The European Convention and the Independence of the Judiciary ‐ The Scottish Experience
| Date | 01 May 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00273 |
| Author | Aidan O'Neill |
| Published date | 01 May 2000 |
The European Convention and the Independence of the
Judiciary – The Scottish Experience
Aidan O’Neill QC*
[I]t would be wrong ... to see the rights under the European Convention as somehow
forming a wholly separate stream in our law; in truth they soak through and permeate the
areas of our law in which they apply1
Introduction
While the Human Rights Act 1998 is not expected to be brought into general force
throughout the United Kingdom until at least October 2000, in Scotland the Human
Rights Act has already come into force at least as regards the acts (and arguably,
too, the omissions2) of the Scottish Executive and of the Scottish Parliament
brought into being by the Scotland Act 1998.3
It may be thought that, as with the poll tax, and whether by accident or by
design, Scotland has become the trial ground for a radically new government
policy. The staggered implementation of the Human Rights Act in the United
Kingdom effectively allows the effects and implications of direct reliance on
human rights considerations to be assessed within a small jurisdiction so that
proper preparation may be made before the policy becomes law within the
territorial jurisdiction of the English courts.
In this article, I draw attention to some recent cases in Scotland in which human
rights considerations have been used to challenge the manner in which the Lord
Advocate has traditionally exercised his functions in Scotland, most notably as
regards his involvement in part-time judicial appointments. I then draw out the
possible implications that these Scottish decisions may have on the English
constitutional settlement, in particular the role of the Lord Chancellor in judicial
appointments and the administration of tribunals, once the Human Rights Act is
implemented south of the Border.
ßThe Modern Law Review Limited 2000 (MLR 63:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 429
* Advocate of the Scots Bar and Barrister of the Inner Temple.
.1Her Majesty’s Advocate vDavid Shields Montgomery and another 2000 JC 111, HCJ per the Lord
Justice General, Lord Rodger, at 117.
Section 6(6) of the Human Rights Act 1998 defines ‘act’ as including a failure to act, subject to
certain exceptions. There is no express provision to that effect in the Scotland Act, but it is plain
that, while the express qualifications are necessarily different in the context of the two Acts, the
expressions must have the same general scope, and the word ‘act’ in Section 57(2) [of the Scotland
Act] must include failure to act.
3 See Scotland Act 1998, s 129(2). The Scottish Executive law officers took up office with effect from
20 May 1999 and from that date became subject to the Convention rights. The rest of the provisions of
the Scotland Act came into force on 1 July 1999.
To continue reading
Request your trial