Scots risk losing human rights by voting 'no', warns top European advocate

Scots could lose their basic human rights if they vote 'no' according to
leading European advocate Scott Crosby


Scottish News: Scots risk losing human rights by voting 'no', warns top European advocate


EDINBURGH - Should Scots vote 'no' in next September's independence referendum they could lose their basic human rights, a leading European advocate has warned.

The UK government is currently threatening to withdraw Britain from the European Convention on Human Rights (ECHR) meaning that should Scots opt to remain within the current British Union they could lose the human rights guarantees which the precedent of the European Court of Human Rights currently enforce, claims leading European advocate, Scott Crosby - a Brussels-based Scots solicitor.

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Among the protections Scots currently have under the ECHR are: the right of every person to his or her life; protection against torture and "inhuman or degrading treatment or punishment"; protection from slavery and forced labour; protection of liberty and security; the right to a fair trial; the right to privacy; freedom of thought, conscience and religion and freedom of expression.

Writing in today’s Scottish Times, Crosby argues that should the UK government continue to threaten to leave the ECHR at the time of the referendum then it would be "necessary" for Scots to vote 'yes' in next year’s independence referendum in order to protect the fundamental human rights of both themselves as private individuals and their fellow citizens. He concludes: "Assuming that withdrawal were [UK] government policy at the time of the referendum, that very English threat to fundamental rights would constitute in itself a valid and necessary reason for voting to restore Scottish statehood.”

Crosby argues that the UK government's stance relates to the English tradition of parliamentary sovereignty. He argues that Westminster's posture is that the "Human Rights Court is an opposing power. It is a constraint on the power of Westminster. And the predominantly English difficulty with accepting the power of foreign institutions, over which the UK has no power of veto, can only be explained by reference to the doctrine of parliamentary supremacy.”

The European advocate explains how Scots human rights will be at the “mercy” of Westminster governments. He warns: "beware accepting the authority of any government that threatens to deny individuals the protection of the European Court of Human Rights, because that denial would mean that whatever human rights protection [] left would be at the mercy of the doctrine of parliamentary supremacy and changing legislative moods."

While there would be residual human rights guaranteed through the UK's membership of the United Nations and no-one would seriously imagine the UK would exit the UN, Britain's courts would be free from the precedent of the European Court of Human Rights and such a move would mean Britain risked being increasingly viewed as a pariah state across Europe and beyond.

Crosby's concerns would be exacerbated as Scots could find exiting this predicament after a 'no' vote problematic because of the Edinburgh Agreement which presumes to define the result of the referendum as final. Signed last October by First Minister Alex Salmond, the agreement asserts that the result of next year's referendum vote is 'legal' and 'decisive'. The agreement between the UK and Scottish governments states that: "They look forward to a referendum that is legal and fair producing a decisive and respected outcome." However the document appears to ignore international law which states "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." The Edinburgh Agreement was awarded the Democratic Innovation Award for 2013 by the Political Studies Association. 

Crosby's grave concerns are also compounded by a report in Saturday’s Guardian about the extent to which UK intelligence services have gone to keep their mass surveillance programme hidden from the public.

While the current UK government has been threatening to leave the ECHR for some time, the Guardian article is intriguing as it provides compelling grounds to believe that the UK government's threat to leave the ECHR may now be considered pressing by the UK’s Government Communications Headquarters (GCHQ). A retired diplomat told Scottish Times that speculations that an exit from the ECHR system is being proposed in order to shield the UK's electronic surveillance system from external scrutiny are "entirely plausible".

This is due to a legal challenge in Europe to Britain's extensive surveillance programme 'Tempora' by Open Rights Group, English PEN and Big Brother Watch on the grounds that it violates rights of privacy provided for under the ECHR. If the challenge in the European Court were to be successful, the UK could be ordered to dismantle its entire surveillance apparatus and change its intelligence regulatory system.

By placing intercepts on fibre-optic cables which carry personal data across the internet the Tempora programme enables the extensive spying of private citizens in Britain and internationally. The programme became public knowledge in June after US whistle-blower Edward Snowdon leaked US National Security Agency (NSA) documents to the Guardian newspaper.

Scott Crosby’s intervention coupled with the Guardian revelations will raise the Orwellian spectre of Scots going to the ballot box in next September's referendum facing the prospect of being ruled over by a state which does not guarantee their basic human rights and which can spy on them with impunity.


[Article updated and amended 10:20am, 28.10.2013]

Scott Crosby is a partner in Brussels-based legal practise Kemmler Rapp Böhlke & Crosby

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Showing 4 reactions

commented 2014-02-26 01:24:00 +0000 · Flag
Yes. A major threat to human rights which is slipping under the radar.
commented 2014-02-25 23:17:41 +0000 · Flag
I couldn’t agree more, Scott
commented 2013-11-05 19:40:05 +0000 · Flag
I think surviellance scares the honest people.
published this page in News 2013-10-27 23:49:00 +0000