Professor Alan Miller discusses a crucial time for human rights legislation in the UK

News stories berating human rights legislation and the so-called soft touch environments they have created have become a staple in many UK newspapers in recent years.

Aggressive headlines lambasting potential prisoner voting rights or inmate compensation claims have helped fuel an intense debate that has led to calls for reform and potential changes to the UK’s relationship with European law.

For those who take on the task of defending human rights laws, the job has become increasingly unpopular.

Professor Alan Miller, chairman of the Scottish Human Rights Commission, agrees this is one of the most critical times for human rights law in the UK in recent years.

“I think since the time of the UK General Election last year and the period leading up to that we have seen some important things begin to emerge in human rights within the UK,” he said. “At the UK level, across a range of fronts there has been a retreat from the UK accepting its international human rights legal obligations and seeking to make itself less accountable to the public through limiting access to the European Court of Human Rights. This has resulted in the Westminster coalition, at least the Conservative part of it, trying to repeal the Human Rights Act and substitute it with a weaker British bill of rights.” Britain’s human rights obligations have been criticised by some over the last 12 months. Much of the frustration has centred on a row over a European Court of Human Rights’ ruling in 2005 that the UK was unlawfully operating a blanket ban preventing prisoners from voting. MPs have since voted overwhelmingly to continue defying the ruling and maintain the ban.

Opponents have said the European Convention on Human Rights (ECHR), written into UK law in the form of the Human Rights Act (HRA), is being unfairly exploited, often citing examples of prisoners winning compensation claims for breaches of human rights as proof.

Earlier this year a consultation was launched by the Westminster Government to explore the possibility of establishing a UK bill of rights, which could replace the HRA.

Miller said: “There is no doubt that some of the statements that have come from UK ministers have been unprecedented in terms of their unfounded, distorted criticisms of particular judgements from courts, either the European Court of Human Rights or the UK Supreme Court, and that contributed to an atmosphere where a consultation on a UK bill of rights could be launched.

“As a human rights commission, we are very much internationally connected and among our peers the UK position is viewed with some bewilderment.

“The UK has become obstructive in a number of areas and it is to the great disappointment of people across the international community.

“For example, to see what happened at Dale Farm on our TV screens a month ago or so just causes bewilderment that a developed country in the 21st century cannot solve a problem like that other than through forced evictions and the scenes we saw.

“And then some of the quality of debate at Westminster and the campaign against the HRA amongst serious commentators and judges and politicians has been held in very low regard.

“Scotland has, to a significant extent, not been caught up in that but we still have the same newspapers here and hear the same views so a culture [against the HRA] can still exist.

“It has been a very difficult time for human rights in the UK over the last year or so, but that’s part of being in this field, you don’t get involved to have an easy life.” The commission, which started operating in 2008, has already expressed its opposition to a bill of rights and Miller is hopeful nothing significant will progress in the immediate future.

He said: “As long as the UK Coalition Government stays together for the term of office it is difficult to see how anything practical will take place this side of the next election.

“I think the commission on a UK bill of rights is clearly composed to reflect the divisions within the UK Government – the Lib Dems defending the HRA and Conservatives wanting it repealed.

“I would imagine each of the parties would go into the next UK election with different manifesto commitments regarding the HRA and it would depend on the outcome of the election and then it also depends on the outcome of the Scottish referendum, which will be around about that time and that will have significant implications for human rights and the ways we protect them in Scotland.” He added: “Our position is quite clear that the HRA should be retained and better promoted with greater public understanding of it. We don’t think a weaker British bill of rights is positive, it is a backward and inwardlooking approach.” Miller spoke to Holyrood as celebrations for Human Rights Day were marked internationally (on 10 December).

It has been a busy year for the commission, as well as responding to a number of breaking issues across the UK and abroad, earlier this year it was elected chair of the European Group of National Human Rights Institutions – one of four regional groups that bring together bodies from all over the world.

It is also in the process of carrying out a major project to map the state of human rights in Scotland. This research is the first of its kind and will present a picture of where Scotland currently stands in terms of its international and domestic human rights obligations and which areas should be prioritised for improvement.

While the debate on a potential bill of rights has consumed much of the debate over human rights in Britain, there has been no shortage of issues in Scotland.

It is expected a series of landmark changes could be made to the country’s criminal justice system following the inquiry by Lord Carloway, published last month.

Following a year-long review of the system, Carloway issued a number of recommendations, which included a proposal to abandon the centuries-old principle that police must produce independent corroboration of evidence.

Carloway said the corroboration rule was “archaic” and prevented solid cases being prosecuted while being inconsistently applied.

The review was called for after the UK Supreme Court last year ruled that the long-standing procedure where police could question suspects for six hours without a lawyer was a breach of international human rights.

Carloway said every procedure for questioning, arresting and prosecuting a suspect should be altered as a result of the ruling, which came about following a series of appeals by Peter Cadder, who was convicted of assault after evidence he gave without access to a lawyer was used against him.

Just last week it was revealed the number of prosecutions abandoned or put on hold in the wake of Cadder has risen to more than 1000.

Carloway’s list of recommendations also includes suggestions that suspects should be given immediate access to a lawyer after their arrest and a letter setting out their rights, suspects being charged should be brought before the court within 36 hours of arrest and that the time between arrest and a formal charge should be limited to 12 hours.

“The inquiry is a major piece of work and the implications absolutely could be hugely significant,” Miller said. “I think we all have to digest the list of recommendations, but I think it can be welcomed generally for undoing some of the hasty measures that were immediately put in place following the Cadder judgement.

“What we welcome from the Carloway report is a presumption of liberty of the suspect and the abolition of the 24-hour detention period, which at the time we said was an unnecessary reaction to Cadder.

“The fact that a suspect will now be made aware when cautioned he’s entitled to legal access and preserving the independence of the Scottish Criminal Cases Review Commission are points we agree with too.

“On the question of corroboration, however, we take the view it isn’t appropriate for such a short inquiry to look at such an issue that has huge ramifications for victims, suspects, police, prosecutors and courts and that needs proper consideration by the Scottish Law Commission or some other form of inquiry.

“You can’t do that over several months and I would hope Parliament will not immediately go to legislation on the back of the Carloway recommendation on corroboration.” Miller hopes that while a number of human rights issues need to be resolved in Scotland, the debate will not turn as sour as it has at Westminster.

“The climate that has been created with regard to European law and human rights in and around Westminster has not been replicated to the same extent in Scotland,” he added.

“And Scotland is doing better in terms of getting human rights into the legislation and government directions of travel and there is an opportunity over the next year for Scotland really to do things bigger and better in terms of helping to shape a national action plan for human rights.

“It is an important time for human rights.

The UN is reviewing the UK’s human rights record next year and will then release recommendations.

“That has quite exciting potential and I think it is important in Scotland that we stand in contrast to an increasing retreat from human rights at a UK level.”