Are human rights in Scotland under threat?

The Human Rights Act 1998 brought the European Convention on Human Rights into UK law. The UK Government has argued that the Act should be repealed and replaced with a “British Bill of Rights”.  The proposals are controversial and have been delayed until after the EU Referendum. The SNP, and others, have argued that the Scottish Parliament would have to consent to any repeal under the Sewel Convention. There could, therefore, be constitutional implications.

The European Convention on Human Rights

The Convention was set up in the aftermath of the Second World War by members of the Council of Europe,[1] an intergovernmental body which now has 47 member states, including the UK. The Convention came into force in 1953 and is aimed at protecting fundamental rights such as the right to life, the right to liberty and the right to freedom of expression.

Under international law, all member states of the Council of Europe have to comply with the Convention. Individuals can bring claims of violations to the European Court of Human Rights European Court of Human Rights in Strasbourg and there are mechanisms for judgments to be enforced in member states (to a large extent dependent on political pressure).

The Human Rights Act 1998

For many years the Convention was not part of UK domestic law which meant that individuals seeking redress had to take cases to the court in Strasbourg. This changed when the Human Rights Act 1998 came into force in October 2000. Since then, UK courts have to take judgments of the Court of Human Rights into account. Legislation also has to be read in a way which is compatible with the Convention and it is unlawful for public authorities to breach Convention rights. The Convention is also incorporated into the devolution settlement through the Scotland Act 1998. Acts of the Scottish Parliament which breach the Convention (defined by reference to the Human Rights Act) are unlawful and can be struck down in the courts.

The UK Government’s proposals

On 2 October 2014, the Conservative Party published proposals for reform which built on its long-standing critique of human rights institutions (Conservatives 2014).  Amongst other things, the reforms argued that the Court of Human Rights had developed “mission creep” by expanding into areas beyond the Convention’s original intentions. A key area of controversy is voting rights for prisoners where the UK government (including the previous Labour administration) has been locked in a battle with the Court of Human Rights for more than 10 years and has consistently refused to follow its judgments (Caird 2016).

The Queen’s Speech in May 2015 also included a commitment to replace the Human Rights Act, but did not include any details (UK Government 2015). However, press articles and debates in the UK Parliament suggested that judges might be given more room not to follow judgments of the Court of Human Rights and that any new law might only apply in the UK so that, for example, it would not cover the armed forces acting overseas (The Sunday Times 2015, The Independent 2015).   Government statements indicated that a key goal would also be to change the law in relation to criminals and terrorists (both areas of recurrent media controversy since the coming into force of the Human Rights Act) (UK Parliament 2015).

The UK Government originally indicated that its proposals would be published by Christmas 2015. Publication was, however, delayed a number of times and it now appears that any proposals will not be published until after the EU Referendum in June 2016.

The debate 

The Human Rights Act affects almost all devolved and reserved policy areas, including criminal law/policing, healthcare, immigration, national security, and education. It can therefore impact on the state’s options in terms of policy development.

Campaigners against the proposals have argued that they would have a regressive effect and would impact on the state’s powers over individuals in a negative way. There have also been arguments that the claims made about the current system are based on inaccurate statistics and media myths.  This view is expressed for example by Rights Info on its websitewebsite.  Major human rights groups such as Amnesty and Liberty have been heavily involved in this debate and all the major UK-wide opposition parties have come out against the proposals, as have the SNP. The UK Government’s proposals have also proved controversial in Scotland – this is reflected in the recent inquiry of the Scottish Parliament’s European and External Relations Committee into the subject (Scottish Parliament 2016).

Proponents of the policy, such as the Secretary of State for Justice, Michael Gove MP, stress, however, that some sort of realignment is necessary, arguing that the Human Rights Act can undermine UK courts and the sovereignty of the UK Parliament (UK Parliament 2016).  Arguments have also been made that a new law is needed so as to provide UK “glosses” on certain rights (for example more of an emphasis on freedom of expression as opposed to privacy rights).

Scotland – devolution settlement

While there are contrasting views, some commentators have argued that repealing the Human Rights Act could trigger the Sewel Convention – i.e. the principle that the UK Parliament will not normally legislate in devolved areas without the consent of devolved legislatures. Although the Scottish Parliament has no right itself to amend the Human Rights Act as Schedule 4 of the Scotland Act specifically prohibits this, there is an argument that the repeal of the Act at UK level would change the devolved powers of the Scottish Parliament since the requirement to comply with Convention rights (defined by reference to the Human Rights Act) would fall. The SNP has indicated that, if it has a majority in the Scottish Parliament, it would not give legislative consent.  However, while the SNP did not achieve an overall majority in the 2016 parliamentary elections, given the views of most parties represented in the Parliament, it seems likely that a majority of MSPs would withhold legislative consent in such a scenario.

What next?

The repeal of the Human Rights Act has the potential to have wide-ranging policy and constitutional implications. The proposals have, however, been delayed on various occasions and there is perhaps a question mark as to how the policy will develop. From a narrow political perspective the fact that the UK Government only has a small majority in the House of Commons is likely to be crucial, as certain moderate Conservatives such as the former Attorney General, Dominic Grieve, have indicated that they do not support the proposals.

[1] This should not be confused with the European Council – one of the EU’s legislating institutions.

Angus Evans

Sources:

Caird, J. (2016) Prisoners’ voting rights: developments since May 2015, House of Commons Library Briefing Paper Number CBP 7461. Available at – http://researchbriefings.files.parliament.uk/documents/CBP-7461/CBP-7461.pdf [Accessed 27 April 2016]

Conservatives (2014) Protecting Human Rights in the UK, The Conservatives’ Proposals for Changing Britain’s Human Rights Laws. Available at – https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf  [Accessed 27 April 2016]

Scottish Parliament (2016) Human Rights Inquiry, European and External Relations Committee. Available at – http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/92540.aspx [Accessed 27 April 2016]

The Independent (2015) Michael Gove to tell judges they can ignore European Court of Human Rights rulings, Cooper, C., 8 November 2015. Available at – http://www.independent.co.uk/news/uk/politics/michael-gove-to-tell-judges-they-can-ignore-rulings-from-european-court-of-human-rights-a6726181.html [Accessed 27 April 2016]

The Sunday Times (2015) Human rights law to be axed, Shipman, T., 8 November 2015. Available at – http://www.thesundaytimes.co.uk/sto/news/Politics/article1630327.ece [Accessed 27 April 2016]

UK Government (2015) Queen’s Speech 2015, Speech. Available at – https://www.gov.uk/government/speeches/queens-speech-2015 [Accessed 27 April 2016]

UK Parliament (2015) Daily Hansard – 8 September 2015: Column 201, Debate, Commons debates, Hansard. Available at – http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150908/debtext/150908-0001.htm [Accessed 27 April 2016]

UK Parliament (2016) Revised transcript of evidence taken before The Select Committee on the European Union Justice Sub-Committee Inquiry on the Potential Impact on EU Law of Repealing Human Rights Act, House of Lords. Available at – http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-justice-subcommittee/potential-impact-of-repealing-the-human-rights-act-on-eu-law/oral/28347.html [Accessed 27 April 2016]