When Gordon Brown signed The Lisbon Treaty last year, did he inadvertantly re-introduce the death penalty to Scotland?
Steven Raeburn digs a little deeper into the small print.

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When Gordon Brown put pen to paper on the Lisbon Treaty of Europe in December - the progress of which had been hampered by its long gestation which saw it morph from its original intended role as a codified European Constitutional document, into a bastardised and somewhat hamfisted compromise following the resounding ‘No’ votes from the Dutch and French electorates, the long reformed socialist in him may have been roused from its dormancy.


What? In the first instance, pub quiz wisdom would have most people believe that the UK had always proudly retained its death penalty – abolished for conventional crimes in the pre-devolved UK in 1969- for crimes of piracy or treason.  Whether such an anachronism was actually true became a moot point when the Human Rights Act became effective in UK law in 2000, sweeping away the last vestiges of state sanctioned barbarism, seemingly forever.  Not though, in the view of German academic Karl Albrecht Schachtschneider, Professor of Public Law at Erlangen-Nurnberg University, who raised legal proceedings against the implementation of the then Constitutional Treaty in 2005, after previous attempts to prevent Germany adopting the Euro, and who petitioned the Federal Constitutional Court of Germany to prevent the ratification of the Maastricht Treaty in 1992.  It would be difficult to classify his views as simply euro-sceptic, to use the favoured tabloid parlance. His views generally could collectively be better described as anti-expansionist, or at the very least against the over integration of European institutional structures.  

Nevertheless, he took a view of the Constitutional Treaty before it took its final shape as the Lisbon document, and concluded that it could be interpreted to have introduced the death penalty back into European law, subject to certain conditions. It couldn’t happen here, could it?  In an era where innocent Brazilian electricians are shot seven times in the face on a city street by the police in broad daylight - and the only action taken by the machinery of the law is to consider whether there had been a breach of Health and Safety provisions, rather than a murder- this interpretation ought to concern us all.

“Let’s turn to the fundamental rights, notably the right to life, and let’s look at this in detail. At  Article II-62 of the Constitutional Treaty one reads: “No one shall be condemned to the death penalty, or executed.” Fine. But that is not the truth,” Schachtschneider told the Executive Intelligence Review.

“The Constitutional Treaty states that the declarations on fundamental rights (that were taken over from the European Convention on Human Rights and Basic Freedoms) are as binding as the Charter of Fundamental Rights of the Union itself. Reality strikes in those declarations. The aforesaid Charter of Fundamental Rights of the Union is based—at least insofar as the standard basic rights are concerned—on the 1950 Rome Treaty, known as the Convention for the Protection of Human Rights and Fundamental Freedoms. In 1950, there was no option other than to allow the many states within the Council of Europe to retain the death penalty. Germany had abolished it, but France, England [the UK], and many other nations still retained it, nor would a Declaration on Human Rights have been possible, had one insisted on its abolition.”

“But now, that declaration of 1950, following lengthy discussion, and not simply owing to negligence, was quite deliberately taken over as binding for the Charter of Fundamental Rights of the Union. And those declarations must not only be read, they must be understood,” he said.

It is well known that domestic law is retained in EU states, with the overarching EU law as contained in the treaties taking precedence only where there was conflict. It is understandable that, in the early months and years of establishing the common points of what was the nascent EU, a great deal of it was fudged, hence the continuing need for ratifying treaties, and the desire for a constitutional document of some description. Practitioners of law will know –to a degree not understood by lay people- how much of the law is the result of interpretation, either of statute or evolving common law, and hence it is not a great leap of the imagination to argue that the scattered provisions arising from 60 years of ad-hoc Europe wide drafting could leave a hole big enough to allow a judicial death penalty to be interpreted into it.

“In the Constitutional Treaty, one reads, ‘No one shall be condemned to the death penalty, or executed.’ But the 1950 Convention for the Protection of Human Rights and fundamental Freedoms states, ‘Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary in defence of any person from unlawful violence.’ Fine, that amounts to self-defence,” Schachtschneider explains.

