…or why we need to get a grip on multi-level legislature.
It has long been the Conservative Party’s intention to repeal the Human Rights Act 1998 [the ‘HRA’] and replace it with a British ‘Bill of Rights’ (which would actually be an ‘Act of Rights’). Now that there is a Conservative government, this is very likely to happen. But what would getting rid of the HRA mean? Would it achieve what proponents of the move believe it would, and what would it mean in a Scottish Context? When you explore these questions, and untangle the myriad of interwoven Human Rights protections in the UK Constitution, it appears that repealing the HRA alone would be of very limited effect and could cause serious constitutional issues in a devolution context.
The HRA was passed in 1998 and changed the UK’s relationship with Human Rights in three major ways.
- The European Convention on Human Rights [The ECHR] could now be relied on in domestic courts. It made international law an inherent part of the domestic law as well. This means people can use ‘Human Rights arguments’ just as easily in the Supreme Court in London (or the Court of Session in Edinburgh) as they can in the European Court of Human Rights in Strasbourg. [s.2 HRA]
- Public Authorities in the UK could no longer act in a way that was contrary to ECHR Rights unless they absolutely had to because the law made them. This includes public hospitals and local councils, but also courts and tribunals, which means that judges and decision makers have to consider the Human Rights implications in all of their judgements. [s.6 HRA]
- Courts are bound to interpret legislation in a way which is compatible with ECHR rights, so far as it is able to do so. If, it finds, there is no way a law can ever be read in a Human Rights compliant way, then the law still applies but the court is able to issue a “declaration of incompatibility” which…declares the law is incompatible. [HRA ss.3 & 4]
Using the example of a prisoner wanting to vote in an election; Article 3 of Protocol 1 [A3P1] provides for free and fair elections, where people are allowed to vote, which has been interpreted to include prisoners (or at least exclude a blanket ban on all prisoners). Point 1 allows our hypothetical prisoner to argue the A3P1 case in Scotland, and not have to have the expense of a European legal trip. Point 2 means that it were there any doubt in the law, the Electoral Commission would have to act in accordance with A3P1 and give our prisoner the vote – but unfortunately the Act of Parliament depriving out prisoner of the vote is very clear. But Point 3 means that, even though there is no way the law can be read as complying with the UK’s A3P1 duties, the court can still issue a Declaration of Incompatibility, bringing the problem to Parliament’s attention and showing the issue. Unfortunately for our prisoner, however, the law remains enforceable and they still can’t vote in the election.
The HRA makes Human Rights a central part of our legal framework in many situations. The above steps would apply if it was someone who felt they’d not been respected at work; mistreated in an NHS hospital; not had their immigration application properly considered; or felt their religious freedoms were under attack. Underpinning all of this is the fact the UK was one of the founding members of the Council of Europe and signed up to the ECHR in the 1950s after playing a key role in drafting it. The ECHR protected Human Rights from a far away place for those who could afford it; the HRA brought Human Rights home and allowed British Judges a lot more room in applying European Jurisprudence in a British context. It also ensures that, as a nation, we do all we can, in our laws and in our institutions, to uphold the norms and values we claim to cherish.
But, the HRA is not the only use of the ECHR in our domestic constitution. The Scotland Act 1998 [the “SA”] states in s.29(2)(d) that the Scottish Parliament cannot legislate contrary to Convention Rights, and any provision which professes to do so is not law. This is clearly a much stricter regime than the HRA imposes on the UK Parliament. The HRA says “you shouldn’t legislate contrary to the ECHR, and we’ll try our hardest to read the law in line with the ECHR, but if you do it anyway, the law will still apply”, while the SA takes an approach much more akin to the US Constitution, “these are the limits of your power and you cannot cross them, because if you do the law you attempt to pass will not be law at all”. This provision is separate to the HRA – repealing the HRA will not change this.
What it would change would be, say, Glasgow City Council’s duties re. Human Rights. Local authorities, like all public authorities, as I said in Point 2 above, bound to act in accordance with ECHR rights at all times, unless it is required to act otherwise by law. If the HRA was repealed, Glasgow City Council, like all other councils across Scotland and the UK, would no longer be burdened by this duty. It could, then, act to ban all parades of a religious or political nature in the city centre – as is within its power as a local authority. It would arguably go against the ECHR (particularly Articles 9 and 10), but it is now able to take decisions that do not respect Human Rights.
The Scottish Parliament, however, if it attempted to take that very same decision, would be acting outwith its power by virtue of the provisions in the Scotland Act 1998, because Acts of the Scottish Parliament would still have to comply with the ECHR compatibility obligation.
There is, however, a further constitutional twist in the Human Rights tale. Under the Scotland Act 1998, the Scottish Parliament is unable to amend or repeal the Human Rights Act (as it is a ‘protected provision’ under Schedule 4 p.1(2)(f)). HOWEVER, ‘Human Rights’ more generally are not listed as a reserved competence in Schedule 5, meaning that the Scottish Parliament could competently legislate re. Human Rights. This has two important implications:
- Under the Sewel Convention, the UK Parliament will seek consent from the Scottish Parliament when it will legislate re. a devolved matter. If Holyrood (as it most likely would) withholds its consent to HRA repeal, then the UK Parliament could still legislate [SA s.28(7)] but would likely experience major political fallout, at a time when that could stretch Scots-Anglo tensions more than ever. This is a fallout that would be increased because Clause 2 of the ‘Draft Scotland Clauses 2015’ will also “…recognise that the Parliament of the UK will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament” – linking HRA repeal into the almighty and ever-pervasive vow!
- Even if the UK Parliament did repeal the HRA 1998, because ‘Human Rights’ is a devolved matter, there would be nothing to stop the Scottish Parliament introducing a Scottish Human Rights Act to replace it in Scotland. This would bring Scottish public authorities (Local Authorities, Scottish Government Organs etc) back into the scope of the ECHR – but would have a limited effect on UK public Authorities operating in Scotland (such as the Asylum Tribunals, where Human Rights have played an increasingly important part over the last 20 years). This would also, inevitably, lead to a rash of cases about the Scottish Parliament’s competence and where the ever-fuzzier lines between UK and Scotland exists.
I’ve not even touched the important part the HRA plays in the Good Friday Agreement…but from a purely Scottish perspective, it’s already clear to see how difficult it will be to separate out the ‘European Rights’ from our domestic law. Some would argue, and I am one of them, that this is because, fundamentally, these are British Rights. Others would say that this serves as proof of just how much British sovereignty has been lost since the Human Rights Act came into being. You can make of this situation what you will, but I leave you with this: the UK wins 99.5% of all Human Rights cases it faces in the ECtHR, and as decade and a half long issue of prisoners’ rights to vote shows, even those we lose don’t make us change anything quickly – it is at home the HRA and Human Rights have had the largest effect. Is that really a problem?
If you want more info on what the Human Rights Act, the ECHR and Human Rights more generally mean to you, then visit the brand new RightsInfo.org, which has stories, graphics and stories about how human rights have shaped and improved the UK. It’s brilliant.