The first item of business is a Scottish Conservative and Unionist party debate on motion S1M-610, in the name of David McLetchie, on the European convention on human rights, and on two amendments to that motion.

I invite members who wish to speak in the debate to press their request buttons now, and I call David McLetchie to speak to and move the motion.

Thank you, Presiding Officer.

At the outset of my speech, I wish to clarify what this debate is about and what we are seeking to achieve with our motion. It is not about withdrawal from the European convention on human rights—it is about the legal relationship between ECHR and our system of law and institutions of government.

Of course we support the aim of protecting and promoting the human rights of United Kingdom citizens in line with internationally agreed standards. We are certainly not advocating that we should withdraw, as a signatory, from the European convention. After all, the UK was one of the 10 original signatories to the convention in 1950, and the convention has been binding on our nation since it came into full effect in 1953. Our accession to ECHR is not, and never has been, the issue. The convention has been supported by successive Labour and Conservative Governments during the past 50 years.

However, the Conservative party maintains that, before the Human Rights Act 1998 and the Scotland Act 1998 with its human rights provisions were passed, the way in which our domestic law related to ECHR was infinitely preferable to the situation today.

Under the old system—if I can call it that—British citizens could take cases to the European Court of Human Rights in Strasbourg to obtain rulings based on the convention. A successful ruling that established that the UK was in breach of an article of the convention did not automatically overrule UK law. Instead, it was for the UK Government and Parliament to remedy the situation and to take steps to bring UK law into line with the terms of the ruling as an interpretation of the convention.

Over the years, a number of cases resulted in decisions being handed down by the European Court of Human Rights that have had a significant impact on our law, such as those on the closed shop, corporal punishment in schools, telephone tapping, sentencing policy and immigration.

Although the Human Rights Act 1998 does not, strictly speaking, incorporate the convention into domestic law, the act is the vehicle through which further effect will be given to the convention rights. That means that the rights that are referred to cannot be amended or repealed in future. This is not a question of courts being given the power to strike down legislation; what will happen is that ministers will have to state whether they believe that proposed legislation is compatible with convention rights and our courts may declare that part of a law is incompatible with a convention right.

In Scotland, sections 29(2) and 57(2) of the Scotland Act 1998 have already constrained this Parliament to act within the confines of the convention. We have been the guinea pigs on which the Government's theories about how best to protect human rights in the UK were tested. Sadly, the results so far are not encouraging, for which Her Majesty's Government must take responsibility—it seems to have had no idea of the consequences of its actions or the course that it was setting in train.

There have already been a number of damaging effects on our legal system in Scotland. For example, 126 temporary sheriffs have been sacrificed on the altar of the ECHR because, back in November, three appeal court judges ruled that those sheriffs were not independent as required by the convention. That was because they were appointed by the Lord Advocate, who is both a Government officer and the chief prosecutor in Scotland—something that was deemed to undermine the independence of judges appointed by him.

That was bound to have huge repercussions for our courts. Before the Human Rights Act 1998 and the Scotland Act 1998 came into effect, in the event of an adverse decision from Strasbourg on temporary sheriffs, there would have been time for a measured and considered response by Parliament and the Executive. Instead, this was a case of hitting the panic button and fishing out the CVs in the pending tray.

The Deputy First Minister and Minister for Justice has still to come up with a full solution to the problems that have been caused by that decision. He has had to appoint 10 more permanent sheriffs and I understand that a further six full-time posts have been advertised. That is a bit like sticking one's finger in the dyke after the dam has burst, reacting to events rather than being in charge of them, which is the hallmark of the Executive.

Our justice system has been thrown into chaos. The waiting period for cases coming to court in Perth has increased from 17 weeks to 22 weeks for criminal cases and from 10 weeks to 15 weeks for civil cases. In Stirling, things are even worse, with delays increasing from 11 weeks to 26 weeks for criminal cases and from 10 weeks to 21 weeks for civil cases. We must be able to challenge the whole system of judicial appointments in Scotland; our judges are appointed by the First Minister on the recommendation of the Lord Advocate, who is still the head of the prosecution service.

If press reports are to be believed—and we occasionally treat them with a degree of caution—the First Minister seems keen to preserve the status quo. However, the Deputy First Minister and Minister for Justice has indicated his support for an independent commission to appoint judges, which is in line with the commitment made in his party's election manifesto. I would be interested to know whether that is a manifesto commitment that he intends to honour, or whether it is just another piece of Liberal election rhetoric. If yesterday's performance is anything to go by, perhaps two thirds of the Liberal Democrat parliamentary party will vote to keep Mr Wallace in a job, whatever that takes, a third will vote for what they believe in, and Keith Raffan will forget how to vote at all. As for the Conservatives, we believe that an independent commission would certainly be preferable to Lords Advocate being able to recommend their own promotion when the going gets a little tough.

The ECHR has recently had a significant effect on road traffic law. Section 172 of the Road Traffic Act 1988 compels the owner of a car, on pain of prosecution, to reveal who was driving the vehicle at the time of an offence. Although I acknowledge that the decision in question is currently under appeal, that provision of the act has so far been held to be in breach of the right to silence. Again, our legal system could be thrown into disarray, as an unsuccessful appeal will make it impossible to prosecute many motoring offences.

At a time when Her Majesty's Government and the Executive have just announced new road safety measures to curb irresponsible driving to reduce the toll of death and injury on our roads, it is bizarre to say the least that one of the legal weapons available to the police to uphold the law in that area should be under threat of ECHR decommissioning.

Was not 1988 during the period of the Conservative Government, when that Government was responsible for ensuring that its legislation complied with ECHR?

Robert Brown's history is correct, but I return to what I said at the outset—this debate is about mechanisms. Under the previous system, a challenge to section 172 would have to have been taken directly to the European Court of Human Rights in Strasbourg, and if the court had ruled against UK law, Her Majesty's Government and Parliament would have had time to bring UK law into line in a measured and considered way. The problem with the current relationship, as I attempted to explain, is that, in the event of an adverse ruling by one of our own courts, immediate action is required, and we do not have time for a considered response. That is the crux of the issue and of the debate between us, although I accept that what Robert Brown said about 1988 and our obligation to comply with the convention provisions is correct.

The first piece of legislation to be passed by this Parliament was the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. Many are concerned that the act does not meet the procedural safeguards in article 5.4 of the convention. I will say no more about that, other than to invite the Minister for Justice in his response to advise Parliament on the current status of appeals pending in relation to that legislation, and whether he foresees any difficulties with ECHR arising in light of the procedures followed so far.

As well as the problems that have already come to light, there are a number of fundamental features of Scots law that could run into difficulties with ECHR compatibility. According to Professor Robert Black of the University of Edinburgh, our way of dealing with juvenile crime, the children's panel, breaches ECHR on two counts. First, it fails to provide legal aid and, secondly, there is a question mark over the independence of the role of the reporter in that system. A challenge could be made at any time, and it would have substantial financial, as well as legal, implications. That situation is made even more ludicrous by the fact that our children's panel system is widely admired throughout the world and is a model for others.

There are other problems. Some believe that the current situation in Scotland with regard to bail for murder is in breach of ECHR; because a sheriff does not have the power to authorise bail in such cases, it could be argued that bringing someone before a court without the necessary power to authorise their release on bail infringes their rights under article 5 of the convention.

Important police procedures may also fall foul of ECHR. In particular, placing people under surveillance may constitute a breach of article 8, which relates to respect for family and private life. There could also be a question mark over aspects of investigative procedures on fingerprinting, photographing and DNA sampling of suspects. Undercover operations could also be held to constitute entrapment, and so conflict with a person's right to a fair trial under article 6 of the convention.

I was interested to read an article in the March issue of Police, the magazine of the police service, in which a learned barrister in human rights law said that it was not inconceivable in certain circumstances for the use of handcuffs to be outlawed under ECHR. The article concluded:

"That there will be changes in policing there seems little doubt."

Will David McLetchie confirm that all he has outlined is a series of possible challenges and suggestions from academics that measures may be contrary to ECHR? Does he accept that, out of the 350-odd challenges so far, only 10 have been successful?

Yes, I am prepared to accept those figures, but there could well be 340 specious charges. Lawyers are creative people when it comes to furthering the interests of their clients, just as they are creative politicians. What is indisputable is that those challenges that have been successful in relation to temporary sheriffs and section 172 of the Road Traffic Act 1988 have had serious consequences, although we await the outcome of the appeal in the case of the Road Traffic Act 1988.

I will conclude the quotation from the article. It goes on to say:

"In the initial stages it is likely that there will be challenges to police actions on numerous fronts and that there will inevitably be uncertainty until the courts here have provided guidelines from which a clearer position can emerge."

No one wants to create a police state, and the boundary between police powers and civil liberties must be carefully patrolled and adjusted in light of changing circumstances. If too much emphasis is placed on individual rights and not enough emphasis is placed on the need for a safe and well-ordered society, we are in danger of going too far, making the police fight crime with one arm tied behind their back. If we are not careful, we might soon be in the position in which the police are metaphorically handcuffed but the criminals, literally, are not.

ECHR may also hamper the fight against drugs. We all know that the Deputy Minister for Justice is an enthusiastic convert to the Republic of Ireland's tough measures to tackle drug dealers. Its Criminal Assets Bureau has—according to his reports to the Parliament—been a great success. However, the Irish system involves the seizure of drug dealers' assets under a civil standard of proof in which the onus is reversed. There must be a doubt as to whether similar legal mechanisms would not only withstand legal challenges based on ECHR in our courts, but even get off first base and come to this Parliament as legislative proposals if the Scottish Executive and Presiding Officer cannot independently and separately certify their compatibility with ECHR.

The Irish have not had to face those challenges, as they have not directly incorporated ECHR into their domestic law, as we did with the Human Rights Act 1998. I believe that the Labour Government made a major mistake in passing the Human Rights Act 1998 without fully considering the implications for our law and our institutions. I do not expect many in this Parliament—outwith my party—to agree with me.

Having highlighted the problems, let us acknowledge that the wider debate is for another place. We in Scotland live in the world of a devolved Parliament and Executive. We must operate within the parameters that have been set by the Scotland Act 1998. We must come up with a constructive solution to some of the problems that have arisen and accommodate ECHR in the way in which we conduct our business.

The implications of ECHR already affect the Scottish Executive, and from 2 October 2000 the Human Rights Act 1998 will come into force across Scotland and the United Kingdom. It will then be unlawful for any public authority, such as a local authority, court, tribunal or other public agency, to act in a manner that is incompatible with ECHR.

We cannot afford to continue with the fire-fighting approach that the Executive has adopted in constantly waiting for the next disaster to strike. The Executive must start preparing in advance to deal with the implications of this legislation. I welcome the suggestion in the amendment lodged by Mr Wallace that that seems to be being done in terms of guidance given to public authorities in Scotland.

The first step in the process should be to reform the way in which ministers deal with ECHR compatibility. It is not good enough that ministers assert in a one-line submission to this Parliament that a bill is compatible with ECHR. It should be incumbent on the Executive to produce a full statement, with a rigorous analysis, explaining the ECHR implications of its legislative proposals.

That is especially important in complex cases. The assessment should identify the specific rights that have an impact on the legislation. I remind members that interference with a qualified right, under ECHR, is justifiable only if it is

"necessary in a democratic society", which is interpreted by Strasbourg as fulfilling a pressing social need, pursuing an accepted legitimate aim and achieving a reasonable relationship of proportionality between the means employed and the aim pursued. As has been demonstrated by Strasbourg case law, that concept of proportionality should be of most concern to us as parliamentarians. It should be at the very heart of our debates on legislative proposals that may have ECHR implications; it should not simply be taken as read in a one-line compatibility certificate.

It is crucial that the advice given to ministers or to the Parliament is open to scrutiny. That is certainly not the case at present. I note that Colin Boyd, in a statement issued after his appointment as Lord Advocate, said:

"The Executive is conducting an ECHR audit which will report to Ministers shortly."

Well, good for the Lord Advocate. But what about the Parliament? That is exactly the legal closed shop approach that has led to mistakes in the past. Far too often, legal opinions are presented as though they are scientific facts—immutable laws, like the law of gravity—when they are nothing of the kind. As many of us are well aware, the law is open to wide interpretation, and opinions should be open to scrutiny and debate in the chamber.

The Parliament should be given, as a matter of urgency, a report on the impact to date of incorporation and the preparations that the Executive has made for October, when the Human Rights Act 1998 takes full effect. I hope that the first stage of that report will come in the minister's response in this debate.

