11 August 1999
The revolution is less than 11 months off. When the Human Rights Act 1998 comes into force next October, nothing will be the same again. The new act will allow people in the UK to use the European Convention on Human Rights when taking legal action in their own courts. People who can't imagine what this will mean have only to look to Scotland. There, in a small but significant way, the Human Rights Convention is already part of domestic law.
The Scotland Act 1998 gave Scotland its parliament and its executive - effectively, its own ministers. Under this legislation, members of the Scottish Executive must not do anything incompatible with the Human Rights Convention.
Scotland's senior law officer is the Lord Advocate, Lord Hardie. Until this summer, he was part of Tony Blair's government. On 20 May, Lord Hardie became a member of the Scottish executive and as such was bound to comply with the European Convention on Human Rights.
Two men from Whitburn in West Lothian, Hugh Starrs and James Chalmers, were charged by the procurator fiscal with assault and breach of the peace. Their trial began shortly before 20 May, and was adjourned until after that date when the court ran out of time.
That was understandable. They were tried by a temporary sheriff, a lawyer sitting as a part-time judge. Temporary sheriffs are appointed by the Lord Advocate. They have no security of tenure: they are appointed at the beginning of each year and can be "recalled" by the Lord Advocate without reason. They are paid by the day. The only way they can qualify for a pension is to be promoted to the permanent bench. That promotion is effectively in the gift of the Lord Advocate.
All this is not very different from the position in England and Wales. Recorders are appointed by the Lord Chancellor; they depend on him for appointment as circuit judges. But in one important regard the Lord Advocate is very different from the Lord Chancellor. The Lord Advocate is head of the prosecution service in Scotland. In that sense, his role is similar to that of the Attorney General in other parts of the United Kingdom. Lord Hardie could have instructed the procurator fiscal for Linlithgow to drop the case against Hugh Starrs and James Chalmers. He did not do so.
Remember Article 6 of the Human Rights Convention? The one that says "everyone is entitled to a fair and public hearing... by an independent and impartial tribunal"? Remember that it's now binding on the Lord Advocate? Well, say their lawyers, how can the two accused have a fair trial when the tribunal can be sacked by the prosecutor? How can temporary sheriffs be independent when they rely on the head prosecutor for promotion?
That's the question the men's lawyers put to the High Court in Edinburgh. A favourable decision from the three appeal judges would force Scotland's 126 temporary sheriffs to give up their wigs. Full-time replacements will cost a great deal more. Hearings will be delayed. And people who've been convicted by temporary sheriffs - at least since 20 May - may seek to appeal. The Human Rights Act is indeed a powerful weapon in the right hands.
Joshua Rozenberg is the BBC's legal affairs correspondent. He can be contacted at firstname.lastname@example.org
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