Scotland, Sewel, and the Human Rights Act

Photo credit: Guardian

Photo credit: Guardian

The Queen’s speech suggests a slowing of the Government’s plans to replace the Human Rights Act with a British Bill of Rights. But recent comments from the Scottish Human Rights Commissioner suggest the Conservatives may be considering removal of HRA protections in relation to English and reserved UK-wide matters only, leaving the Human Rights Act in place in the other devolved areas of the UK. 

Much ink has been spilled over the Government’s proposals. This article will take a narrow look at Scotland’s relationship with the Human Rights Act, and how devolution may be a future thorn in the Government’s side. 

But wait! I thought the Human Rights Act was enshrined in the Scotland Act. Doesn’t that protect the Human Rights Act in Scotland?

Sort of (not really).

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North of the Wall – A Beginner’s Guide to Scots Law

With our new team of Scots law researchers in place, the time has come for the briefest of introductions to the Scottish legal system. David Scott is our tour guide.

The Court system

The Scottish court system is divided into five tiers:

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Leave to remain: Spouses have rights too, Court of Session affirms

Mirza v The Secretary of State for the Home Department [2015] CSIH­ 28, 17 April 2015 – read judgment

On the same day as it handed down judgment in the Khan case (see Fraser Simpson’s post here), the Court of Session’s appeal chamber – the Inner House – provided further guidance on the relationship between the Immigration Rules and Article 8. Of particular interest in Mirza are the court’s comments on where the rights of a British spouse figure in the context of an application for leave to remain by his or her partner.

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Conscientious objection to abortion: Catholic midwives lose in Supreme Court

pic_giant_051713_Therapeutic-Cloning-of-Human-EmbryosGreater Glasgow Health Board v. Doogan and Wood [2014] UKSC 68 – read judgment here.

The Supreme Court recently handed down its judgment in an interesting and potentially controversial case concerning the interpretation of the conscientious objection clause in the Abortion Act 1967. Overturning the Inner House of the Court of Session’s ruling, the Court held that two Catholic midwives could be required by their employer to delegate to, supervise and support other staff who were involved in carrying out abortion procedures, as part of their roles as Labour Ward Co-ordinators at the Southern General Hospital in Glasgow.

We set out the background to the case and explained the earlier rulings and their ramifications on this blog here and here. The key question the Supreme Court had to grapple with the meaning of the words “to participate in any treatment authorised by this Act to which he has a conscientious objection” in section 4 of the 1967 Act.

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Conscientious objection to abortion: Catholic midwives win appeal

human-foetus_1666004cDoogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36 – read judgment here

The Inner House of the Court of Session (the Scottish civil court of appeal) ruled last week that two midwives from Glasgow could not be required to delegate to, supervise or support staff on their labour ward who were involved in abortions. 

The ruling makes it clear that the conscientious objection provision in s.4 of the Abortion Act 1967 has very broad scope. This probably means that the General Medical Council (GMC), the Nursing and Midwifery Council (NMC), the Royal College of Midwives (RCM) and the Royal College of Nursing (RCN) will all need to change their guidance on the subject, since the existing versions take a much narrower view. This judgment affects England and Wales as well as Scotland (since the Act covers all three countries), but not Northern Ireland.

The facts of the case, and the original decision of Lady Smith in the Outer House of the Court of Session are covered in our previous blog post here.

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Supreme Court find A1P1 breach in retrospective legislation

19053359-2Salvesen v. Riddell [2013] UKSC 22, 24 April 2013, read judgment 

When can an agricultural landlord turf out his tenant farmer? The answer to this question has ebbed and flowed since the Second World War, but one element of the latest attempt by the Scottish Parliament to redress the balance in favour of tenants has just been declared incompatible with Article 1 of the 1st Protocol (A1P1) as offending landlords’ rights to property. The Supreme Court has so ruled, upholding the Second Division of the Court of Session’s ruling in March 2012

The reasoning is not just of interest to agricultural lawyers either side of the border. But a brief  summary of the laws is necessary in order to identify the invidiousness of the new law as identified by the Court – and hence its applicability to other circumstances.

As will be seen from my postscript, the decision of the court below to the same effect appears to have had tragic consequences.

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No prisoner votes in Scottish independence referendum – Andrew Tickell

voting copyToday, the Scottish Government have introduced the “paving Bill” to Holyrood which will finally settle the franchise for the independence referendum in 2014. If passed, it will finally extinguish the hopes of expats, diaspora Scots and those living furth of Scotland who wanted to vote in the poll.

Much of the attention has zoomed in on the enfranchisement of 16 and 17 year olds, which ministers hope to affect by establishing a Register of Young Voters alongside the local government register. It is envisaged that this young voters roll will not be published.