Above all, we need to provide guidance to all public bodies in Scotland about the effects of ECHR on an on-going basis. Our public bodies are unprepared for the brave new world that awaits them after 2 October. There is a lack of professional knowledge and expertise in this area, which is why I would welcome the establishment of a human rights commission or similar body to act as a point of reference or guidance on a consultancy basis. That is the most effective way of providing advice to public authorities. Local authorities and other public bodies should not have to employ extra lawyers to deal with ECHR compatibility—my legal colleagues may not like that suggestion—when a central specialist service could be available to them.

Like the Irishman who, when asked for directions, replied that he would not start from here, the Conservatives would not have incorporated ECHR. Now that it has been done, however, we think that the solutions that I have outlined in this debate will enable the system to work as effectively as possible. I hope that the minister will take some of those solutions—and indeed the comments in the amendment lodged by the Scottish National party—on board in the constructive spirit in which they are intended.

I move,

That the Parliament notes with concern the disruption to Scotland's judicial system resulting from Her Majesty's Government's decision to directly incorporate the European Convention on Human Rights (ECHR) into Scots Law without having paid due attention to the consequences; further notes that the Convention now impacts directly upon the legislative competence of the Parliament and the powers of the Scottish Executive and from October 2000 will apply to all public authorities in Scotland; calls upon the Scottish Executive to provide, at the earliest opportunity, a full report to the Parliament on the impact of incorporation to date and a statement on the Executive's state of preparedness for October when the Convention becomes fully operational, and further calls upon the Scottish Executive to provide a full and detailed analysis of the ECHR implications of legislative proposals submitted to the Parliament and to consider establishing a Human Rights Commission or some other body to provide expert advice and guidance on the impact of the ECHR on public authorities in Scotland.

First, I welcome this debate and thank Mr McLetchie and his party for giving the Parliament an opportunity to discuss an important and topical issue.

Human rights and justice should always go hand in hand. That is a principle to which I am committed and I hope that it is one to which all parties, and people in all parts of the Parliament, would subscribe. Indeed, the principle is enshrined in our devolution settlement.

Before turning to the Scotland Act 1998, I should point out that there is nothing new about the European convention on human rights. As Mr McLetchie acknowledged, British lawyers were instrumental in drafting the convention. The UK was one of the original signatories in 1950 and we ratified the convention in 1951, which means that, for the past half century, successive Governments have accepted the obligation to act in accordance with convention rights. Since 1966, British citizens have had the right to take their cases to the European Court of Human Rights in Strasbourg.

So, convention rights are not new, and neither is our obligation to act in accordance with them. What is new, as a result of the Scotland Act 1998 and the Human Rights Act 1998, is that Scots will be able to raise convention issues in proceedings before our own courts, and that Scottish courts will be able to apply and interpret the convention and play a part in developing its jurisprudence. To my mind, those are entirely positive developments that are wholly in keeping with the devolution settlement.

In the majority of European countries—39 out of 41—the convention is incorporated into domestic law. Many countries, following incorporation, had similar difficulties to those that we are encountering in Scotland. I hope that no member will suggest that it should be more difficult for Scots to assert their human rights than it is for other Europeans. That, however, is what the Conservatives and Mr McLetchie appear to have argued. They appear to be saying that we should have such rights, but that those rights should be available only to those who have the time and money that can vindicate them in the Strasbourg court. We want to bring human rights home, not send litigants abroad. We want people to be able to establish and exercise those rights in a neighbourhood court, not in a court in a neighbouring country. Human rights should be available to people in Stirling without their having to go to Strasbourg.

That brings me to the Scotland Act 1998 and the approach that it takes to defining the competence of the Parliament and the Executive. As Mr McLetchie said, the position is crystal clear—neither the Parliament nor the Executive can exercise any of their powers in a way that is incompatible with any convention rights. If it is found that they have done so, the courts can strike down legislation or acts of the Parliament as unlawful.

Given the way in which the Parliament has been set up as a devolved body that is defined by statute, it is almost a legal truism that we can act only within statutory competence and vires. That means that we cannot act inconsistently with the United Kingdom's international treaty obligations—hence our commitment and subjection to ECHR.

I make no apology for preferring to live in a country in which the Government of the day is subject to human rights legislation, even if that is awkward for the Government. That is far better than living in a country in which the Government can override human rights legislation.

I would like to deal with one or two of the points that Mr McLetchie raised. There is no division between the First Minister and me on the appointment of judges. If those who have written some of the newspaper reports on the matter had examined the First Minister's address to the Law Society of Scotland on its 50^th anniversary last July, they would have seen a clear commitment to consultation on the appointment of judges. A consultation paper will be published before Easter, I hope, that will make it clear that we want greater transparency in the appointment of judges in Scotland.

There have been challenges to the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, but it must be remembered that that legislation was deemed to be within the Parliament's competence by the Executive and the Presiding Officer. I can assure Mr McLetchie that the Executive will strongly contest the challenges to that act in the Court of Session.

I want to put an important point about road traffic on the record. The case that is the subject of an appeal to the Judicial Committee of the Privy Council was one that turned on the facts of the case. The procurator fiscal will not lay evidence obtained through the exercise of police powers under section 172 of the Road Traffic Act 1988 where the driver is the suspect in a road traffic case. It should be made clear that the ruling does not prevent the police from using that power as an investigative tool. Drivers who fail to comply with the police will still be reported to the procurator fiscal. That judgment will not affect the handling of speeding offences detected by the use of speed cameras. It is useful to get that message out to the public in case there are people who think that they can flout the law on the basis of that decision.

When the Human Rights Act 1998 comes fully into force on 2 October, it will be unlawful for public authorities anywhere in the UK to act in breach of convention rights. That means that, for the first time, Scots will be able to assert and enforce basic human rights in our courts. All our institutions—Parliament, the Executive, the police, the prosecution service and the courts—will have to ensure that they comply with ECHR in everything that they do. The ECHR has, in short, been written into the constitution of the devolved Administration.

The arrangements have been criticised in some quarters, where they have been described as an accidental by-product—something that we stumbled into by mistake. Is it really being suggested that the Scottish Parliament and the Scottish Executive should be given powers to act in breach of convention rights and, consequently, in breach of the United Kingdom's long-standing international obligations?

The approach to the convention that is set out in the Scotland Act 1998 is right in principle. Indeed, in my view this could not have been done in any other way. The other part of the equation is the Human Rights Act 1998, which, as I have explained, will apply throughout the United Kingdom when it comes into force in October. The act is a progressive piece of legislation, long fought for by the Liberal Democrats, members of the Labour Party and by the SNP. As Mr McLetchie has indicated, although the Conservatives sign up to the principles of the European convention on human rights, they have always opposed its introduction into domestic law.

Under the Human Rights Act 1998, the courts will be required to interpret all legislation—whether from Westminster or Holyrood—in a way that is as far as possible compatible with the convention. That approach will take priority over common law, and precedents will be overturned if they are incompatible with the convention rights. Through the courts, we will see an increasing emphasis on human rights in the development of our common law.

As Mr McLetchie rightly pointed out, the courts will not be able to strike down Westminster legislation, because Westminster retains the doctrine of the sovereignty of Parliament. However, if the Court of Appeal or the Court of Session finds that a provision in Westminster legislation is incompatible with any of the convention rights, it will be able to make a declaration of incompatibility, and a fast-track procedure for the amendment of the offending legislation will be invoked.

I am not disputing the fact that the Scotland Act 1998 and the Human Rights Act 1998, taken together, represent a huge sea change. The provisions that I have described are designed to weave the convention rights into the fabric of decision making in law, government and public administration. Those provisions should help to create a human rights culture in which the rights and responsibilities of individuals are properly balanced, well understood and readily enforceable.

The Scottish Executive—and the Scottish Office before it—knew that we had to prepare for incorporating the convention into our domestic law, and we have done so. The Executive, the Crown Office, the judiciary, the police and others have undertaken extensive training programmes. Guidance on the convention implications of the Scotland Act 1998 and the Human Rights Act 1998 was published by the Scottish Office in April last year and was widely distributed. More detailed guidance has recently been issued to public authorities and is also available on the internet.

Last year, a high-level working group within the Executive co-ordinated two reviews across all departments to identify aspects of legislation, practice or procedure that might need to be changed. That work is now being supplemented by a detailed audit, which is systematically reviewing all our activities to identify issues where there is a risk of challenge. One of the advantages of that work is that it can take account of the emerging Scottish jurisprudence as judges in Scottish courts interpret the European convention on human rights. I am considering several areas where legislation may be required as a result of either the audit or court decisions.

It is important to make that point, because, as Mr McLetchie said, we are responding to events. Recently, there was a court case on temporary judges. It makes sense to await the outcome of that case to identify whether there was a weakness and, if so, to clarify precisely where that weakness exists in order to address it. I am sure that Mr McLetchie would be one of the first people to start jumping up and down if we tried to take pre-emptive action that proved to be insufficient or did not address the particular weakness identified by the courts—if, indeed, they identify such a weakness.

Will the minister accept that, in the legislation on the armed forces disciplinary code, Westminster is taking action in anticipation of the need to bring our law into conformity with the convention? Should not the Scottish Executive consider similar legislation in areas that might be affected in Scotland?

I am grateful to Mr McLetchie for that question, because this is a case not of either/or but of both/and. There will be occasions where it is important—for example, on the appointment and use of temporary judges—to find out the position of the courts. However, as I said, if it is necessary to introduce legislation as a result of the audit that has been undertaken, I will do so.

Mr McLetchie mentioned bail. We have taken note of the recent judgment in the European Court of Human Rights in the case of Caballero v United Kingdom and will consider our response to that. If that requires legislation, I will bring proposals to the Parliament. We are trying both to anticipate and to react. Lord James Douglas-Hamilton—I presume in anticipation of this debate—lodged 11 parliamentary questions on whether aspects of our procedures from planning to prisons were compatible with the European convention on human rights. In fairness to him and to Mr McLetchie, I should make it clear that all those questions will be answered later today.

Given the detailed audit that I have described—although it is not yet complete—the answer that will be given is that we are systematically reviewing all our activities to identify issues where there is a risk of ECHR challenge. If we believe that it is necessary to amend existing legislation in order to comply with the convention, we will bring forward proposals for that purpose at the appropriate time.

In the Conservative motion and the SNP amendment, the possibility has been canvassed of establishing a Scottish human rights commission that would have responsibility for promoting human rights and for working with the Parliament to do so. I can confirm that the Executive is considering that matter; I do not want to rule out the possibility of establishing such a body. Important questions need to be addressed about the need for such a body; about its nature, functions, remit and funding; about whether it should be statutory or non-statutory; and about its relationship with existing non-governmental organisations as well as its possible relationship with this Parliament. I am aware from meetings that the Scottish human rights forum has been considering those issues and will be putting proposals to me in the near future. I will, of course, seriously consider those proposals. As our amendment states, proposals for legislation will be brought forward in due course, if that is considered necessary. In the meantime, I welcome any views on those matters from members of this Parliament.

The SNP amendment would commit us to a human rights commission before we had given the human rights forum the chance to put forward its views. I hope that SNP members will agree that, for that reason, their amendment is premature. I ask them to support the Executive amendment, which expresses our desire to consider this important issue positively.

I should emphasise that no one can predict with certainty where challenges will come from or whether they will succeed. There are many issues on which different lawyers take different views; the final decision will always be a matter for the courts.

Let us put things in perspective. So far, convention points have been raised in some 374 cases, of which only 10 have been upheld—and some of those are the subject of Crown appeals or references. That does not suggest that our system is failing. We are being tested against a high and developing standard, and rightly so. Any justice system should welcome such a benchmark and the opportunity for continuous improvement.

I believe that the new settlement in Scotland represents a step change in many different ways, not least of which will be the promotion of greater respect for human rights. The Scotland Act 1998 and the Human Rights Act 1998 will change the way in which we think. Government and public authorities alike will take care to respect the rights of individual citizens; over time, our legal system will change for the better.

Of course there will be teething troubles; of course we will be found wanting from time to time. That experience has been shared by many other European countries, and by countries such as Canada and New Zealand, that have incorporated binding human rights into their constitutional arrangements. The experience in those countries is that in the short term there are difficulties, but in the longer term there is a process of coming to terms with a different approach and a new way of thinking.

