BBC News | SCOTLAND | Rights law 'will cause errors'

Scotland's senior judge has admitted the courts will make mistakes in the next few years as they apply the Human Rights Act which came into force at midnight.

But Lord Rodger, the Lord President, said the legal profession should keep a sense of proportion about the new legislation which brings Britain into line with European human rights law.

From Monday all public bodies, including utilities, health boards, local authorities and even churches, must ensure their actions comply with the European Convention on Human Rights.

Human rights legislation has already caused upheaval in Scotland's justice system, with challenges relating to temporary sheriffs, some driving offences and even procedures at children's panel hearings.

'Significant effect'

Addressing a Law Society conference, Lord Rodger said the new act would have a significant effect on life in Scotland.

He anticipated a number of appeals in the courts in the near future and admitted that in five or 10 years time, some of the decisions made by judges may turn out to have been wrong.

Solicitor advocate, Jim Keegan, who helped argue for the removal of temporary sheriffs in Scottish courts, warned that some of his profession would see the new legislation as "an Aladdin's cave".

The West Lothian-based lawyer claimed that the convention would be "a constitutional measure of the greatest significance" for the protection of civil and political rights.

Mr Keegan said he expected "a proliferation" of European challenges being raised in civil cases, which include custody battles, planning issues and damages claims from medical and workplace negligence.

Lord Roger: "Mistakes will occur"

He added: "There is a great temptation for lawyers perhaps to regard the ECHR as an Aladdin's cave filled with dazzling new arguments and for the press to regard it as an excuse for greedy lawyers to make much more money."

However, in general, legal experts say the problem is not likely to be the readiness of people to use the new legislation, rather the lack of preparation of many public bodies to ensure their practices comply with it.

The Scotland Act which brought in devolution required all actions of the Scottish Parliament and the Scottish Executive to comply with the convention.

The UK-wide Human Rights Act, extends that. All public bodies must now ensure their actions are compatible with the convention.

Already claims are being made about the effects of the new law.

The Green Party says plans to fluoridate Scotland's water would deny human rights, while pensioners' organisations say people's right to live in their own home may prevent councils from requiring the elderly to sell their house to pay for care.

Police say there could be challenges to their use of handcuffs.

Tribunal move

Last year, temporary sheriffs, who had been widely used to hear cases in Scotland's 49 sheriff courts, were outlawed by the Court of Appeal.

It was successfully argued that they were not fully independent because they had been appointed by the lord advocate, the senior prosecuting lawyer in Scotland.

The Scottish Parliament was forced to act and create part-time sheriffs who would be appointed by a tribunal.

Some driving offences have been challenged

The convention also led to the Scottish Executive introducing controversial measures to allow bail to be considered in cases of serious alleged crimes such as murder and rape.

Drink-driving cases, speeding and a range of other cases have been called into question.

One involved a motorist who was cleared of drink-driving charges after it was ruled police could not order her to disclose who was driving her car.

Lawyers argued that the woman, who gave a positive breath test, had been forced to incriminate herself when she was stopped by a patrol car, breaching the convention's rules on the right to a fair trial.

The Criminal Appeal Court upheld the complaint and quashed the woman's original conviction.

The case is currently awaiting an appeal to the House of Lords.

While many have expressed concerns that the law has gone too far, Scotland's ministers point out that only 14 out of 560 challenges brought under the convention have been successful.


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