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Earlier this year the Faculty sponsored a conference held by the Scottish Refugee Council. The conference was called “Prosecute or Protect?” and focused on what refugee lawyers know as the principle of non-penalisation. That principle finds legal form in Article 31 of the 1951 Refugee Convention. Article 31 provides that:

“the contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened … enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. ”

The background to Article 31 was explained in this way by Simon Brown LJ in ex parte Adimi [2001] QB 667, 673F-H:

“The problems facing refugees in their quest for asylum need little emphasis. Prominent among them is the difficulty of gaining access to a friendly shore. Escapes from persecution have long been characterized by subterfuge and false papers. As was stated in a memorandum from the Secretary General of the United Nations in 1950: “A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge”.”

To prosecute and punish genuine refugees for using subterfuge and false papers would undermine the duty of protection which states owe to them in international law.

The conference highlighted the absence – by contrast with the position in England & Wales – the absence of any prosecution policy addressing the matter. The Lord Advocate spoke at the Conference and made clear his intention to remedy that gap. This has now been achieved, with the publication yesterday of the new COPFS Policy. The policy can be found at

http://www.crownoffice.gov.uk/images/Documents/Prosecution_Policy_Guidance/Guidelines_and_Policy/COPFS%20Refugees%20Policy.pdf

I warmly welcome the publication of this policy and the Crown Lord Advocate is to be congratulated on taking this issue forward.

It is particularly heartening that the policy should have been published at this time. None of us should minimise the public interest in the proper enforcement of immigration laws. But at the same time, the duty on states to give asylum to those who face a well-founded fear of persecution in their home country is a moral imperative as well as an obligation in international law. The displacement of populations by war and civil strife, the ease of international mobility, the potential difficulty of distinguishing the genuine refugee from the economic migrant or, indeed, from the person who would do us serious harm – all of these challenge our commitment to the protection of refugees. But this country has a long and honourable record of giving refuge to people fleeing persecution, and we cannot fail to meet the claims of people in that situation just because it is difficult or inconvenient to do so.

On 8 May 2015 I was elected as the MP for Edinburgh South West. I am proud to be the latest in a long line of members of the Faculty of Advocates who have represented my constituency. The late Norman Wylie QC, formerly Lord Advocate and latterly Lord Wylie, a senator of the College of Justice, was followed by the right hon. Malcolm Rifkind QC, who was succeeded by the right hon. Lynda Clark QC, formerly Advocate General and now Baroness Clark of Calton, also a senator of the College of Justice. My immediate predecessor was the Right Hon Alastair Darling, Advocate. My maiden speech took place during the Justice and Home Affairs portion of the debate on the Queen’s speech and was given in my capacity as the SNPs Front bench Spokesperson on Justice and Home Affairs. As a lawyer, it was appropriate that I should make my first speech in the House in defence of human rights and the rule of law.   I wanted to underline the importance of upholding international human rights standards and to lend my voice to the cross party campaign to save the HRA. Here is what I said;

“The tone and tenor of the Government’s approach to human rights and civil liberties issues give me and my party grave cause for concern. While the Government appear to have been blown off course in their zeal to implement their manifesto pledge to repeal the Human Rights Act, I note that the Home Secretary has confirmed that a Bill will be brought forward to introduce a Bill of Rights and to repeal the Human Rights Act. Lest there be any doubt, I and my party are fundamentally opposed to the repeal of the Act and would consider it a thoroughly retrograde step if that were to be done. Any reduction in current human rights safeguards will threaten the fundamental freedoms to which everyone is entitled in a modern democratic society governed by the rule of law. We should not forget, as the shadow Home Secretary reminded us, that the people who have benefited from the human rights protection afforded by the Act are often the most vulnerable in our society—for example, disabled people affected by welfare reform and the families of military personnel killed on active service because the Ministry of Defence supplied them with outdated equipment.”

Nor, as the shadow Home Secretary reminded us, should we forget that the United Kingdom was in at the foundation of the European convention on human rights and that it was brought forward largely at the suggestion of Winston Churchill. Since we became a signatory to the ECHR, both Scotland and the UK have been setting standards for the world in safeguarding human rights. The Scottish Government take pride in that, and I really wish that the UK Government would do the same.