For the Parliament and the Executive, the convention presents both a challenge and an opportunity. The challenge is to ensure that respect for human rights becomes an integral part of our thinking in developing policy and practice across the whole sweep of our devolved powers. The opportunity is to promote a genuine human rights culture in Scotland that will increase awareness among the public and public authorities alike—in other words, to ensure that respect for human rights becomes part of the fabric of our society and institutions.

We will work to ensure that the Scottish Executive lives up to those expectations and strikes a proper balance between the rights of individuals and the wider public interest—a balancing act that lies at the heart of the convention and its jurisprudence.

I move amendment S1M-610.1, to leave out from "with concern" to end and insert:

"that the obligation to comply with the European Convention on Human Rights (ECHR) has existed since 1951; appreciates that the Scotland Act 1998 together with the Human Rights Act 1998 will enable Scots to enforce their basic human rights in their own courts; notes that substantial training on the ECHR has been provided for the main justice agencies and that detailed guidance has been sent to public authorities; notes that the Scottish Executive will be considering the possibility of establishing a Scottish Human Rights Commission; and further notes that if it is considered necessary to do so, proposals for legislation will be brought forward in due course."

I would like to say at the outset that the Scottish National party starts from a position of unequivocally supporting the incorporation of the European convention on human rights into Scots law. Nothing that has happened in the past nine months changes our commitment to that in any way. I add in passing that it is refreshing to know that now when someone utters the words human rights, journalists and others sit up and take notice instead of yawning.

Recently, there has been some controversy over a court decision which stated that activities in this Parliament would be subject to court review. The SNP does not fear that. After all, if we consider it objectively, that is the way in which the vast majority of democratic Parliaments work, and it is wholly in keeping with the old Scottish constitutional doctrine of popular sovereignty. The Westminster notion of the sovereignty of Parliament has always been the notion that sat oddly in Scotland. It is worth pointing out that Westminster is the odd one out internationally. That is what written constitutions and bills of rights are undeniably about; they are nothing if not ways of enshrining rights that even a Parliament cannot override. The SNP has always argued for an independence constitution that would include both a written constitution and a bill of rights, in keeping with the international norm. I repeat that Westminster is the anomaly; this Parliament sits more neatly into normal parliamentary practice.

My colleague Michael Matheson and I were in Ireland last week, so I was interested in David McLetchie's comments about Ireland. The Irish are noticeably relaxed about the possibility of incorporation. On several occasions, people there said that if they had any concerns about incorporating ECHR, it was that the convention was probably not as robust as the human rights principles that had been built into their constitution. I have to say that, in response, we murmured that perhaps they would like to study the Scottish experience before they became too complacent.

Obviously, our experience in Scotland means that the mention of human rights causes a rather mixed reaction. Although I listened to Mr McLetchie's speech, the Conservatives have been uniformly hostile to the whole notion up to now. I note that even today's motion does not go so far as to welcome ECHR. There is a grudging acceptance that we have got it, so we have to get on with it, which is a bit like their attitude towards devolution.

On the incorporation of ECHR, we opposed the Human Rights Act 1998 because the issue is the relationship between the convention and our domestic law. The current relationship, which was introduced by the 1998 act, is wrong, and the previous relationship was preferable.

I hear what Mr McLetchie is saying, but the Conservatives' tone is one of grudging acceptance of a situation which most of us have welcomed. I sometimes wish that the Conservatives would accept the truth that such incorporation is widely welcomed in most countries. We share, however, the Conservatives' concern about the preparations that have been made not just by this Executive, but by the Westminster Labour Administration from 1997 to 1999. Once the decision was taken to go ahead with incorporation, it was their responsibility to minimise its likely impact.

ECHR was incorporated into Scots law by way of the Scotland Act 1998. During the various stages of the debate on the Human Rights Bill in Westminster in 1998, the implications of that were discussed. From what I remember, those discussions tended to centre around very specific cases that were put to us theoretically by concerned organisations. We then tried to discover whether their fears were justified.

One such debate focused on an issue related to the Church of Scotland in particular. I do not think that members really need to know the details of the debate; however, they might be interested in the comments of the then Secretary of State for Scotland, Donald Dewar, who is of course now our First Minister. On 20 May 1998, he said:

"The European convention on human rights has been available for use since 1953. I understand that it may be a little easier to get to the courts once the convention has been imported into the ambit of the domestic courts, but human rights cases are often contentious and difficult cases. The fact that, in the past 45 years, no one has gone to the European Court of Human Rights and tried to challenge my interpretation and understanding of the situation"— relating to the Church of Scotland—

"is of some significance . . . It is a little bit . . . the case of the dog that did not bark, but, if we are going to have these problems, I think that we would have at least a few yaps in those 45 years, and they have been conspicuous by their absence.

"I am not terribly impressed . . . with the idea that suddenly the floodgates will open, when no one can point me to any single change other than the forum in which the cases may be heard that will result from the Bill."—[Official Report, House of Commons, 20 May 1998; Vol 312, c 1067-68.]

Of course, hindsight is great. If nothing else, perhaps Donald Dewar's relaxed attitude to the effect of a change in forum will have undergone a radical rethink. No one could argue that the assumptions on which incorporation were presumably based were rather wide of the mark. However, there were voices even then, and in the run-up to the elections in 1999, that cautioned a more constructive approach to human rights and the challenges posed by the new dispensation.

There were also warnings about potentially adverse decisions. Those warnings came quite early and included warnings about the ruling on temporary sheriffs, which was one of the most controversial rulings. The decision was widely expected and widely predicted to go against the Lord Advocate. Yet, when the inevitable happened, it seemed that absolutely no contingency plans were ready to be implemented. That was the real failure and it has had a direct impact on the workings of the Scottish courts.

The Executive has said that rulings under ECHR have not caused chaos in our courts, but that depends on how chaos is defined. The result of the ruling on temporary sheriffs has been that, in many jurisdictions, chaos can be avoided only by rescheduling civil cases, as criminal cases work to a much stricter timetable. To argue that those who seek civil redress in the courts should get a poorer service is not good enough.

In some of our courts, the situation is little short of scandalous. David McLetchie referred to the waiting times for civil cases in some parts of Scotland. In Stirling, Fort William and Banff, waiting times have more than doubled. In other places, such as Perth and Kirkcaldy, waiting times have gone up markedly. I remind members that civil cases include cases involving custody and access and debt and reparation.

The situation is unacceptable. The Executive may not call it chaos, but I wonder how bad things will be allowed to get. I am contacted regularly by solicitors in various parts of the country who advise me that things are getting worse, not better. An ounce of preparation might have avoided some of the problems.

I hear what Roseanna Cunningham is saying. However, she mentioned that civil cases include custody and access cases. Will she accept that sheriffs principal have given clear directions that cases involving children should be accorded priority?

I do not doubt that sheriffs principal are doing their very best, but it is clear from the figures that, in many jurisdictions, they are doing a juggling act. In some parts of Scotland, the situation is causing real problems.

I know that some organisations and agencies have started to look at the problem. I know that the Association of Chief Police Officers (Scotland) has set up a working group to consider the likely implications of ECHR on police practices and procedures. I do not know how far it has got, or what specifically is being examined—I know no more about that than I do about any of the detail of what the Executive is or is not doing.

Frankly, bland reassurances are no longer adequate. People are beginning to lose trust. There are concerns about confidence that must be addressed. When I hear the phrase "compliant with ECHR", I no longer have confidence that it will turn out to be compliant. We know that more than 300 challenges have been made under the ECHR in the past nine months. I had understood only eight to have been upheld. Perhaps Pauline McNeill, my colleague on the Justice and Home Affairs Committee, knows more than I do and the figure has gone up. We can be certain that the figures for challenges and successes will increase markedly over the coming months and years.

I am alarmed at the First Minister's view. Two weeks ago, he made it clear in the debate on the Lord Advocate's resignation that the Executive's attitude is to sit back and wait for challenges and to wait for the outcome. It should come as no great surprise that such a laid-back attitude is not getting a great deal of admiration from those who think that responsibility in this area should be about avoiding challenges, and particularly about avoiding ending up in court.

Some challenges are inevitable and some will inevitably be successful. I have said repeatedly—and say again—that the age of criminal responsibility in Scotland, set, as it is, at eight years old, is almost certain to be challenged sooner or later and will have to be changed. Is a change being considered? If not, why not? It is not good enough to wait for a challenge, which we can be sure will come at a point of maximum controversy, so that, instead of being able to take a decision calmly, we will end up in one of those great tabloid brouhahas.

It is all very well to say that such a change should be anticipated, but what age would Roseanna Cunningham set to ensure that it conforms to ECHR? Surely we would have to wait until the court decided that.

It is inevitable that Gordon Jackson would ask that question. The truth is that once we decide that eight years old is not acceptable, we need to start the process of consulting to work out what is acceptable. I am not going to pull a figure out of thin air any more than I would expect anyone else to do so. At this stage, I want some reassurance that it is at least recognised that eight years of age will not stand as the threshold. I do not believe that it will. I do not think that any lawyer I have ever spoken to believes that eight will stand as far as a challenge under ECHR is concerned.

When it comes to considering the setting up of a human rights commission, the Conservative motion really means no more than that the Tories are adopting the same stance as the Executive—and I hope that we get a stronger stance from the Executive. I accept that the Executive's position may have been understandable a year or two ago, but I do not think that it is acceptable now.

A human rights commission is not some strange exotic beast. Many such commissions are already in existence. The United Nations strongly endorses them, recognising that the protection of human rights is fundamentally a national responsibility. The SNP wants a commission which would fulfil a wide range of functions. It should promote good practice, and public authorities and private bodies would be covered by human rights legislation. It should be seen not only as a provider of advice to the Executive, Parliament and other public bodies, but as fostering a wider awareness of human rights principles among the public.

Frankly, however, if my recent surgeries are anything to go by, Scots are already waking up to the possibilities of ECHR. During my most recent surgery, three people came in, individually, clutching newspapers that had covered the subject and asking whether ECHR would apply to their specific problems.

I am advised that a Crown Office human rights working group was set up in 1998, but it is difficult to find out details of the work that it undertook, what conclusions it came to or what changes were made as a result of its findings. I have read, however, that it is greatly satisfied that ECHR puts it in a better position than the defence. We are entitled to be concerned about how equitable this is: public money spent on only one side of the equation.

The human rights commission should also provide a scrutinising function for draft legislation and policy. It is most frustrating for MSPs to be routinely refused any information and detail about the advice that the Executive has received. I do not understand why that should continue to be the case.

I know that the Executive, in the person of the Minister for Justice, has not ruled out setting up a Scottish human rights commission. The problem is that neither has he committed himself to the principle. I wish he would do so, and I hope that he does so today. I know that he is waiting to hear from the Scottish human rights forum, which hopes to have prepared some sort of consultation document for mid-April. Surely, however, we can be in a position to commit not to the detail, but at least to the principle, and to proceed on that basis.

The ECHR is important for Scotland, for the people of Scotland—not just for public bodies such as the Parliament and local authorities, but for individuals as well. I respectfully hope that we will get answers to some of the specific questions posed today.

I move amendment S1M-610.2, to delete from "consider" to end and insert:

"establish a Human Rights Commission which would advise both the Parliament and the Executive, issue guidance and promote good practice in public authorities, promote greater access to justice and advise on wider international human rights obligations."

For five minutes, I was enjoying myself, listening to Roseanna Cunningham. I was agreeing with her, and I say to David McLetchie that I share her disappointment. There is something about the Conservatives' attitude that is grudging at best. The impression that they give is that somehow they do not really want this sort of legislation.

We need to remind ourselves why we have incorporated the European convention on human rights. It is, bluntly, a good thing. If we had not done so, that would mean being out of step with Europe as a whole. As Jim Wallace said, we are almost the last country to take the step of incorporating ECHR. We would also be out of step with the broader worldwide scene. There are countries all over the place which, in the past, we may have thought did not have terribly good human rights records. Now, they have a charter of fundamental human rights and freedoms incorporated into their law.

Is it to be the case that the United Kingdom and, in particular, Scotland are simply to be out of step with that? As Jim Wallace said, instead of citizens being able to go to their local court to have their rights established, will they be required to trek, with difficulty and at expense, halfway across Europe? I do not think that we should say that to people.

Apart from the matter of being in step with other countries, incorporating ECHR is a good thing in itself. I quote from the Lord Chancellor, who, on this occasion, is worth quoting:

"The Human Rights Bill . . . will be a constitutional change of major significance: protecting the individual citizen against erosion of liberties, either deliberate or gradual. It will . . . promote a culture where positive rights and liberties become the focus and concern of legislators, administrators and judges alike."

