IN his New Year address, the First Minister gave us good reason to consider distancing ourselves from the European Convention on Human Rights (ECHR) and the Human Rights Act, even if he did so inadvertently. There might be other good reasons for doing so that he did not give.
He talked of the “positive vision” that is set out in the Scotland’s Future white paper. He said: “Ultimately, at the heart of that vision there is one fundamental point, one overwhelming argument, that the best people to take decisions about Scotland’s future must be the people who live and work in Scotland.”
He continued: “We believe that decisions about Scotland – decisions that affect us, our families, our communities and the future of our country – should be taken in Scotland, to reflect the views and concerns of the Scottish people, rather than by governments at Westminster with different priorities, often rejected by voters in Scotland.”
It was not Holyrood, but Westminster, that was a signatory to the ECHR. It was Westminster that passed the Human Rights Act that led Holyrood to pass only such legislation as is compliant with the convention and with the subsequent rulings of the European Court of Human Rights in Strasbourg.
In a publication of the Council of Europe entitled 60th Anniversary of the European Convention on Human Rights: Our Rights and Freedoms, the following claim is made: “The convention was a milestone in the development of international law. Once states had accepted that a supranational court could challenge decisions taken by their own courts, human rights gained precedence over national legislation and practice. Court judgments are binding and have real practical consequences. They lead states to take compliance measures and to amend parts of their legislation.”
This might be a boastful exaggeration but it is hardly baseless. Why should we agree to be constrained in the formulation and enforcement of our present and future Scottish legislation by what previous politicians from other countries have declared to be “human rights” and by what an international court interprets such declarations to mean?
According to Mr Salmond in his New Year address: “Following a vote for independence in September, Scotland will then prepare to become an independent country. There will be negotiations with the rest of the UK, the EU and other international partners.”
It is highly unlikely the EU would agree to allow Scotland to join without accepting the ECHR. Why would a country that wanted to secede from the UK in order to be independent want to do that? Adherence to the ECHR would not only appear inconsistent with a desire for independence of the sort Mr Salmond talks of here, but it would not readily cohere with a commitment to democracy. Elected politicians should decide the content of the laws that apply within their political jurisdiction. They should decide what legal rights and duties the citizens within their polities have.
If we want our legislation to be in accord with “human rights”, as an independent, sovereign state we could so decide to pass our laws. We need not become signatories to a European convention on human rights to do that. We can protect what we consider to be “human rights” in what we consider to be an appropriate manner. It is not clear why we would want our legislation to be constrained by the notion of “human rights”.
Suppose that there is a very strong case in favour of, say, giving prisoners in Scotland the vote. We should give them the vote whether or not prisoners have a human right to a vote. Similarly, if there is a very strong case against giving them the vote, they should be denied the vote whether or not this will clash with their human rights.
The same can be said with regard to supposed human rights of any sort. What do we mean by human rights? Traditionally, they were thought to be moral rights that were prior to the existence of states and independent of their decisions and decrees. Are there such rights? If so, what are they?
How, if at all, should they be reflected in legislation and in public policy? This is highly debatable. For instance, in order to live and to lead a worthwhile life, we need among other things: food, shelter, clothing, sex, entertainment, friendship and agreeable physical exercise. We do not need a right to such things. We need the things. We can have the things without the rights and vice versa.
Whether or not we are more likely to obtain such things if politicians declare that we have a human right to them and pass what they think are appropriate laws is far from obvious.
Talk of human rights is pivotal to the rhetoric and ideology of some people. However, it does not exhaust the range of rational political debate. Indeed, it can stifle rational discussions by appearing to put some issues beyond dispute.
Mr Salmond rightly said: “It is a precious thing, to be able to debate and decide our own future through a civic and democratic process. Let’s … ensure that we take this chance to think about the sort of country we want Scotland to become.”
If fundamental decisions that affect the residents of Scotland should be made by them, should there not be a referendum to decide whether Scotland becomes a signatory of the ECHR if independence were to come about? At the very least, there should be a public debate about the matter.
• Hugh McLachlan is Professor of Applied Philosophy in the Glasgow School for Business and Society at Glasgow Caledonian University