Will devolution scupper Conservative plans for a “British” Bill of Rights?
2 October 2014
In his speech at yesterday’s Conservative Party conference, the Prime Minister confirmed that the party’s 2015 election manifesto will include a commitment to repeal the Human Rights Act 1998 (HRA) and replace it with a “British Bill of Rights”. Last night, however, The Scotsman newspaper quoted a Scotland Office spokesman as saying that the change would not apply in Scotland. According to the article, the spokesman “confirmed that human rights legislation is devolved to the Scottish Parliament because it was ‘built into the 1998 Scotland Act [and] cannot by removed [by Westminster].’” As reported, this statement is seriously misleading. However, it does highlight genuine difficulties that devolution creates for the implementation of plans to reform human rights law.
- How does the ECHR apply in the devolved nations?
The basic problem arises from the fact that there are currently two regimes for incorporation of the European Convention on Human Rights (ECHR) into domestic law in Scotland and the other devolved nations. First, the HRA applies in the same way as it does in England. Thus, public authorities in the devolved nations, included the devolved governments, are subject to the duty to comply with Convention rights in section 6 HRA, and devolved legislation is subject to the same interpretive duty as applies to UK Parliament legislation under section 3 HRA (although it is classed as secondary rather than primary legislation for the purposes of the HRA). Secondly, however, the ECHR is incorporated directly into the devolution statutes. So, for example, under section 29(2)(d) of the Scotland Act 1998 (SA), Acts of the Scottish Parliament (ASPs) which are incompatible with Convention rights are “not law”. Similarly, under section 57(2) SA, a member of the Scottish Government “has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights ….” These provisions are narrower in scope than the HRA in that they apply only to the Scottish Parliament and the Scottish Ministers. However, they are stronger in effect, because ASPs which breach Convention rights are actually invalid, and because the Scottish Ministers are absolutely bound by the Convention rights. There is no equivalent to the defence under section 6(2) HRA that the breach of Convention rights was required by primary legislation, even if Ministers are acting under Westminster legislation. There are similar provisions in the Northern Ireland Act 1998 and the Government of Wales Act 2006 (although the Welsh Assembly Government does benefit from the section 6(2) HRA defence).
- What implications does this have for repeal of the HRA/withdrawal from the ECHR?
This dual system of human rights protection means that while the UK Parliament is free to repeal the HRA, this would not by itself end the domestic incorporation of the ECHR in the devolved nations. While people in Scotland, Wales or Northern Ireland could no longer bring Convention-based actions against UK departments and other public bodies, nor argue for Convention-compatible interpretations of UK legislation, they would still be able to challenge primary or secondary legislation enacted by the devolved institutions or other acts of the devolved governments. If the UK Government wished to go further and withdraw from the ECHR altogether – as was suggested earlier this year by some Conservative politicians –this would require amendment of the devolution legislation as well. At this point, things become constitutionally interesting. Amendment of the devolution statutes would trigger the requirement for the consent of the relevant legislature under the Sewel Convention, and there are good reasons to think that such consent would not be granted, at least by the Scottish Parliament and Northern Irish Assembly. At present, this consent requirement is only a matter of convention and so could be overridden by Westminster (although probably not without provoking a significant political backlash). However, one element of the “Vow” made to Scottish voters just before the independence referendum was a promise to entrench the Scottish Parliament’s powers. That seems to mean that the Sewel Convention would be made legally binding. Although it is not clear whether any attempted entrenchment would be effective to bind a future UK Parliament, it is unlikely for the foreseeable future that a UK Government would wish to provoke the Scottish Government by withdrawing from the ECHR against its will. A second complicating factor is the Belfast Agreement. This imposed various requirements on the UK government to ensure compliance with the ECHR in Northern Ireland. Moreover, these requirements seem to require full incorporation of the ECHR into Northern Irish law. In other words, the Belfast Agreement appears to make it impossible not only to repeal the Convention compliance provisions in the Northern Ireland Act, but also to repeal the HRA as it applies in Northern Ireland. Or at least, if the HRA is repealed, equivalent provisions would need to be enacted to ensure that all legislation in Northern Ireland and all public bodies remain subject to the Convention.
- Can Westminster enact a new UK-wide Bill of Rights to replace the HRA?
Westminster could, as a matter of law, enact a new UK-wide Bill of Rights to replace the HRA. Again, however, it might face problems in doing so. First, since a new Bill of Rights would presumably, like the HRA, apply to both reserved and devolved matters, this would also trigger the Sewel Convention. Secondly, as the Commission on a Bill of Rights discovered, it might not be easy to reach agreement on the content of a UK Bill of Rights. First, a separate Bill of Rights process is already under way in Northern Ireland, also mandated by the Belfast Agreement. Any interference with this process is likely to be resisted in case it upsets the fragile constitutional settlement that has been achieved in Northern Ireland. Secondly, some of the prime candidates for inclusion in a “British” Bill of Rights are actually English rather than British. For instance, the writ of habeas corpus has never been part of Scots law, and trial by jury does not have the same deep roots in Scotland. The autonomy of the Scottish legal system is jealously guarded, even by unionists, and in the wake of the independence referendum it would be wise to tread carefully here. Finally, there has not been the same public hostility to human rights in general, or to the ECHR in particular, in the devolved nations as there has been in England. Indeed, during the referendum debate, the Scottish Government actually promised to extend constitutional protection of human rights in the event of independence. So again any attempt to water down human rights protection via a UK Bill of Rights is likely to be resisted.