That means, in practice, that laws now need to be framed and administered with an eye on their impact on human rights. Ministers now need to inform Parliament whether a proposed law complies with the convention. The courts are obliged to consider legislation and ensure that the rights of the citizen are protected. I believe that that is a good thing. The convention puts into a law a great many basic rights for which many of us have fought for a long time. I will not apologise for thinking that that is a good thing.

In relation to the certification of compatibility of ministers, does Gordon Jackson believe that a one-line certificate of compliance is sufficient for this Parliament, or does he share the view of the Conservative party that a fuller explanation and analysis of the implication should be given to inform the debate by all members in the chamber?

I understand what Mr McLetchie means, but the difficulty with having the full legal advice analysed is that two lawyers will give two opinions, three lawyers will give three opinions and so on. The danger is that this chamber would be turned into a kind of court where those members who were lawyers would endlessly debate the legal niceties while everyone else went for a cup of tea.

Mr McLetchie said that Scotland was being used as a guinea pig. That is not fair. Scotland has a brand-new constitutional settlement. It would therefore be odd if this new legislative body were not obliged to act in conformity with the convention, particularly since that convention will apply to the whole of the UK in a few months. The alternative is that we legislate and then review everything that we have legislated on when the convention comes into force. That would be daft and we would be criticised for a lack of preparedness.

I agree 100 per cent with something that Roseanna Cunningham said: Westminster is out of step on this matter. Westminster politicians have an obsession with the sovereignty of Parliament, which is an old-fashioned view that should be changed. We are doing things in the way in which the rest of the world is doing things. In my view—I have no idea of the view of the Government—Westminster is out of step.

Roseanna criticised the Executive and said that there has been no preparation or, at best, inadequate preparation. That is not fair. Mr Wallace and the Lord Advocate can defend themselves, but the Crown Office is an example of preparedness. In 1998, it had a working party of full-time staff producing what has become the equivalent of a book—and not a bedside read either. Many recommendations have been implemented and every procurator fiscal has been trained properly in advance of the change. It is unfair to say that the Lord Advocate and his predecessors have not taken the matter seriously. Roseanna Cunningham says that there should be more transparency about the process. There might be something in that, but that does not mean that there has been no proper preparation.

It has been suggested that we should have audited the whole system. Again, Jim Wallace has told us what has been done in that area. The problem is that the auditing process to take the change into account is never-ending. It is a massive and mind-boggling exercise. Given the amount of law that there is, it is physically impossible to cover every possibility. The fact that it is impossible to anticipate every challenge and audit every piece of law makes it unfair to criticise the Executive on that basis.

What comes across most strongly in the press and in debate is the idea that the courts are in crisis because of this. David McLetchie used the word chaos, although Roseanna Cunningham said that she would not go so far. I am not complacent. I have spent my whole working life in the court, and I have many criticisms of the court process. However, this chaos theory is way over the top. There are problems and there is room for improvement, but to paint a picture of a meltdown scenario is to mislead the public.

The picture is now painted all over the country, in Perth or wherever, that people cannot get justice any more and that the system is breaking down. That is simply not true. If members go out into the country, to Perth or to Cupar, they will find justice being administered day in, day out. There is no more chaos than the normal everyday difficulties of running a court. I agree that there is room for improvement, but the reality is not the kind of meltdown scenario that people are talking about.

We have been provided with the figures: 374 challenges and 50 cases pending, of which 10 have been successful. Some issues have a high profile, such as that of temporary sheriffs. That matter was considered, it was decided that temporary sheriffs were a bad idea and they were swept away. I was delighted, as I always thought that they were a bad idea for reasons that had nothing to do with the European convention on human rights. Their number was increased for 18 years, under the Conservative Administration, which I thought was a bad idea. The fact that changes require to be made is not something to worry about.

As has been pointed out, the road traffic challenge is under appeal, and I leave the detail of that. However, let us say that Colin Boyd's appeal fails—as, on occasions, appeals do, which is not necessarily a bad thing. Such challenges and reviews are inevitable: for my money, that is how it should be. The whole point of introducing this legislation is to change those aspects of our past legal system that need to be changed. I can see nothing wrong with that, and it is impossible to deal with every potential change in advance. Jim Wallace is right—the situation is not one of either/or, but of both—and often the answer will not be very clear.

I was not being facetious when I asked Roseanna Cunningham what age she would choose for criminal responsibility, as that is a difficult decision to make. Whatever age is chosen, it will be reviewed through the courts anyway. Whether it is 10, 12 or 14, it will still go through that process. Sometimes it is necessary to wait for the court's response.

Does Gordon Jackson think that, if the age of criminal responsibility was set at eight, it would survive a challenge?

My honest opinion is that it would not have a snowball's chance in summer of surviving a challenge. However, the fact that I do not think that the proposal to set the age of criminal responsibility at eight would survive a challenge does not mean that it is not better to have the courts deal with it than pick another age that might not survive either. It is not easy to know the best way forward in that situation.

We should welcome the fact that, at times, the courts are striking the law down: that was the whole point of introducing the legislation. I sometimes wonder which way the Conservatives are heading on that issue. They say that they do not want to withdraw from the convention, and that they want the citizen to be able to use it, with the proviso that, to do so, he must take the plane to Strasbourg rather than a bus to the sheriff court. The law in Strasbourg is the law here. Mr McLetchie seems to object to the changes that this convention is introducing, and he has provided a list of them. He either wants the convention to be part of the law or he does not: it is not good enough to say, "I want it to be part of the law as long as people have to go to Strasbourg to use it".

Would Gordon Jackson accept that the previous legal relationship between this country and the convention resulted in changes to our law? I am making the point that those changes happened in a considered and measured way, in the light of the decision of the court. We were not forced into a situation in which an adverse decision here created immediate problems, as happened in the case of temporary sheriffs. The legal relationship between this country and the convention is the issue.

Of course that is right. It means that things are done more quickly. That is, however, far outweighed by the advantage for the citizen in having a matter resolved a bus ride away rather than having to go to Strasbourg. I find it difficult to understand that the Conservatives really believe in the European convention on human rights and, at the same time, do not want it incorporated into our system.

Mr McLetchie says we need a human rights commission. Perhaps so. I do not have a closed mind on that and I am glad that the Minister for Justice does not either. My difficulty is the same as the minister's. I am not sure what is really meant by the commission. As Jim Wallace said, how will it work with other bodies? Is it to be proactive or just a checking agency? There is no point in suggesting another body without a clear vision of what it will do and what gap in the system it is supposed to fill. I am not against the idea in principle but I am not sure what it would mean in practice.

I want to say very strongly that the incorporation of the European convention on human rights is a very good thing. It is to be applauded, not condemned. The motion is a wee bittie negative, a wee bittie moany. It finds fault in a way that is not helpful. There are legitimate criticisms but the incorporation is a huge change to our legal system and a steep learning curve. It is a positive change for the better and, in all the nit-picking about decisions that have gone against the Executive, we must not lose sight of that. We must insist that it is a good thing and we need to make it work. The Conservatives say that they want to make it work. I would like to hear them say that it is a good thing.

The debate is now open. Speeches should last about four minutes; I will allow an additional minute or so for interventions.

I am the first non-lawyer to speak. I do not get paid by the minute, so I will be brief.

As has been said, we support the Government's aim of protecting the rights of British citizens. Where we differ is in how we go about it. My colleagues will outline areas that have given us sufficient cause for concern to have initiated this morning's debate. I will concentrate on two areas that are of particular interest to me as a former justice of the peace and to my then colleagues.

Before coming to the Parliament, I served as a JP in North Lanarkshire. I took that honour seriously and such was my commitment that before local government reorganisation I was elected to my court area committee and thereafter to the North Lanarkshire justices committee. We formed a sub-committee to look at the on-going training needs of established and new justices, which I chaired. We had a good programme of training events for justices undergoing bench training, thanks in no small measure to the assistance of a first-class clerk of court. We were keen to maintain our high standard by organising training on new policing techniques and changes in the law.

We well knew then that the incorporation of the European convention on human rights would impinge on our practice even at the level of district courts. I strove to organise a series of training events, including a day on the theme of "Human Rights, Inhuman Wrongs"—a catchy title, I thought. Working on the trickle-down theory, we inquired about the training that was being undertaken by the Crown Office in anticipation of the change. The silence was deafening. Learning of that lack of preparation at the highest level, I feared the worst. Trouble loomed and we have not been disappointed—the warning was not heeded. Much of the bread-and-butter work of the district courts is in disarray. Some commentators might characterise events since the ECHR was incorporated as shambolic—I will not dwell on other descriptions.

The effect has been that 126 temporary sheriffs have been deemed illegal, thereby reducing the number of experienced sheriffs on whom those of us at the lower end of the scale can call for advice and input to training. Some 80 justices of the peace were removed from the court rota because they were ex officio, thereby increasing the difficulty of providing court cover in the district courts. Many good JPs have been cast aside—during my training, one of my supervisors was the SNP group leader in North Lanarkshire. Their removal puts pressure on the remaining JPs, none of whom does the work for the money, as the honour is unpaid.

I understand that in Edinburgh on Saturday the Minister for Justice addressed the District Courts Association conference on human rights. I am sorry that I missed his speech, but I had a surgery, and something that was happening in Ayr caught my attention as well.

Our motion calls for

"a statement on the Executive's state of preparedness for October".

I hope that that will be considerably better than the experience that I had in my former role. Perhaps the minister will be mindful of comments about statements being made in the public domain before being announced in Parliament and will tell us what he has in mind on reviewing the role of JP courts.

Briefly—I know that others will be interested in this—I want to cast our spotlight again on the children's hearing system. Recently I received a letter and explanatory booklet from the children's panel chairmen's group. I hope that the minister will address the concerns that have been expressed about the implications of the ECHR for that aspect of our highly respected and much envied system of dealing with juveniles. I look forward to hearing what he says.

I was fascinated to gain an insight into Roseanna Cunningham's surgeries—surgeries in rural Scotland are clearly very different from those in urban Scotland.

Like Lyndsay McIntosh, I think that it will be useful to move discussion away from it being a legal debate. I do not underestimate the job that lawyers and those with legal training do when considering a motion such as this, but it is important to point out, from a lay perspective, that this is a fundamental issue, which goes beyond lawyers and is about giving rights to individuals in our society. We should not be ashamed of incorporating the ECHR or of the consequences and problems of incorporation.

It is apposite that we are debating the issue on the day on which—shamefully—the Home Secretary has allowed General Pinochet to return to Chile to escape the consequences of his actions in denying others their human rights. It is important that we put what has happened today in the context of the denial of human rights. The debate is about ensuring that people in our country are given rights that people in Chile were denied by people such as General Pinochet. I hope that the incorporation of the ECHR means that Scotland and the rest of the UK are prepared to say that such behaviour is unacceptable and that our people should have those rights enshrined in law.

I also take pride in saying that the problems that we face in Scotland, which will soon be repeated in the rest of the UK, are a consequence of devolution. I take pride in the fact that, yet again, we are leading the way and that we are prepared to face up to the consequences of devolution. Although we have taken pride in our legal system and in the way in which people in this country have been able to exercise rights that others have not been able to, we should also admit that we are not immune to change or beyond reproach.

Today we have heard speakers from various quarters admit that there is room for improvement. Although David McLetchie's tone was negative and grudging, he made some suggestions that are worthy of more detailed consideration. Gordon Jackson and Roseanna Cunningham also identified areas where they believe improvements could be made. Let us take some pride in the fact that we are facing up to our responsibilities.

Like other members, I have an open mind on whether there should be a human rights commission, but I want to be persuaded not only of the value of such a commission, but of whether it can make a valid contribution. We should not underestimate the role of this Parliament in carrying out some of the work that has been suggested. I know that the Justice and Home Affairs Committee has a heavy work load, but I do not underestimate the role that it could play in ensuring that human rights are not just embedded in our Parliament and legal system, but promoted beyond them. The Justice and Home Affairs Committee has shown what a good, hard-working committee can do, and it could do much of the work that has been suggested for a human rights commission.

Will the member take an intervention?

No, I am about to finish. I want to echo Jim Wallace's point that the promotion of a human rights culture in Scotland is fundamental. We must respect human rights and ensure that they become part of the fabric of life here. If we do not take them seriously, people such as Pinochet will be able to get away with what they have done.

For a fleeting moment during Gordon Jackson's speech, I was of the mind that the problem is not with the ECHR, but with lawyers. We might not be having today's debate if it were not for the intervention of lawyers.

