First and foremost, rights must be protected, says Faculty

20 Nov


The Faculty has entered the debate on repealing the Human Rights Act in favour of a Bill of Rights by declaring that it is not convinced of the need for substantial reform, in evidence to the Scottish Parliament’s European and External Relations Committee.

The Committee is examining the UK Government’s proposed repeal of the Human Rights Act and its replacement with a British Bill of Rights.

The Faculty said it believed the incorporation of the European Convention on Human Rights (ECHR) into domestic law through the Human Rights Act and the devolution legislation had been beneficial for the people of Scotland.

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

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

Asked for its general view on the UK Government’s proposal, the Faculty answered: “The UK Government has not published its proposals. It is accordingly not possible to express a considered view of any detailed programme at this stage.”

However, the Faculty continued: “The Faculty has been unable to identify any significant problem with the current operation of the Human Rights Act or the devolution legislation that incorporates the ECHR. It is not convinced of the need for substantial reform…It appears to the Faculty that the current system of domestic human rights protection works well.”

The Faculty has, however, made clear that it is not opposed to reform as such – provided that any reform does not diminish the protection of human rights. The Faculty stated that while it “has not identified a need for substantial reform of the current arrangements, its commitment is to the protection of fundamental rights as such, and not to any particular legislative scheme.”

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

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

The full evidence is at