock High School at the launch of the Inverclyde Education Authority's human rights charter. The charter was part of the work of Miller, who was asked to look at how the education authority could ensure its human rights compliance.
According to Miller: “The role of a human rights commission, in part at least, would be to enhance the understanding and the benefits to the public of the Human Rights Act to ensure that Parliament and public authorities improve their compliance and best practice.” Nevertheless, he believes that a body without powers to deliver in the courts of Scotland could “potentially be weakened and not have the credibility that it might otherwise have”.
Jane Convery, assistant director of the Scottish Parliamentary group at Shepherd & Wedderburn, draws a parallel with other equality bodies, such as the Equal Opportunities Commission and the Commission for Racial Equality, which do have the powers to take on such cases. “But I wonder if the Scottish Executive would be really happy to go down that road, bearing in mind that human rights compliance has been such a difficult issue since the legislation came into force,” she says.
But not everyone wants to see too powerful a watchdog. For example, James Keegan, convenor of the Scottish Law Society's human rights committee and a partner at Glasgow firm Keegan Smith, believes there should be proper restrictions on its powers to ensure that it is “a respected and independent body. I've never envisaged a Scottish commission taking on its own caseload,” he says. “We have a legal aid system here and I wouldn't think it was necessary to have yet another tier or authority to take on cases.”
He believes that the key role of the commission will be to monitor legislation. “A human rights commission is particularly important in a country like Scotland, where we don't have a second chamber,” he continues. “The House of Lords has been exercising this other function that a commission would exercise – for example, if you look at the manner in which it's dealt with the Terrorism Act.”
All lawyers hope that the commission plays an educational role and presents human rights in a more positive light so as to reverse the damage done by two years of bad headlines.
“There's certainly huge scope for the promotion of human rights here,” comments Rosemarie McIlwhan, director of the Scottish Human Rights Centre. “You can see from the reporting in all the newspapers – broadsheets and tabloids – that people are still very ignorant of what human rights can mean for them.” McIlwhan cites the example of Andrew Aspinall, a member of the 'Wonderland Club' paedophile ring, who was acquitted on an “ECHR technicality”. Aspinall was accused of storing thousands of images of children being sexually abused on his computer. But the case against him collapsed after it was argued successfully that his human rights were breached because one of the men involved in the raid was not a policeman but a civilian employed by the police. “It was very much a case of the press picking up on the negative aspects of the case,” McIlwhan says. “We have yet to see a positive human rights story.”
Convery believes that, inevitably, the Aspinall saga annoyed many people. But she maintains that human rights charters are extended to everybody, “regardless of individual attributes and the individual features of the cases. It's not something you can apply in a differential manner on the perceived merits of the case,” she argues. “That's something the commission should draw attention to.”
No case has attracted more controversy in the short history of Scottish human rights than that of Hugh Starrs', a 19-year-old charged with assault, in which it was argued that the use of temporary sheriffs was in breach of the ECHR. Keegan represented Starrs and contended that the temporary sheriffs were not sufficiently independent from the Lord Advocate for the accused to receive a fair trial. The Scottish legal system was thrown into turmoil when judges outlawed the country's 129 temporary sheriffs, who handled a quarter of all criminal cases.
The case is frequently cited as an illustration of the kind of havoc that the legislation wreaks. According to Keegan, there was nothing controversial about the challenge, which was conducted “in the interests of justice”. He reckons that the temporary sheriffs “couldn't be regarded as an independent and impartial tribunal, as they were capable of being removed at the whim of the Lord Advocate, who also happens to be the prosecutor in Scotland.
“The case was used by certain aspects of the press, who didn't understand or care to consider the constitutional implications of the case,” Keegan continues. “It was a hugely important case in our constitutional law, because it emphasised the need for a separation of the power.” Perhaps,then, it is the type of case that a future human rights commission would be happy to back.