Having said that, I would like to focus on the issue of a human rights commission, because I hope that something positive will come out of the problems that we have had with the incorporation of the ECHR into Scots law. Although this is the first time that we have debated the issue in Parliament, it is by no means a new issue. For some time, a number of organisations have pressed for the establishment of a human rights commission.

I will deal briefly with the Conservative motion. Although I welcome the suggestion that the Executive should consider the benefits of a human rights commission, the idea that that commission should be responsible solely for providing

"expert advice and guidance on the impact of the ECHR" is extremely limited. As I will show later in my speech, the role of a human rights commission is much wider than that.

The first human rights commission in western Europe was recently established in Northern Ireland. The Irish Republic is not far behind—its Human Rights Commission Bill is due to be passed in the next two months, and in the next year it expects to have a human rights commission up and running. There are similar commissions throughout the world, notably in Canada, Mexico, South Africa, India, Indonesia, the Philippines, Australia and New Zealand. All those countries have established human rights commissions to date.

There is a perception that human rights commissions are associated with emerging democracies, particularly countries where there has been considerable civil unrest and some social upheaval. The human rights commission in South Africa is a good example of that. In such countries, human rights commissions play an important role in developing a human rights ethos and in healing the divisions that caused the problems in the first place. In other countries that are considered to be more stable democracies, human rights commissions play an extremely important role in considering issues of common law and in ensuring that human rights are both protected and promoted. Those human rights commissions have both a proactive and a monitoring role, to ensure that human rights are not violated.

The Minister for Justice said that he would like to hear more about how a human rights commission would work and what its structure would be. Considerable work has already been done on that, particularly in relation to the Paris principles, which were drafted in 1991 and endorsed by the United Nations General Assembly in 1993.

The Paris principles are not specific on the model for such a commission—we do not have to dwell on that—but are clear about the principles that would underpin any human rights commission. The principles state that the key role of such a commission is both to promote and to protect human rights. They leave considerable discretion to the nation state with regard to the model, but say that the commission not only should be able to ensure that human rights are promoted and protected, but should be provided with powers to recommend to Government that general and specific violations be investigated and reported on. Under the principles, the commission must be independent of the Government, to ensure that its position in undertaking that role is not compromised.

I welcome the fact that the Executive is open to considering the benefits of a human rights commission and I hope that it will pay regard to the Paris principles, to ensure that any human rights commission is truly independent of the Government, so that it can promote human rights effectively.

The Human Rights Act 1998 will be implemented this October; its provisions are considerably wider than those of any other anti-discrimination legislation that deals with race, religion or disability. We have commissions to deal with those specific areas of discrimination. Given that, a massive vacuum has been left in relation to human rights in Scotland and that vacuum must be filled. The most effective way of achieving that would be by establishing a human rights commission in Scotland. To Hugh Henry, I would say that we are not ahead of the game, but we could be if we established such a commission in Scotland.

First, I must declare an interest in respect of my membership of the Law Society of Scotland, and my legal consultancy with Ross, Harper and Murphy—not least because my colleague Cameron Fyfe is running what is likely to be the test case on children's hearings.

This has been one of the Parliament's best debates, with extremely good speeches from all parts of the chamber. Many of the issues have been addressed. I pay tribute to David McLetchie and the Conservative group for giving us the opportunity to debate the subject.

A number of interesting points have emerged from the debate. There seems to have been a slight movement on the Executive's part on the question of a Scottish human rights commission. I know that Jim Wallace is personally committed and sympathetic to such a commission, as indeed are other Liberal Democrats, whose commitment to that cause has emerged over quite a long time. More interesting, in some ways, is the fact that the Conservatives—not perhaps noted over the years for their forward thinking on some human rights issues—make a commitment in their motion to the establishment of something like a Scottish human rights commission. That is significant, notwithstanding the rather limited remit for that commission, which David McLetchie described. It is also significant, judging by the excellent speeches of Gordon Jackson and Hugh Henry, that there seems also to be an open mind on the Labour benches on a Scottish human rights commission.

I want to pick up where Michael Matheson left off, in support of a Scottish human rights commission. A few weeks ago, Bryce Dickson, the Northern Ireland human rights commissioner, spoke to the proposed cross-party human rights group. David McLetchie was good enough to come along and I like to think that that was when the seed of the idea was planted in his mind. Anyone who heard Bryce Dickson on that occasion could not fail to be aware of the commission's importance in the developing process in Northern Ireland. Of course, Northern Ireland has its unique features, but it is a civic society, just as Scotland is. Notwithstanding those unique features, Northern Ireland needs human rights in the way that Hugh Henry described—not as a matter for the law or for lawyers, but as a matter for individual citizens across the gamut of civil society.

I will dwell a little on that particular point. It takes courage for a Government to establish a human rights commission, as no one likes to fashion a rod for their own back. The commission should have the power to investigate on its own initiative cases of alleged human rights violations. It should have the power to conduct wider-ranging inquiries on more general human rights issues. Some people have suggested to me that some of the more specific investigations that have taken place in Scotland, from Orkney onwards, might have been avoided had a commission been in place, as it could have taken such issues on board. The commission should have powers to investigate, to compel witnesses and to require the production of documents. It should also have the power to support complainants who bring court proceedings, which is a well-established line of development, if I may call it that, that exists already in race relations, in the new disability commission that is being established and so on. It is important that the commission should also have the right to scrutinise legislation, which was David McLetchie's central point.

I invite the Opposition parties and members of the Labour party, who may still have doubts, to consider and discuss the matter. I invite them to speak to the Scottish Human Rights Centre, which is the expert in this field, or to Amnesty International, which also knows a lot about it. I ask members to join those of us who have argued this cause for a while in building on the work of the Scottish Human Rights Centre, which will make representations to the Executive soon. Perhaps the minister will receive a cross-party deputation from members on the matter of a human rights commission.

We must try to move the issue forward, with a view to achieving progress, if at all possible, by 2 October, when the Human Rights Act 1998 will come into force across the UK.

Ultimately, to revisit Hugh Henry's perceptive point, this issue is not just about lawyers—it is about human rights, citizens' rights and the rights of the individual in our new democracy in Scotland. A human rights commission could go a long way in realising human rights in a way that has not been the case to date.

I ask members to consider, individually and collectively, the establishment of a human rights commission, to investigate and to give their support to the concept, on which the Government has already expressed its general support.

We should take this opportunity to reaffirm the Parliament's profound belief in the fundamental freedoms and human rights that are enshrined in the articles and protocols of the ECHR.

Many members have been part of the movement that championed the cause of human rights and civil freedoms, whether that involved the right to join a union, the right to privacy, the right to define one's sexuality or the right not to suffer discrimination. That movement was about being part of a worldwide community, which signed up to basic rights around the world.

For me, the debate is about recognising the magnitude of the constitutional settlement's interface with the Human Rights Act 1998. If our law is challenged and is wrong, that is the point of signing up to the convention. We have been accused of a lack of preparedness and it has been suggested that the convention will overturn, or have a major impact on, our justice system.

The starting point is that the convention was drafted at the end of the second world war. The treaty was ratified in 1951 and is now supported by 40 countries.

Alan Miller, a leading authority on human rights, states that

"practitioners should familiarise themselves not only with the past almost 50 years of Strasbourg jurisprudence but also the whole body of international human rights jurisprudence".

It is important to recognise that the convention will affect public bodies and tribunals, and that all lawyers, sheriffs and citizens will also have to familiarise themselves with the convention and with the impact that it will have on our law, which is no mean task.

Apparently, we all welcome the convention. While I appreciate that the Conservatives said that they support the convention, I am not clear whether they support it per se, or whether they support its incorporation into our law. Perhaps Lord James Douglas-Hamilton could address that point when he sums up.

We have signed up to good principles: no one shall be subject to torture or held in slavery and everyone shall have the right to liberty and the right to freedom of association when joining a trade union. As Mr McLetchie said, lawyers can be quite creative. It is no wonder that there are many challenges, but few to date have been successful. I welcome the decision on temporary sheriffs. It was a good decision and many in the legal profession welcome it. It demonstrates the usefulness of the convention.

How does a Government prepare for such challenges? We should consider a human rights commission. We should report to Parliament on where we stand on auditing and proofing our law. The important question is whether our law is compatible with the ECHR. We cannot fundamentally alter the outcome of that question; either it is or it is not.

There are many positive things about signing up to the convention. No longer will individuals have to go to Strasbourg to enforce their human rights; they can do it here at home, and that is an important individual freedom. The ECHR will produce better law because it will give people the right to an independent trial and the right to have their case heard in good time. Only last week, we read reports of a recent case in which an individual was able to rely on that right.

Incorporating the ECHR establishes our country as part of the international community that is setting a trend of human rights. It also goes some way towards isolating countries that violate human rights. I support what Hugh Henry said about that.

The freedom to join a union is important. If that freedom had been enshrined in our law at the time, the Thatcher/Major Governments would not have been able to force through the anti-trade union laws that were passed during that era.

Does Pauline McNeill accept that it was a decision of the European Court in Strasbourg that led to the outlawing of aspects of the closed shop, and that it was Conservative conformity with the provisions of the convention that removed that blot on the industrial landscape?

As Mr McLetchie knows, the point that I am bound to make this morning is that, if we had had the human rights convention during the Thatcher/Major Governments, those Governments would not have been able to introduce the anti-trade union laws. However, I know that his party has now departed from that.

Roseanna Cunningham—who has now left the chamber—talked about people who have come to her surgery. Although the impact of European Community law has not been the same as the impact of the convention, in my former life as a trade union official, I had thousands of members coming to ask me about the impact of European law on their employment rights. That is nothing new.

The incorporation of the ECHR will establish a floor and not a ceiling for human rights. It is about the right to personality, about rights and duties not being dependent on the grant of the state, and about enjoyment of rights by the community as a whole. It is about individuals not standing alone but being members of society and being able to counteract the power of the state that they live in. It allows the person the right to live.

We are running about 20 to 25 minutes short. It is my intention to take lunch early and I hope that the Labour whips will confirm with the business managers that that is acceptable.

I am delighted that the Scotland Act 1998 incorporated the European convention on human rights. I welcome the convention becoming fully operational in October this year. In this country, when we consider human rights, we think internationally. However, we should recognise that protection of human rights is primarily a national responsibility. It demonstrates a lack of commitment to the principles of human rights to shirk that national responsibility or to allow the perception that Europe is to blame every time problems arise in our existing institutions and structures.

It is clear that the Executive and the UK Government did not pay enough attention to the consequences of incorporating the ECHR. They may indeed suffer further problems up to and beyond October. In fairness, however, we cannot be aware of all the problems that may yet emerge. Practitioners everywhere are scrutinising current and proposed legislation and practice, checking compliance with the ECHR. The introduction of that counterbalance to those in power in favour of individuals and independent organisations is to be welcomed, although it may lead to some unpredicted consequences.

As an example, members may not yet be aware of the potential challenge to the plan of the Minister for Communities to extend the right to buy. It is not unreasonable to suggest that forcing housing associations—particularly those not in receipt of public funds—to sell off their housing stock would fall foul of the convention. I will not be sorry to see the minister's harmful proposals defeated in the courts if Labour members betray their convictions and support the minister.

If the European convention on human rights is to be properly incorporated into Scots law, Scotland needs its own human rights commission in the form described in the Scottish National party amendment. The role of the commission would be to

"advise both the Parliament and the Executive, issue guidance and promote good practice in public authorities, promote greater access to justice and advise on wider international human rights obligations."

The commission should have powers and objectives consistent with international standards, as laid out in the Paris principles referred to by Michael Matheson, as adopted by the UN Commission on Human Rights in 1992, and as endorsed by the UN General Assembly in 1993. The model is there. We must establish a system of monitoring human rights abuse, and provide assistance for individuals and groups to pursue claims through the Scottish courts. We must ensure that human rights education is established in schools and for public servants.

Members may recall last year's controversy over the World Trade Organisation talks in Seattle. Had they gone as planned by Europe and America, we would be on the way to what has been described as

"the constitution of a single global economy", providing multinational corporations with a mechanism for enforcing their interests, even when they run counter to domestic legislation. The UK Government supports that, while the Scottish Executive colludes. Would not it be ironic if the Executive now refused individual Scots and Scottish organisations an equally effective mechanism for protecting their rights against action by this chamber or by the Westminster Parliament?

