Scotland, Sewel, and the Human Rights Act

18 July 2015 by David Scott

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. 

by David Scott

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).

The oft-quoted representative of the Scotland Office’s maxim (“human rights legislation is devolved to the Scottish Parliament because it was “built into the 1998 Scotland Act [and] cannot be removed [by Westminster]””) is sadly mistaken. It’s true that the Scotland Act enshrines a number of human rights protections. Section 29(1) states that “an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament”, with section 29(2)(d) listing incompatibility with “any of the Convention rights” as outside legislative competence. Similarly, under section 57(2), 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 sections, however, incorporate Convention rights directly, entirely bypassing the Human Rights Act.

As Professor Aileen McHarg explained before on this very blog, this effectively leaves Scotland with two co-existent domestic human rights regimes: the narrower protection guaranteed by the Scotland Act, and the wider duty on public authorities guaranteed by section 6 of the Human Rights Act.

While Schedule 4 of the Scotland Act does list the Human Rights Act as an “enactment protected from modification”, this only prevents modification by an Act of the Scottish Parliament—it gives no protection from Westminster. Basic constitutional theory tells us that nothing can be protectively “written into” the Scotland Act; the Human Rights Act was passed by the Westminster Parliament, and that very same Parliament can choose to repeal it. 

Sewel and the Scotland Act

Now this is where things get interesting. While the Human Rights Act is protected under Schedule 4, human rights at large in Scotland are not a reserved matter under Schedule 5. And while Westminster can legislate to alter its own law, it cannot legislate on non-reserved matters without taking into account something called the Sewel Convention—the agreement that Westminster will only act on Scottish matters with the consent of Holyrood.

A little history on the Sewel Convention. Named after Lord John Sewel, the Scottish Office Minister in the House of Lords who oversaw the enactment of the Scotland Act 1998, it was later put on record in the 1999 Memorandum of Understanding concluded between the UK Government and the devolved administrations. While obviously useful to protect the fundamental purpose of devolution—that is, legislative control free from Westminster interference—it has widely been utilised as a harmonising measure, allowing devolved legislatures to vote on the adoption of so-called “Sewel motions” to authorise Westminster changes on devolved matters. Sewel motions have been used to introduce UK-wide legislation on, amongst other things, civil partnerships, adoptions, children, and tobacco advertising.

Let’s return to the HRA. If its repeal would affect the devolved matter  of human rights in Scotland—which it would, removing the wider domestic applicability of the ECHR for the police, schools, local authorities, prisons, etc etc—then the Sewel Convention would kick in, requiring Parliament to seek Holyrood’s approval before making any legislative changes. First Minister Nicola Sturgeon has made it clear that she will seek cross-party support to block repeal of the HRA, meaning Holyrood acquiescence will not likely be forthcoming.

Couldn’t the Government simply bulldoze its repeals through, even without authorisation from up North? There’s a twist in the tale. The Sewel Convention is set to be written into the Scotland Act by the Scotland Bill, which is currently making its way through Parliament. Section 2 of that Bill would add:

“The Sewel convention

In section 28 of the Scotland Act 1998 (Acts of the Scottish Parliament) at the end add—

“(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.””

Now it’s likely that Scotland already sat on pretty strong legal grounds—considering the long-standing existence of the Sewel convention—to argue that action without Scottish approval would be illegitimate and ineffective. But the express writing-in of the convention to the Scotland Act would make it impossible to ignore.

As discussed at the head of this article, there are rumours the Government is considering a more piece-meal repeal of the HRA, limited to  England and on reserved matters. One can already foresee the headaches this would cause. Take as one example the proposed Public Services Ombudsman, who would take over the remit and responsibilities of both the existing English ombudsman bodies and the UK-wide jurisdiction of the UK Parliamentary Ombudsman. With different human rights arrangements throughout the UK, the potential operational difficulties are obvious.

 A final thought

Let’s say that, somehow, the Government proceeds to repeal the Human Rights Act nationwide, either in violation of the Sewel convention or off the back of a UK-wide referendum. There’s a final Scottish wrinkle to the story. Following the election, Sturgeon made clear that her party would not seek a second referendum on Scottish independence unless there is “a change of circumstances that has led to people by majority opinion wanting another referendum”. What kind of change in circumstances? “It would have to be something like the EU situation, if there was an out vote across the UK and Scotland wants to stay in”.

It is possible that unilateral repeal of the HRA by Westminster would produce “the groundswell of anger among ordinary people in Scotland” to “produce a clamour for another independence referendum which may well be unstoppable”. Would the SNP win on such a manifesto promise? Would Westminster allow another referendum, or accept its result? Could Scotland claim a right to unilateral secession in the face of Westminster refusal? (The last one may be a stretch.)

Those are questions for another time. But it’s worth considering the bind the Government has placed itself in. Abandon its plans because of devolution disagreement and face the wrath of its most ardent unionists; force through its plans and again risk breaking apart the UK.

(For a discussion of the potential constitutional fallout in Northern Ireland see the Director of the Committee on the Administration of Justice, Brian Gormally’s paper here.)