- Could the devolved legislatures adopt their own Bills of Rights to replace the HRA?
None of the devolved legislatures has the competence to modify or repeal the HRA, but they can legislate to supplement it, or to replace it were it to be repealed. It is possible, therefore, that the devolved legislatures might prefer to enact their own Bills of Rights rather than agreeing to UK-wide legislation. The major drawback, of course, would be that devolved Bills of Rights would only affect devolved matters. This could leave major gaps in the system of human rights protection and/or create significant confusion about which human rights regime applies. For example, the Scottish police would be subject to different rights obligations depending upon what type of offences they were investigating (terrorism or drugs offences, for instance, being reserved matters, while most other crimes are devolved).
- What are the constitutional implications of having different human rights regimes in different parts of the UK?
The constitutional implications of the proposal to repeal the HRA are messier than they might first appear. Rather than creating an indigenous UK-wide human rights regime, we might end up with a patchwork of different regimes in different parts of the state. This might seem strange in principle. But of course there are already differences in the ways in which particular rights are protected in practice. For instance, the right to a fair trial is protected differently in Scotland and England because they have separate criminal justice systems. Arguably this is less objectionable than differences in the basic rights guarantees themselves; after all, we know that there can be more than one way of satisfying the same right. But as this note has explained, there are currently also greater differences in the fundamental rights regimes in different parts of the UK than many people realise. At a time when the constitutional imperative is to reinforce the Union, however, creating greater constitutional differences between the constituent parts of the UK seems counter-productive. The reality is, though, that the ECHR performs this unifying function more successfully than any home grown Bill of Rights is likely to. Aileen McHarg is Professor of Public Law at the University of Strathclyde.
I live in Wales, but if I have a case which needs to go to the high court in England to start it, for example, a defamation claim, or, I appeal a case to the high court, would that mean that the judges of the English high court would have to take account of the Welsh’s commitment to the ECHR, or their version of it? It appears to be very messy. I could have a more favourable outcome than the ‘same’ case being brought by an English litigant. The law is complex enough… how are the English judges going to keep up with the differences generated by the English Bill of Rights and the case law coming out of Strasbourg?
Thank you Prof McHarg. Bravo!
The fiasco that promising in a manifesto, and then winning a UK-wide general election, would bring down upon the heads of the Tories, is (you have explained) far more hilarious than I had realised, already amused, when I penned the third comment (about a day ago), at
The phrase that springs to mind is, “Those whom the gods wish to destroy, they first make mad.”
First they casually redefined marriage. Then they risked having to redefine the United Kingdom itself, disastrously. They back-pedaled furiously in last-minute panic when they realised they might lose their foolish gamble. They averted utter disaster only at the cost quelling the rebellion of the “rebellious Scots to quell” of the least-sung verse of the UK’s national anthem, by dishing out promises to redefine the UK only slightly less disastrously than they had risked. And now this!
A partial solution to their self-made problem might be to repeal the HRA and to pass the BHRA (British Human Rights Act) first, and only afterwards to pay over the bribes promised to the (thank God!) loyal Scots referendum electorate; which electorate incidentally included (say) English students at Scots colleges, and numerous Scottish minors, but which excluded mature Scots adults presently living in (say) England.
But repealing the HRA even then would be like trying to pull out a screw with a pair of pliers, as if it was a mere nail.
Better off together? I agree! Let me put it this way: The Tories would definitely be better off if they were (so-to-speak) a great deal less “untogether” than they are. Paraphrasing, Mr Cameron need not bother hanging a “do not disturb” sign on his external bedroom doorknob at his next hotel, because he is already about as “disturbed” as I’d ever have envisaged a British PM could ever be, in my lifetime, if he is planning an escapade as problematic as repealing the HRA.
And for why???
Oh Aileen, what fools they all are!
You’ll find that the line is actually “rebellious Scots to crush” which pretty much sums up Westminsters attitude to Scotland and the Scots since 1707 and before! The fight for independence is far from over! SAOR ALBA!
As long as we remain in the EU we have to “look to” the ECHR, for the EU itself is to become a member of the ECHR too, therefore, as long as we remain in the EU we will also be in the ECHR-like it or not. However, on the other hand, if our Government puts forward a new ECHR and puts it to the people here in the UK to vote for it, and if they do accept it, it will be said that they in accepting the “NEW” they have over-riden our own Bill of Rights 1688/9 and Magna Carta both of which we have had for hundreds of years, and fought in two World Wars to keep both. This suggestion was also tried in 21 July 2008 See Hansard. However, the easiest way is to get out of the European Union itself and we would automatically be able to get out of the ECHR at the same time. Which remainds me. Exactly why are we in the European Union when we have got two Houses in our Parliament that can no longer “GOVERN” this Country according to its long standing Common law Constitution and all have to obey the orders of foreigners just like WE are supposed to do? Why are we voting for them and paying them plus vast expenses when they cannot Govern us by and through our very own Common law Constitution and,-ACCORDING TO LAW?
WILL THAT BE DOWN TO A PEOPLE VOTE AFTER ALL WE DO HAVE A SAY IN OUR RIGHTS
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