I repeat my commitment to the principles of the ECHR. Scots law has a tradition of sovereignty, which rests not with royalty, nor with Parliament, but with the people. Human rights belong inalienably to all of us, and should be monitored independently of the Government. I urge the Executive not merely to consider the possibility of establishing a Scottish human rights commission, but to commit without delay to its establishment.

If we start with the commonly held precept that we all believe in human rights, we should now examine exactly what we are trying to illustrate in our motion. We are trying to demonstrate our irritation and concern at the way in which the incorporation of the European convention on human rights into Scots law has been dealt with. The irritation is highlighted by the fact that on this issue, like on so many others, the Executive acts precipitately and without sufficient thought. Many examples of that could be cited. The irritation is overshadowed, however, by our chief concern—the impact that incorporation of the convention has already had on Scots law, and the potential that it has to impact more deeply.

Some in this Parliament are better qualified than I am to give a lecture on the history and evolution of Scots law from Justinian in Rome to Stair and Hume, and on the way in which our law has evolved to the benefit of the people of Scotland. Our law has been made by court decisions. The common law of Scotland represents the view of the people of Scotland, and where law has been incorporated in statute, it has been on the basis of decisions taken by an elected Government which, over the centuries, presumably reflected the views of the Scottish people.

Without sufficient thought, we have incorporated into Scots law regulations that have created a sort of hybrid. The basic principle of Scots criminal law has always been that the rights of an accused person are largely paramount. The presumption of innocence, and the other aspects of Scots law that are important to us, have always been the chief consideration of the courts and the legislature. No one wants to detract from that, but we must consider the effects of incorporation of the ECHR, how it is inhibiting the prosecution of criminals and how it is interfering with and disrupting the court system. We would be failing in our duty if we did not flag up these concerns.

Others have dealt with the cessation of temporary sheriffs. That system worked satisfactorily and well; it was a classic illustration of the old saying, if it ain't broke, don't fix it—but the ECHR prohibited it from continuing.

Does Mr Aitken accept that the problem was not in relation to temporary relief, which the system of temporary sheriffs was first introduced as, but in relation to the increase in the number of temporary sheriffs—introduced primarily as a cost-saving measure by the Conservative Government?

If Mr Brown examined the figures, he would find that the increase in the use of temporary sheriffs started prior to 1979. I accept that the use of them was, perhaps, becoming excessive. The fact remains that the system generally worked.

We have seen how the rules of evidence—particularly with regard to the requirement in section 172 of the Road Traffic Act 1988 not to have self-incrimination—have had an adverse impact. I think that there will also be a difficulty with regard to police powers, and the juvenile justice system is already under challenge.

All those matters should have been anticipated. At this late stage, a proper appraisal of the impact of the convention should be brought before Parliament. The Conservatives also want the Executive to suggest remedies as to how it will overcome the difficulties and inhibitions that have been placed on it by incorporation.

Human rights are, of course, an evocative issue. No one in this Parliament—or in Scotland—would suggest that there is anything wrong with banning torture or detention without trial. That is the overstatement of a sound case, but other aspects of the convention show a marked lack of common sense and street sense. Members should consider, for example, the powers of the police in detention and handcuffing. Those powers should be used in a limited and restricted manner, but what seems common sense in the calm, rational, detached environment of a Brussels committee room will not inhibit a drunken gorilla at 11 o'clock on a Saturday night at Bridgeton Cross.

We must know what the situation is and the likely further effects of incorporation of the convention into our law. I accept that some cases have gone to appeal, but there are a lot of unanswered questions about what is to happen in the future. The Executive has failed lamentably to address those questions. Unless it addresses them, highlights the possible difficulties and underlines how it intends to underpin Scots law to cope, human rights legislation will be viewed with considerable suspicion by members of the public and Scots law—the system in which many members of this Parliament have practised, fairly lucratively, over the years—will be under threat.

I am sure that if the debate finishes early today, it will not be because MSPs or people in the wider community do not feel that human rights are important; it may, perhaps, be because they thought that legal argument and lawyers would dominate the debate. At the start, perhaps that was the case, but the issues that have been discussed by others show that the matter goes much wider than arcane legal debate and affects every one of us in Scotland.

It must be remembered that the ECHR grew out of the post-war European reconstruction effort against a backdrop of state fascism and growing communist totalitarianism. It is provision for the individual citizen against the erosion, deliberate or gradual, of liberties by the state.

David McLetchie gave a lengthy list of possible challenges to existing Scots law and practice that may take place under the ECHR. He also stated that the Tories would not have incorporated the convention into our domestic law. As the Minister for Justice pointed out, that would not have prevented challenges under the convention; it would only have prevented challenges in our courts.

Prior to incorporation, a person could apply to the European Court of Human Rights in Strasbourg only if they had exhausted all their rights of redress under existing United Kingdom statute. In other words, an applicant had to establish that the UK had failed to honour its obligations under the convention to protect, in its domestic law, its citizens' rights. David McLetchie acknowledged that and highlighted corporal punishment and parental chastisement, both of which are issues on which our contemporary practice was found to be incompatible with the convention. I referred to that in last week's debate on the Executive's current consultation on parental chastisement.

Through incorporation, the convention becomes part of our domestic law. It creates a direct right of action in our courts and provides a mechanism for amendment of any domestic legislation found by our courts to be incompatible. The principal arguments for incorporation are not just about giving people access to their convention rights in our courts, but about creating a human rights culture in our country. In such a culture, individuals are aware of their rights and responsibilities and public authorities comply with the convention rights not because they must, but—perhaps more significantly—because they believe in them.

David McLetchie spoke of possible challenges to our children's hearing system under the European convention. Nicola Sturgeon of the Scottish National party questioned the First Minister on that a fortnight ago, during question time. David McLetchie is right when he says that our unique system of juvenile protection and justice is the envy of many countries but, 30 years after its introduction, it remains unique—no other country has introduced a similar system.

I do not say that to deride the children's hearing system. Having worked in it for more than 14 years, I see many advantages in the welfare principles on which it is founded and its use of lay members as opposed to the justice model that is used by other countries, but the Kilbrandon report on which the system is based was commissioned in the 1960s. It is perhaps now appropriate for its workings and composition to be revisited. The hearing system does not fully conform to the United Nations Convention on the Rights of the Child although it is more than 10 years since the UK Government ratified that convention.

David McLetchie spoke of possible difficulties with the children's reporter. I would add that there may also be difficulties with the grounds of referral for a hearing. Because it is founded on a welfare rather than a justice principle, the final disposal often bears little relation to the original grounds on which a child or young person appeared before a hearing. However, those objections do not necessarily invalidate the hearing system. If we are to maintain that our unique system is robust and does a good job for children and their families, it is important that we can demonstrate that, rather than repeat like a mantra that children's panels are intrinsically good and do not require to be scrutinised.

As Gordon Jackson said, the European convention is a good thing. Today's comments by the Tories reflect their regret about the incorporation of the convention into our domestic law. Like the vast majority in this chamber, I support its incorporation. It essentially mainstreams human rights and brings us into line with more than 40 other countries. I therefore welcome the incorporation, the UK Parliament's decision to place it at the heart of the Scotland Act 1998 and the Executive's commitment to take forward the principles of the convention into our future law.

I begin by endorsing what Hugh Henry said about today's decision on General Pinochet. That will cause astonishment among the editorial staff of the Paisley Daily Express , but they will just have to live with it.

Part of the problem, in some cases, is that of perception rather than reality. Professor Christopher Gane of the University of Aberdeen said:

"The Government's attitude to human rights seems to be developing some of the characteristics of its attitude to devolution—support for the idea in principle, dwindling in the face of its implications in practice."

He may be talking about the UK Government, not ourselves. Gordon Jackson made the point that meltdown was not really happening.

In the context of public perception, I cite the following areas of difficulty, some of which have already been mentioned: temporary sheriffs; the anomaly of the Lord Advocate being the chief prosecutor and having the power to appoint judges and sheriffs; the lack of legal representation in the children's panel system; the right of silence; police surveillance; warrant sales; and the instruction to justices of the peace who are councillors not to proceed with prosecutions.

David McLetchie—being a lawyer—said that lawyers are very creative. They are also extremely expensive. [MEMBERS: "No!"] Yes. Normal citizens such as me like to keep well away from them. I wonder how much it has cost the Executive to plough its way through the morass caused by its failure to plan ahead and its embroilment in matters of legal detail. Will the Lord Advocate give the chamber an indication of what the cost to date is of the process? Might we also be given some idea of how well lawyers might do if the debate is carried on as we move into other areas of potential conflict?

I will list some such areas. Access to justice is a right and the limitations of the legal aid process are potentially in contravention of article 6 of the ECHR. The appointment of a commissioner for freedom of information might be challenged, depending on which body appoints that commissioner. Prison officers have no right to strike. The appointment by the local authority of the clerk to a district court could be judged to compromise the clerk's objectivity. Compulsory workplace drug testing could be challenged under the rules on individuals' right to privacy.

All those issues could lead to conflict between the current legal situation in Scotland and the ECHR. The problem lies not in the principles of the ECHR—which all members endorse—but in the fact that insufficient steps have been taken to pre-empt conflict with it. Today's debate will—as we have heard from Jim Wallace—concentrate the minds of the Executive on the matter. I am delighted that an audit of possible pitfalls is under way.

The age of criminal responsibility—I will not suggest a specific age—has been touched on. Gordon Jackson said that lawyers could battle that issue out and that if the Parliament picked an age, somebody might still want to battle it out in court. We should minimise that possibility. The chances are that if such a thing happened, it would be in a situation such as the James Bulger case, when the tabloid press would be running wild. It is difficult to make the best and most objective judgments in such circumstances.

It would be better if issues such as those I have mentioned were dealt with now, partly to pre-empt difficulties and particularly to lay down legal criteria calmly and objectively. Strathclyde police have made a minor change to their procedures. The police are able to hold suspects for six hours without a lawyer, but that is in contravention of article 6 of the ECHR. Strathclyde has changed its procedures to overcome that contravention.

The Executive has given the public the impression that it has stumbled into a minefield of its own making. I am pleased that it knows it is in that minefield, I am pleased that it is trying to do something about that and I am pleased to have taken part in the debate.

On behalf of lawyers on all sides of the chamber, I would like to point out that Nelson Mandela was a lawyer, but I have never yet heard anybody criticise the large fees that he is alleged to have charged before spending a generation languishing in Robben Island.

I am sorry, Kenny.

I welcome the long overdue incorporation of the ECHR and I welcome the generally consensual tone of the debate—albeit grudgingly consensual on the part of the Conservatives.

I will deal later with the incorporation of the ECHR in this country's law. I do not intend to rehearse the criticism about implementation that others have already made today and which I have made previously. I stand by the averment that in some, if not many, instances the Executive has been caught unprepared and ungowned. I want to address the philosophical reasons for supporting incorporation of the ECHR and the amendment to expand its remit and role to establish a human rights commission.

Why is a human rights commission needed? The Deputy First Minister said that the matter presents a challenge and an opportunity. I agree. I also believe that that should—as Roseanna Cunningham said—dovetail with a written constitution and a bill of rights. It is nearly 25 years since I embarked on studies for a law degree at the University of Edinburgh. I studied opaque subjects such as constitutional law and jurisprudence, and I was astonished at the absurdity of the situation in the United Kingdom, in which Parliament is sovereign. Recently I discussed that briefly with Gordon Jackson.

It seems utterly nonsensical that in the 21^st century a Government could—theoretically—bring in legislation to outlaw all those with blue eyes or who happen to be beneath the height of 5 ft 4 in. It may be purely theoretical, but if a Parliament is sovereign, that is what the Government could do.

I believe in the separation of powers, although that is a different matter, and the protection of the rights of the individual. It is possible—Scott Barrie commented on this—to have democratically elected fascism. Recent events in central Europe have resulted in Governments taking power that might not pay due cognisance to human rights. We must ensure that we protect the individual against the excesses of a Government that may be elected with a democratic mandate, but which might chose to exercise powers that conflict with the legitimate rights of the individual.

The Deputy First Minister was correct to point out that we used to have the right simply to go to Europe, whereas we now have the right to challenge a ruling. We may have a fast-track procedure. A fast-track procedure is better than a no-track procedure or an outside-track procedure. I have been a practising lawyer and had people approach me, looking for advice and assuming that they would be able to take their case to Europe. I have had to say to them that they need to wait five years or more, while they exercise every avenue of appeal available to them in Scotland and the United Kingdom, and an inordinate amount of time after that while their case is processed. A procedure that will accelerate that process is long overdue.