The right-wing press likes to run stories about what a poor record we have in Strasbourg, but contrary to the impression in the press the UK loses less than 1% of the cases brought against it in Strasbourg. The right-wing press also likes to run scare stories about alleged—I stress the word “alleged” because everybody is entitled to a fair trial—foreign criminals who cannot be deported, but the UK has successfully managed to deport alleged foreign criminals, such as Abu Qatada, who was deported in a way that meant he faced trial with proper safeguards against the use of evidence obtained by torture. That is only right in a society that believes it ought to be governed by the rule of law.

It might have taken time to deport Abu Qatada, but the UK Government should be proud of doing things properly. Instead they have managed to give the impression that respecting human rights and upholding the rule of law are an inconvenience. Such an attitude is not the way forward. As the shadow Home Secretary said, every country in Europe, save Belarus, is a signatory to the ECHR. A UK withdrawal would send out entirely the wrong signal on the international stage.

In Scotland, the Human Rights Act is part of a larger picture. The rights in the ECHR are written into the devolution settlement by virtue of the Scotland Act 1998. In Scotland, we have a national action plan for human rights and a UN-accredited human rights commission. The SNP’s commitment to human rights extends beyond the civil and political rights in the Act to economic, social and cultural human rights. We believe in Scotland that human rights are central to the way we address the overall challenge of building a fairer and more equal society. Repeal of the Act is strongly opposed in Scotland. Indeed, last November, the Scottish Parliament voted overwhelmingly to endorse the Act.

Last year during the independence referendum campaign, the Prime Minister invited Scots not to leave the UK but to stay and lead the UK. With the overwhelming mandate we have received from the people of Scotland in the recent general election, I and my fellow SNP MPs intend to do just that, at least for the time being—to lead the UK. On this issue in particular, we would be proud to join other friends among Opposition Members, and possibly among Government Members too, in a progressive alliance of all Members who believe in the Human Rights Act and the value of participation in international instruments such as the ECHR.

The nationalism of the SNP is a civic nationalism that looks outwards and wishes to play a full part on the world and European stage. For so long as Scotland remains part of the UK, that is the approach that the SNP will advocate. I urge the House not to indulge in the narrow, inward-looking nationalism of withdrawing from the ECHR and drawing up its own Bill of Rights.

My message to the House, and in particular to those on the Government Benches, when considering whether to repeal the Act and leave the ECHR, can best be summarised by the words of my fellow countrywoman, Mary Queen of Scots, when she was on trial for her life before an English court:

“Look to your consciences and remember that the theatre of the whole world is wider than the kingdom of England”.

WE thought it fitting to launch the Faculty of Advocates Human Rights and Rule of Law Committee’s website today – Human Rights Day!

We hope that you will enjoy visiting our website and we would like to encourage all contributions and suggestions as how to make our website informative and accessible to everyone.

Today the Faculty of Advocates in conjunction with JUSTICE Scotland are celebrating Human Rights Day with two distinguished legal figures from either side of the border, Sir Steven Sedley QC and Lord Hamilton.

Lord Hamilton, the former Lord President, and Sir Stephen Sedley, QC, who served as a judge in the Court of Appeal of England and Wales for more than a decade, will examine “Freedom of Expression”. Sir Stephen will present a paper, and Lord Hamilton will respond, followed by a general question and answer and discussion session that is to be chaired by the Dean of Faculty.

In advance of this afternoon’s event – and our own celebrations of today – we thought it appropriate to take a moment to reflect on the history of Human Rights Day, as it serves to underline the importance of this date in our legal calendar.

Human Rights Day is celebrated across the world on 10 December every year. The date was chosen to honour the United Nations General Assembly‘s adoption and proclamation, on 10 December 1948, of the Universal Declaration of Human Rights, the first global enunciation of human rights and one of the first major achievements of the new United Nations.

The formal establishment of Human Rights Day occurred at the 317th Plenary Meeting of the General Assembly on 4 December 1950, when the General Assembly declared resolution 423(V), inviting all member states and any other interested organisations to celebrate the day as they saw fit.

On 10 December 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights. The formal inception of Human Rights Day dates from 1950, after the Assembly passed resolution 423(V) inviting all States and interested organizations to adopt 10 December of each year as Human Rights Day.

