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Tuesday, 3 October, 2000, 10:34 GMT 11:34 UK
Human rights: The Scottish experience
The Scottish Parliament
The act has caused more than a few parliamentary ripples
While the Human Rights has come into law across all of the UK, Dominic Casciani reports how Scotland has had more than a year of getting used to what it would mean.


We were the unwitting guinea pigs for the Act

Conservative leader David McLetchie
Scotland knows what it's like to be a testing ground for new legislation. After all it was the first part of the UK to experience the Poll Tax and its people were the first to reject it.

But as a consequence of devolution in May 1999, Scotland has been experiencing what could be about the hit the rest of the UK, the reality of introducing the European Convention on Human Rights into domestic law.

The Human Rights Act was passed shortly before the Scotland Act which made devolution a reality. The Scottish Executive has been subject to its provisions from the day that it began work.

And while it placed a human rights agenda at the heart of government, critics of the act say it's not been a particularly easy transition with 600 attempts to bring cases against the executive.

Sheriffs leave town

That impact was felt in November 1999, right at the heart of the institution meant to uphold the rights - the Scottish judiciary.

A Scottish Sheriffs court
Outlawed: Temporary sheriffs were replaced
In the first UK judgement under the European Convention, three judges ruled that defendants appearing before temporary sheriffs could not be guaranteed an independent and impartial tribunal because Scotland's chief prosecutor, the Lord Advocate, appoints the officials.

The ruling caused a national debate and led to an emergency statement in the Scottish Parliament as Justice Minister Jim Wallace told everyone not to panic.

Almost 50 courts were regularly using temporary sheriffs, forcing the executive to look at new legislation to get around the crisis.

Court chaos?

But the most dramatic examples of what could happen under the act, if perhaps the not the most representative of its purpose, were two highly controversial rulings affecting motoring and planning laws.

Justice Minister Jim Wallace
Jim Wallace: "Don't panic" plea
In the first, the Court of Appeal ruled that legislation compelling motoring offence suspects to admit to being behind the wheel was incompatible with the right to a fair trial.

Scotland's solicitor general, Colin Boyd QC, said that the ruling would have "momentous effects". It has already been used as a successful defence in a similar case in Birmingham.

The Scottish case is being appealed against at the House of Lords, while the Crown Prosecution Service says it is taking advice on the Birmingham ruling.

In the second case, Scottish Heritage and the executive stepped in to prevent a developer from demolishing a Glasgow building designed by the architect Alexander "Greek" Thomson.

The firm, County Properties, challenged the executive, arguing that a public inquiry could not be fair and impartial because the head of the tribunal was employed by the government.

They won their case. Heritage campaigners described the situation as "insane", predicting planning laws had been effectively torn up.

'Firefighting' legislation

David McLetchie, Conservative leader in the Scottish Parliament, has laid the blame for these controversies at the door of the executive.

The sign for the Scottish Parliament
New commission: Debate continuing
He told BBC News Online that ministers had taken a "firefighting approach" to the Human Rights Act.

"Scotland has suffered a lot because these problems weren't foreseen," he said.

"In many respects we were in the firing line and since then we have been grappling with the implications of the convention.

"We were the unwitting guinea pigs for the act. The act was conceived in haste and it was passed in 1998 before the Scotland Act came into being."

Mr McLetchie said that he supported calls for a Human Rights Commission.

The proposed authority would be a domestic version of the European body that acts as a halfway-house, helping public authorities become compliant with the act and weeding out poor cases before they reach the courts.

He added: "Rather than having a proper audit before the act came in, we have been carrying out an audit after the event."

Improved justice?

But Mark Poustie, lecturer in human rights at Strathclyde University, said that while there had been a large number of cases, 98% of them had been ruled inadmissible.

He said that a degree of uncertainty had to be expected whenever new legislation comes into force.


The act is something that Scotland can be proud of

Mark Poustie, Strathclyde University
But he added: "On the sheriffs in particular, the executive didn't see it coming but many of the criminal practitioners did.

"That raised issues about the quality of the audit work that the executive had carried out prior to devolution.

"There has been a case of a lot of lawyers just trying it on and testing to see how far they can get with the law as it stands."

Mr Poustie said that, while there would probably be some short-term problems for public authorities, the result would be a better quality of administration in the future.

"I think it's wrong to suggest that we have been some kind of guinea pigs for the Human Rights Act," he said.

"Rather, I'd suggest that it's something that Scotland can be proud of, that our new institutions were bound by human rights considerations from inception.

"People suggest that the courts have been deluged.

"These cases have always been possible if people went to Strasbourg. It's just that it's easier now to deal with the case here.

"We won't be washing our dirty linen in Europe to such a great extent."


To mark the full introduction of the Human Rights Act into British law, BBC News Online is publishing a series on its impact throughout this week. Come back each day to find out more.

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