There have been questions about the implementation of the European convention on human rights. I do not blame that on Europe—there is no need to bring in any element of xenophobia. The problems have come about because of the way in which we have implemented the convention and because in many instances we were philosophically wrong. I do not want to rehearse the problems of implementation that others have dealt with, but we must consider that, in some instances, it was not undertaken correctly. The situation surrounding judicial appointments was not only handled wrongly; it has been wrong in Scotland for generations. We need to address that.

We also need to address the age of criminal responsibility—sooner rather than later. Scotland might find itself in a position similar to that which followed the tragic shooting in Michigan by a six-year-old. Were the child three years older, would he face a murder charge for shooting a classmate? We must consider whether a child of eight or nine should face a murder charge for such an action and be put on trial, or whether the parents—or collectively, society—has a deeper, underlying responsibility.

We should welcome what has come from Europe. We should see this as an opportunity to address matters that are at fault. There have been changes in Scotland; the introduction of judicial reviews has been of great benefit, allowing individuals to take action against authorities where previously immediate redress was not possible. That is why I welcome the call for a commission in the SNP amendment. That would put the onus on being proactive. The concept of the commission would need to be fleshed out—skin and meat need to be put on the bones of the idea—but it would allow us to be proactive and enable other public bodies to initiate matters, rather than simply react to judicial reviews and court decisions.

We heard, earlier, that 39 of the 41 nations that signed the convention have incorporated it into their national law. I agree whole-heartedly with Roseanna Cunningham that Westminster is now the odd one out.

David McLetchie made something of the Irish situation. My understanding is that Ireland has its own bill of rights that is in passage, as Michael Matheson so eloquently described it. I have a feeling that the Conservatives do not really know what to do or say on the European convention on human rights; they are happy with the convention in some ways, but they do not want to incorporate it.

I welcome the measured tone of David McLetchie's remarks, which were in marked contrast to those of his colleague, Phil Gallie, who, in a recent press release, said:

"The decision to incorporate . . . must surely go down as one of the worst decisions in recent political history."

Mr Gallie exceeded even himself for hyperbole in that statement.

David McLetchie complained that the Executive is slow and complacent, yet we heard Bill Aitken talking about the Executive being precipitate. I do not think that the Conservatives know quite where they are.

I said that the Executive acted in haste in arranging incorporation; Mr McLetchie said that it was slow in reacting once problems became apparent.

I accept Mr Aitken's explanation; but I still think that there was some contrast between the two remarks.

This major constitutional change, which has been fought for for many years, first appeared in my party's manifesto in 1979, when we called for incorporation. The Conservative party manifesto of that year spoke of a

"Bill of Rights . . . which we shall wish to discuss with all parties."

There has been a deafening silence ever since.

We welcome incorporation because, under the convention, rights are now no longer a remote European concept; they have real meaning here in Scotland. That is immensely important. Anyone seeking the protection of the convention had previously to go to Strasbourg and I believe that, on average, cases took from five to six years to determine. According to Charter 88, the costs could be up to £70,000—perhaps even more. There is no doubt that incorporation will improve access to justice.

As we have already heard, although the United Kingdom has been bound by the ECHR since 1951, convention rights are now directly enforceable in Scottish courts. That must be welcomed.

During this debate, much has been made of challenges made on ECHR grounds; but those challenges indicate—to me at least—a commitment to human rights and an open and accountable Government. Again, that is something we should welcome. It is surely good that Governments, administrative processes and court procedures are open to challenge.

I would like to draw some parallels with the new deal era in the USA in the 1930s. Much of Roosevelt's new deal legislation was struck down by the Supreme Court. One in particular, the Scheckter case, was all about—for goodness' sake—poultry in interstate trade. The point was that the mechanisms that had been introduced in the legislation were found to be defective and had to be corrected.

Just as there were major constitutional and economic changes in the USA in the 1930s, there are major constitutional changes involved in the current legislation; and just as it was right that changes in the context of the USA in the 1930s were open to challenge, it is right that legislation should be open to challenge in our context today. It is important for Governments to be held accountable.

My understanding of the challenges is that, yes, some of them are indeed on significant issues—temporary sheriffs and section 172 of the Road Traffic Act 1988, for example—but five out of the eight or 10 challenges have been concerned with inordinate delays in bringing matters to court. Five of the challenges have been on that narrow issue—although it is welcome that there should be a challenge when there is an inordinate delay in bringing a matter to court.

We welcome the Executive's commitment to an audit of ECHR matters, and we await a progress report to Parliament in due course. We also have some concerns about civil cases. The Executive must not lose sight of the fact that some civil cases that involve claims for compensation may appear to be about only money, but they often involve considerable stress and anxiety for the participants. We need to put more effort into finding permanent sheriffs to ensure that such cases are heard.

I reiterate what Robert Brown said: we are committed to the establishment of a human rights commission and we would welcome further progress in that area.

I am terribly glad that Kenny MacAskill spoke up for lawyers; I always feel less popular than a traffic warden. Furthermore, I should tell Lyndsay McIntosh that, as far as I can gather, my plumber also charges by the minute.

I will begin with a general view of the ECHR. As Roseanna Cunningham rightly said, the SNP thoroughly welcomes its incorporation into Scots law. It makes the protection of human rights an international responsibility and, as such, sets Scotland in its historical place as an internationalist nation.

There have been problems with certain aspects of the ECHR. For example, article 6, which concerns the right to a fair trial, has caused the difficulties with the appointment of sheriffs. We have also raised the problem of the age of criminal responsibility invading the children's panels, which Scott Barrie quite rightly highlighted as one of the credits to the Scottish judicial system.

Article 8, which concerns respect for people's private and family life, home and correspondence, impacts on surveillance, whether by the police or by others. Furthermore, warrant sales might be in breach of article 1 of the first protocol of the convention, which concerns the right to peaceful enjoyment of possessions.

Gordon Jackson asked us to step aside and not agree that Scotland had been used as a guinea pig in the application of the ECHR. Although I do not want to overwhelm my summing-up by pointing out the Executive's lack of preparation, it is disingenuous to say that every step had been taken to avoid any likely impact of the convention. Perhaps Gordon has read the legal advice that I have constantly called for.

On 17 February, in the debate on the appointment of Mr Boyd as Lord Advocate, the First Minister said:

"Of course, there have been problems with the introduction of the European convention on human rights. In a sense—and I hope that this will not be misinterpreted—the point of introducing it was to bring about change."

Fine, but he went on to say:

"I say this quite genuinely: taking the children's panel issue as an example, I am not sure how challenges in the court can be guarded against. That cannot be done. Cases must be tested in the courts."

The trouble is that we felt that everything was being tested in the courts and that advance steps were not taken on certain issues to protect against such a situation. It is all very well to say that most cases failed in the courts; the major cases did not. Temporary sheriffs became a major issue, as did the Ruddle case. It is the quality, not the quantity, of the problems that is important.

I have asked ministers again and again to produce the legal advice that was given on these cases and, by doing so, to silence the chamber. As with the implications of the Cubie committee report south of the border, we are being asked to take these matters on trust. I have still not received answers to questions on whether European Community law prevents up-front payment of tuition fees for Scottish students south of the border, or on the effect of the ECHR on Scottish students who had to pay such fees. I am quite open to persuasion on those issues.

In the debate on law officer appointments on 17 February, the First Minister also said:

"I want to make clear the fact that examination of the problems of judicial appointments is something to which we are committed. We have made that clear; it is in the partnership document".—[Official Report, 17 February 2000; Vol 4, c 1256-58.]

At a meeting of the Justice and Home Affairs Committee in September attended by the Deputy First Minister, there was a commitment to consider an independent commission for the appointment of judges. It is now March and we are still only thinking about and considering the matter. We must also question the pace at which things are happening.

Roseanna Cunningham raised difficulties with the age of criminal responsibility. We want the Executive's assurance that some advance investigation and research has been undertaken on this matter and that it will not happen in the face of a court case with all the human and judicial problems that that will involve.

I will now consider some of Mr McLetchie's points. First, the replacement of temporary sheriffs in the criminal justice system does not have an impact on only the accused; it affects victims and their families and civil cases. It also has a major impact on Scottish society and on the way Scots view their justice system.

I have addressed the children's panel system, about which Professor Black has raised concerns. He is an eminent lawyer. Was his advice ever sought? What was his view—or the view of other academics for that matter—on the ECHR's impact on the various examples raised by Mr McLetchie? No doubt we will hear about that in the summing up.

Pauline McNeill spoke about the quantity and quality of challenges, with which I have dealt.

I want to mention sovereignty. Roseanna Cunningham said that the Parliament could be taken to court by individuals if it breaches the ECHR. That is quite right. The people are greater than any institution. The Deputy First Minister made a remark about the sovereignty of Westminster, but that is not the case. In 1953—I hope I have the right reference—in the case of MacCormick v the Lord Advocate, arbiter Lord President Cooper said that there was a distinction in Scotland in that sovereignty rests with the people not with the Parliament.

Donald Dewar reaffirmed that point when he introduced the Scotland Bill to Westminster and the idea is continued historically in the claim of right. That leaves us with an interesting prospect. If this Parliament were to decide that it wanted Westminster to do something in the interests of the rights of the Scottish people—perhaps something to do with social security benefits, such as benefits for elderly people or to do with whether elderly people should pay for nursing care if they have dementia—and Westminster refused to do it, that would be a breach of rights and we could challenge Westminster for having breached the ECHR. That takes democracy to where it belongs.

I suggest two cures for the problems faced by the Executive. First, a judicial appointments commission would separate the judiciary from the Executive at a stroke, which would remove many of the problems. The establishment of such a commission was in the manifestos of the Scottish National party and the Liberal Democrats. It is imminent and necessary.

The establishment of a human rights commission would be another cure, as we state in our amendment. Hugh Henry is not here, but he wanted to know what such a commission would do. Other members have addressed that question, but some of the most relevant points are that it would be a statutory body with appropriate powers and resources, appointed by the Executive and—I stress this—the Scottish Parliament.

Such a commission should work in close co- operation with a committee of the Parliament. We suggest that that committee should be the Equal Opportunities Committee, not because the Justice and Home Affairs Committee shirks its responsibilities—it certainly does not—but because the Equal Opportunities Committee seems the most appropriate destination. The commission would work closely or jointly with the Commission for Racial Equality, the Equal Opportunities Commission and the proposed disability rights commission.

Above all, a human rights commission should be accessible and accountable. We envisage that such a commission could investigate the causes of abuses and injustice and create pressure for reform. It would be an independent commission, addressing human rights. It would also address international obligations, in particular—in connection with the age of criminal responsibility—the UN Convention on the Rights of the Child.

I am concerned, as always, about the public perception of and confidence in this Parliament, although I put blame for the difficulties that we have faced in the press firmly at the feet of the Executive. The Executive has tested the loyalty of the Scottish people considerably through the way in which it presented reform of section 28, through the Holyrood debacle and now through the running sore of the application of the ECHR. The approach seems to be to find fingers-in-the-dyke solutions.

By accepting our amendment and establishing a commission that would function as I have explained, Scotland's pioneering approach—my goodness, I am happy that Scotland is pioneering—to international legislation would be properly addressed and structured in the interests of the Parliament, of justice and, most important of all, of the individuals whose rights are properly and powerfully identified in this powerful little booklet, the convention. I support the amendment.

Such are the marvels of our technology that the next speaker is listed on my screen as "guest speaker". I assume that the Lord Advocate will soon acquire a parliamentary identity pass, which will enable him not to be anonymous. I am sure that the chamber will want to welcome the new Lord Advocate, and I invite Colin Boyd to make his maiden speech. [Applause.]

The Lord Advocate (Colin Boyd):

Thank you very much for that introduction, Sir David. I hope that I will not be seen here too often simply as a guest. I very much welcome the fact that my first speech to this Parliament is on the European convention on human rights and its incorporation into and effect on Scots law.

I start by putting this debate into a general context. Jim Wallace outlined the history of the convention and its place in the devolution settlement. We have to ask ourselves a further question: what is the purpose of the convention and of incorporating it into domestic law?

I agree with those who made the point that incorporation of the convention into Scots law puts human rights at the core of the legal system. I believe firmly that it is about the modernisation and reform of the legal system. It goes further, however. I am, of course, speaking as a lawyer and as someone who has practised at the Scots bar.