When the General Assembly adopted the Declaration, with 48 states in favour and eight abstentions, it was proclaimed as a “common standard of achievement for all peoples and all nations”, towards which individuals and societies should “strive by progressive measures, national and international, to secure their universal and effective recognition and observance”.

Although the Declaration with its broad range of political, civil, social, cultural and economic rights is not a binding document, it is incredible to think that it has inspired more than 60 human rights instruments, which together, now constitute an international standard of human rights.

Today the general consent of all United Nations Member States on the basic Human Rights laid down in the Declaration makes it even stronger and emphasises the relevance of Human Rights in our daily lives.

The Universal Declaration of Human Rights now holds the world record as the most translated document (except for the Bible).

By Naomi McAuliffe on behalf of Scotland for Amnesty International

The 10^th December marks Human Rights Day, an annual and international celebration of human rights. It gives us an opportunity to reflect on the human rights situation around the world and take stock of the challenges and crises we are facing in Scotland, the UK and internationally. Some of the issues we are currently facing include a UK Government’s commitment to scrap the Human Rights Act and bring in a “British Bill of Rights” (hyperlink: http://savetheact.uk/), an escalation of military action in Syria, terrorist attacks in the Middle East, Europe, the US and around the world, a continuing refugee crisis in Europe and the resettlement of a number of Syrian refugees to Scotland. To name but a few.

While the official welcoming of refugees by the Scottish Government is positive, we have to be mindful of the increased incidents of racist attacks against refugees and black and minority ethnic communities in Scotland particularly since the horrific terrorist attacks in Paris.

In this context, it was very timely that Amnesty International should welcome Maryam al-Khawaja (hyperlink: https://en.wikipedia.org/wiki/Maryam_al-Khawaja) to Scotland to participate in our Human Rights Day events. Maryam’s family in Bahrain are suffering huge human rights violations (hyperlink: https://en.wikipedia.org/wiki/Abdulhadi_al-Khawaja) and yet the British Government are reluctant to condemn the regime there. A reluctance to protect human rights at home can easily become a reluctance to champion human rights around the world.

Maryam’s campaigning through the Gulf Center for Human Rights (http://www.gc4hr.org/) extends beyond Bahrain to the whole Gulf region and including Iran, Iraq and Syria. While in Scotland, she is meeting with the Scottish Government, parliamentarians and civil society to highlight the urgent need for support for civil society and human rights defenders throughout the Middle East. Bombing alone will not solve the situation in Syria, but a strategy that supports those on the ground who are struggling for accountability, democracy and human rights will lay long-term and sustainable foundations for peace.

At a time when we are facing war, terrorism and a refugee crisis which is leaving vulnerable children and adults sleeping on the streets of Europe, the answer is more protection of human rights not less. The UK Government’s approach to diluting and lowering our human rights protections at home is put into stark relief when we watch others putting their lives on the line for these very same rights elsewhere.

The message from human rights defenders in the Middle East is clear; we need to stand together in defence of human rights. A toxic debate around human rights domestically in the UK can easily infect international human rights campaigning.

Around Human Rights Day is also the time of year that Amnesty International runs it’s Write 4 Rights (hyperlink: http://www.amnesty.org.uk/issues/Write-for-Rights-2015) campaign which showcases 10 individuals who are imprisoned or at risk because of their human rights work or abuses in their country. This year, the campaign includes the case of Saudi lawyer, Waleed Abu al-Khair who has been representing the imprisoned blogger Raif Badawi (hyperlink: https://www.amnesty.org.uk/actions/write-rights-saudi-arabia-free-human-rights-lawyer-waleed-abulkhair-abu-al-khair). Indeed, Maryam al-Khawaja has been an Amnesty case previously, her sister is currently an Urgent Action case (hyperlink: https://www.amnesty.org/en/documents/mde11/3011/2015/en/) and her father is an Amnesty Prisoner of Conscience. Just as Amnesty campaigns on systemic human rights abuses in Bahrain and the Gulf, we continue to campaign for those individuals who are imprisoned, tortured and harassed for their human rights work.

Join us in campaigning for human rights at home and abroad, for an end to injustice and in international solidarity with individual human rights defenders around the world: http://www.amnesty.org.uk/issues/Write-for-Rights-2015