“But then we read, ‘in order to effect a lawful arrest or to prevent escape of a person lawfully detained.’ Here, the 1950 Rome Convention begins to go pretty far indeed; and now we come to the following: ‘in action lawfully taken for the purpose of quelling a riot or insurrection.’ Now think back to the events at Leipzig in 1989, or to any demonstration were there may have been violence, and that might be considered to constitute ‘riot or insurrection’.”

“The 1983 protocol to the 1950 Convention reads ‘A state may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war’, while sub paragraph 1 of the 1950 convention’s article 2 reads ‘No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’

“Consequently, the death penalty is possible, ‘in time of war or of imminent threat of war.’”

Q.E.D.  Or is it?

The Firm put the Professor’s argument to Justice Minister Kenny MacAskill, who offered no direct comment. However, the Scottish Government did issue a statement to us, which confirms that there are no present plans to reintroduce the death penalty, which is reassuring, and that they disagree with Schachtschneider’s interpretation of the treaties, particularly his reading of the European Convention of Human Rights.

“The Scottish Government is totally opposed to the death penalty and has no plans to reintroduce capital punishment,” they told the Firm.

“Capital punishment has been abolished and neither the Westminster Parliament nor the Scottish Parliament could re-introduce it without denouncing the whole of the European Convention on Human Rights. The ECHR absolutely prohibits the death penalty in all circumstances, including times of war.

“And of course, the ECHR is not an EU document (it is a Council of Europe document) and could not be modified by the Lisbon Treaty or any other EU Treaty.  The Treaty therefore does not, and could not, enable a return to the death penalty.”

This however is just one other interpretation, and as the World’s End case – and indeed many others- showed, there is no telling what decision a Court will make in relation to the matters before it, particularly if we are to have any faith in the separation of powers doctrine.  The Scottish Government may wish a certain interpretation to be reached, but an independent court should not – by definition- be persuaded by that.

The Scottish Government’s position also fails to address Schachtschneider’s point that a Human Rights argument can be overridden by state priorities of self defence. And let us not forget that the Human Rights act did nothing to protect untried citizens being kidnapped through Prestwick Airport –where yes, the Human Rights Act applies- by the CIA on their way to be tortured in the name of “freedom”.  In Scotland, we appear to have a very flexible view about exactly which rights are inalienable on our soil.  Schachtschneider goes further.

“Should the European Union decide to deploy on “missions,” in other words, warfare in the guise of “crisis interventions,” and should the European Union lay down directives for such a warlike state where the death penalty would become permissible, one will no longer be in a position to allege that fundamental rights laid down in the Constitutional Treaty have been disregarded. Thus, the right to life is no longer guaranteed “in time of war or where the peril of war is imminent, as these will be European deeds of law, and these decisions will not be based on the death penalty having been abolished, but on this cited line of argument.”

“What this means is that the death penalty is now admissible, and it will happen. I can’t blame those who have failed to see this as they have not spent a lifetime studying public international law and European law. All the more, because reading this thing, this Constitutional Treaty, amounts to assault and battery.”

The Firm did ask the Lord Advocate to provide an opinion of Schachtschneider’s interpretation, but were given the less than encouraging, qualified ‘no comment’.

“We are not able to help with your query re the views of the Professor,” The Firm was told.

“As you know, the Lord Advocate is the principal legal adviser to the Scottish Government. As such she is not in a position to provide an opinion on legal matters to anyone else.”

The Firm does not believe Scotland, or indeed the UK is on the brink of a bloodthirsty return to judicial executions.  However, as the Jean Charles de Menezes debacle has shown, the state can take an extremely proactive and arbitrary view on exactly whom it considers to be a threat.  Aamer Anwar awaits the outcome of contempt of court proceedings for statements made following the first Scottish conviction under new anti-terrorism legislation.  Summary justice reforms now empower street police to issue judgements restricting liberty on the spot, with judicial representation coming days or sometimes weeks later. Security-vetted advocates are now to appear in closed-door hearings. And the funding of criminal justice is so acutely eroded as to be in danger of ineffectiveness. The current tone is indeed concerning.

It is not inconceivable that individuals or groups who are described as threatening by our Governments could find themselves facing a sanctioned death penalty under certain particular circumstances, if tensions over terror were suddenly ratcheted up.  It could indeed, happen here.