Hugh Henry made a telling point about the infusion of human rights into our society. As far as the law is concerned, the Lord Justice-General said, in a recent case, that one should not see the European convention on human rights as separable from every other facet of Scots law. As he said, it permeates through the whole body of Scots law. That, in a modern, democratic society, must be right.

The convention puts at the heart of the legal system a statement of fundamental principles, which should guide Scots law, particularly when it deals with public bodies. I would say in response to the points made by Bill Aitken and one or two other Conservative members that the incorporation of the convention should not be seen simply as putting an accused's rights somehow above those of others. European jurisprudence is quite clear that, on occasions, one has to balance rights.

The convention imposes positive obligations. For example, the right to life imposes a positive obligation on nation states to protect the life of the victim of a stalker. The right to private life imposes a positive obligation on the state to maintain an effective regime of criminal sanctions to bring someone accused of the rape of a mentally impaired girl to justice.

I want to make two points about the new regime. The first relates to the development of a domestic jurisprudence. Prior to incorporation, scrutiny of draft legislation was an attempt to predict what the European Court of Human Rights in Strasbourg would say if the provision in that legislation came before it. That has changed. It is now the UK courts and, specifically, the Scottish courts, whose views we are trying to predict. Within the overarching requirements of the convention, it is possible for the Scottish courts to have their own views on the convention's requirements, which, in some cases—we have already seen this in some of the instances before our courts—are more demanding than those of the Strasbourg court. Secondly, the availability of an immediate remedy in the domestic courts encourages, as we have seen, many more challenges based on the convention than was previously the case.

The passing of the Scotland Act 1998 and the Human Rights Act 1998 did not change the terms of the convention. Any complaint about the compatibility of aspects of Scottish government that can be made now could have been made before that legislation. However, as Gordon Jackson pointed out, the availability of immediate remedies in the local sheriff court or even district court makes the whole process much more accessible to those people who wish to challenge our legislation and the Administration.

It is clear that there is strong support in this chamber for some sort of human rights commission. As Jim Wallace said, the Executive is aware of that support and would welcome a wide-ranging debate about the nature and functions of such a body, including its relationship with this Parliament. The human rights forum is working on a submission to the Executive on the subject. We were asked whether we would commit ourselves to the idea in principle. We will consider the submission of the human rights forum but I caution members that we have to examine the detail of how the commission would relate to the Parliament and the Executive, how it would be funded and whether it would be proactive or would support cases that were brought to it. That is also something that the Justice and Home Affairs Committee should address; I am sure that Roseanna Cunningham will want to do so.

If we can spare the time.

The Lord Advocate:

Perhaps in a spare evening.

Scott Barrie, Christine Grahame and others referred to children's panels. We all agree that we have a unique and valuable system of children's hearings that respects the child and has the interests of the child at its heart. It is founded on principles that focus on the child. Aligning the European convention with the children's hearings system should strengthen the common principles. There is scope for debate as to what further improvements might be made. The Scottish Children's Reporters Administration has undertaken an assessment of the convention's impact on the system. We are considering the hearings as part of our wider audit. As members will be aware, there is a case before the courts to which Scottish ministers might become party. It would therefore not be appropriate for me to go further than to repeat the views that were expressed by the First Minister in the chamber the other week. Our approach is to preserve the essence of the system.

Lyndsay McIntosh talked about the district courts. I welcome the work that is done by those courts. The former Lord Advocate said that he would not bring prosecutions in the district court before ex officio justices of the peace or justices of the peace who are elected members of local councils. That was anticipatory, in the light of the Starrs and Chalmers decision. We are considering the issue of district courts and, in particular, ex officio justices of the peace as part of the ECHR audit.

Training for the district judges would be a matter not for the Crown Office but for the Scottish Court Service. I know that people from the Crown Office have participated in conferences with the District Courts Association and, through the local commission areas, with the local fiscals.

I recognise that the problems with temporary sheriffs have caused difficulties in some courts. We face perhaps the most difficult problem in Perth. On a rough count, 16 of the 48 courts in Scotland are not meeting the 12-week summary trial target. That compares with 15 in October 1999, immediately before the judgment on temporary sheriffs. Although it is true that there are difficulties in the civil courts, those difficulties are not uniform throughout the country. By my reckoning, 19 courts have experienced further delays in civil cases since the judgment on temporary sheriffs.

In his speech, the Deputy First Minister confirmed his earlier announcement that six more posts will be advertised. We are considering whether there is scope to introduce a new type of appointee, to be known as a part-time sheriff. The Deputy First Minister met the Sheriffs Association last week to explain our current thinking, and the association fully understood why that process would take some time. However, we are committed to ensuring that our courts deliver justice speedily, and we will take whatever measures are required to ensure that that happens. Any solution will have to comply with the European convention on human rights.

My final message is this: there is no quick solution. We are going through a transitional period. From my experience in Canada last year and my knowledge of other systems, I know that every system that incorporates the convention or some kind of charter or bill of rights goes through a transitional period. The Crown and the Executive will lose cases: that is part of the judicial system. I regret that that will happen. However, when we anticipate a challenge and believe that it has a reasonable chance of success and that a solution is readily available, we will introduce legislation to address that situation. When we lose cases, and when a wider issue must be addressed, we will address it in the light of the judgment. We are not complacent about these matters; we take them seriously. However, we are going through a transitional period, as we move into a rights-based system of law, and we will experience the difficulties of that for some time to come.

I warmly welcome the Lord Advocate on the occasion of his maiden speech in the Parliament. He gave a thoughtful speech, which contained some helpful reassurances to the Parliament, including on the consideration of a human rights commission. We look forward to many more speeches from him in the future. If I may say so, he was refreshingly modest when he said that he may lose cases. We very much hope that he will win cases, and we wish him well.

Christine Grahame said that the ECHR has had widespread implications. She is right to mention tuition fees, as in that case at least one option that the Executive was considering had to be ruled out. I welcome Euan Robson's call for an audit on the ECHR, which I believe is necessary. The issue of human rights is extremely important, and it is right that we should debate it today. As Euan Robson suggested, the Scotland Act 1998 made certain that the European convention on human rights applied directly to the actions of both the Scottish Parliament and the Scottish Executive. From 2 October, when the Human Rights Act 1998 comes into force, the convention will also apply to all public authorities in Scotland and the United Kingdom.

The initial implications of incorporation have given us cause for serious concern. The landmark ruling that the 126 temporary sheriffs were not independent was soon followed by the ruling on section 127 of the Road Traffic Act 1988. Those examples illustrate the disruption and upheaval that can arise as a result of incorporation. A human rights commission in Scotland is needed on account of that uncertainty. Scott Barrie talked about a human rights culture, and the case for a human rights commission has been supported widely—by Christine Grahame, Roseanna Cunningham, Michael Matheson, Kenny MacAskill, Colin Campbell, Robert Brown and Pauline McNeill.

Public authorities in Scotland need a body to which they can refer for expert guidance on action to iron out any difficulties that the incorporation of the European convention on human rights may impose. If the Scottish Executive has had problems, it is not inconceivable that public authorities will also have them. That is why we need a Scottish human rights commission, which would be in the best interests of good administration and the basic human rights of the Scots people. I say to Michael Matheson and Robert Brown that we would be happy to consider a wider remit for it than the one suggested in the motion. I ask the Minister for Justice and the Lord Advocate to give serious and genuine consideration to this modest, commonsense proposal.

Incorporation of the ECHR has enormous cost implications. A written answer that I received recently stated that the provision made for the cost to the Crown Office, the legal aid fund and the Scottish Court Service was £6.5 million in 1999, £10.6 million for 2000 and £8.9 million for 2001. That is some £25 million for those areas alone. Will the Minister for Justice tell us where that money will come from? Will it come from the capital budgets of roads or prisons? It would be helpful to have a clear picture of the implications for the Scottish block, as they will certainly be severe.

Gordon Jackson mentioned, fairly, the effect on the courts. A certain amount is known from parliamentary answers. The landmark decision on temporary sheriffs has had serious repercussions. A recent written answer that I received showed that, between 1 November 1999 and 31 January 2000, almost 70 cases were postponed due to a lack of temporary shrieval resources in nine Scottish sheriff courts. Another written answer showed that, in those courts, the average period between plea and trial increased considerably: six had increases in average waiting times and the average wait in Stirling sheriff court more than doubled from 11 to a staggering 26 weeks. That makes clear the considerable difficulties resulting from the ruling on temporary sheriffs, which the Lord Advocate acknowledged this morning. Furthermore, there are fears that there could be more appeals against rulings handed down by temporary sheriffs. I repeat the request that I made earlier to the Deputy First Minister and I ask the Lord Advocate to consider it as well: more appointments will be needed if good and sound administration of the courts is to be maintained.

The challenges made to date as a result of the ECHR may be the tip of the iceberg. When the convention is fully incorporated, further decisions could disrupt existing procedures. Professor Robert Black claims that Scotland's distinctive system of juvenile justice, which has won worldwide praise, breaches the rights of children. If he is right, that could have substantial financial implications. Professor Kathleen Marshall of the centre for the child in society at the University of Glasgow said:

"If we are going to start reforming the law with an eye solely to the Convention, we will end up with a formalised system that does not recognise the needs and rights of children."

I hope that the Executive will be vigilant and prepared for any challenge, and that it will keep as its foremost principle that the interests of our children should be paramount at all times.

As Christine Grahame rightly said, there is concern over possible challenges to policing methods, including tried and tested techniques in the struggle against criminals. Those techniques include: stop-and-search powers; detention powers, including the power to remand an accused person in custody; core surveillance activities such as phone tapping and covert listening devices; fingerprinting, photographs, DNA samples and their retention; searches of persons and premises; and the use of undercover agents. It has been argued that in some circumstances a challenge could be launched against the use of handcuffs, as that can be considered degrading treatment.

We must be careful to ensure that the ECHR does not undermine the rule of law, because there will certainly be changes. Police magazine said:

"That there will be changes in policing there seems little doubt. In the initial stages it is likely there will be challenges to police actions on numerous fronts and that there will inevitably be uncertainty until the courts here have provided guidelines from which a clearer position can emerge."

Actions that risk being struck down by incorporation include the issue of bail and any attempts to learn from the experience of the Irish in taking the fight to drug dealers by reversing the burden of proof.

It is clear that the incorporation of the ECHR into Scots law has had consequences, and possible future challenges give cause for concern. That is why the Executive must do a number of things as soon as is practicable. First, will the Minister for Justice and the Lord Advocate give a statement on the Executive's state of preparedness for the full operation of the convention in October? I think that it was Roseanna Cunningham who said that the Executive needed to be prepared for potential challenges.

Secondly, will the Executive call for a full and detailed analysis of the ECHR implications of all legislative proposals that have been submitted to Parliament? Thirdly, does the Executive have any contingency arrangements? Finally, will the Executive consider the establishment of a human rights commission to provide expert advice and guidance to public authorities in Scotland on the impact of the ECHR?

The departure this morning of General Pinochet does not alter the fact that our commitment to human rights has to be unshakeable. For the benefit of the basic rights of our countrymen and women, and to make human rights a visible reality, it will be essential to have a human rights commission to provide expert advice and guidance to public authorities on the impact of ECHR.

I commend the motion to the Parliament.

That concludes the debate. Before we move to the business motion, I remind members that I said yesterday that I would reflect on and respond to the point of order that was raised by Dennis Canavan. I will give my reply now.

I said yesterday that civil servants should not be referred to by name in debate. This matter is not covered by the standing orders governing the procedures of this Parliament; rather, it is a matter of common courtesy. Civil servants work on behalf of ministers and it is ministers who are accountable to Parliament.

Dennis Canavan asked whether my comments included special advisers. His actual words were "spin-doctors or special advisers", but the former term of art is not known to the Presiding Officer.

My ruling is that I invite members to observe the general principle that civil servants should not be referred to by name, for the reasons that I have outlined. However, there may be occasions on which a member believes that such a reference is justified, either because of the particular responsibilities that are associated with the civil service post, such as that of an agency chief executive, or because of the role of the particular civil servant. In the latter case, the role of a special adviser who often acts publicly as a Government spokesperson would justify such a reference.

On a point of order. I wrote to you to ask whether your remarks yesterday referred to comments that I made in debate. Did they?

They did. I did not want to name you.

It is not a problem. I think that I was following the second of your two examples, as the civil servant whom I named was attending a public meeting. As I named other people who attended that meeting, I thought it was appropriate to name him as well.

We will continue our correspondence on this matter. I would say that your case was covered by the first part of my ruling as, presumably, the civil servant was attending the meeting on behalf of the minister.