2 July 2015

Alistair Carmichael: The Man Who Saved the HRA?

Alistair Carmichael is clearly a lazy thinker. The former Secretary of State for Scotland secured a debate on the Human Rights Act in Westminster Hall this Tuesday. During his remarks, the former solicitor held forth at length on the devolution implications of repeal - and got his law almost entirely wrong: muddle, guddle and confusion. 

He told MPs that the Human Rights Act is "hardwired into the devolution settlements in Scotland, Wales and Northern Ireland." It isn't. He claimed that "their Acts must be compatible with" the Human Rights Act. They don't.  He concluded "it has already been established that if this is to change, at least for the Scottish Parliament a legislative consent motion would be required in accordance with the Sewel convention." He clearly wasn't listening, when this claim was directly contradicted by government ministers Michael Gove and Therese Coffey

Happily, SNP's Joanna Cherry was rather more on the ball, echoing the analysis this blog has been pushing for some time. The Edinburgh South West MP set out the terrain of potential conflict in clear, sharp detail in her speech:

"The SNP has been deeply concerned by recent statements from Ministers that suggest that they believe that the UK Government could repeal the Human Rights Act without reference to the Scottish Parliament. They argue that the Sewel convention would not be engaged because human rights are a reserved matter. That is wrong and legally illiterate. Human rights are not a reserved matter and are not listed as such in schedule 5 to the Scotland Act 1998. Schedule 4 to the Scotland Act protects the Human Rights Act against modification by the Scottish Parliament, but human rights per se are not a reserved matter. It was part of Donald Dewar’s scheme that all matters would be devolved unless they were specifically reserved. Human rights are not specifically reserved. 
Moreover, human rights are written into the Scotland Act. The European convention on human rights is entrenched in the Act through section 29(2)(d), which provides that an Act of the Scottish Parliament that is incompatible with the ECHR is actually outwith the legislative competence of the Scottish Parliament. Section 57(2) states: 
“A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with” 
the ECHR. It is therefore incorrect to say that human rights are a reserved matter. They are devolved and I urge the Minister to think carefully about the statements made by his colleagues to the effect that the Sewel convention would not be engaged.

The Prime Minister has repeatedly spoken of a “respect” agenda, and I stand here as one of 56 SNP Members elected at the general election. I urge the Government to consider their respect agenda, to return to the Scotland Act 1998 and to get their lawyers to look at it carefully. They will find that human rights are not a reserved matter and are devolved, and that the Human Rights Act should not be repealed or otherwise interfered with by the British Parliament without first seeking the consent of the Scottish Parliament. 
I want to make it clear, however, that the SNP would seek to prevent the repeal of the Human Rights Act for the whole United Kingdom. It is a fundamental issue and we want the Human Rights Act to remain on the statute book for the entire UK because, as the right hon. and learned Member for Beaconsfield said, it has brought huge benefit in terms of the accessibility of rights for people in this country."

The minister in the debate, Dominic Raab, failed to respond to any of these points. Carmichael's legal blundering isn't just innocent confusion over a technical topic -- even if we might expect better from a University of Aberdeen LLB. His fudging and his mudging can only help to disorientate opponents of Tory repeal plans, strengthening the UK government's hand, and diverting our attention away from viable stratagems of resistance. I'm sure it isn't deliberate mischief. It's just the usual incompetence and sloth. But if Carmichael is serious about defending the Act from the Tory axe, he's going to have to buck up his ideas -  or take his bungling elsewhere. 

24 June 2015

Land reform: through the looking glass

An awkward admission: by far the biggest hurdle to "radical" land reform in Scotland is the European Convention on Human Rights.

In terms of traditional political loyalties, we're through the looking glass here. Tweedy landlords, conservative estate owners and land agents may vote Tory to back the established order -- but if Gove is permitted to strip Convention rights out of Scots law, those self-same property owners would find themselves entirely at the mercy of a democratic majority in Holyrood hell bent on a substantial rejigging of the territorial map.

They may not give a ha'penny toss for many of the freedoms the ECHR enshrines, but their right to property -- well, that's a different story. Without it, they would quickly discover that their vaunted rights at common law aren't all they're cracked up to be. They'd find Magna Carta mum. People inclined to defend your Convention rights, by contrast, find themselves stymied again and again by Article 1 Protocol 1, and the right to property it enshrines. This right to property isn't absolute. States enjoy a broad margin of appreciation within which they can raise taxes, regulate property and so on -- but the right has real teeth. Fans of cognitive dissonance, eat your heart out. The basic text of the Convention reads as follows:

(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 
(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

For many land reformers, our history of a strikingly unequal distribution of landed property is a nightmare from which they are trying to awaken. Our situation recalls the well-known joke about the tourist in Ireland, seeking directions. "Well if I were you," a local replies, "I wouldn't start from here." But ownership is, inevitably, backwards looking. Without a revolution, we don't begin at year zero, with a clean slate. It isn't a matter of hitting reset and redrawing the maps. 

History also teaches us that the landed interest have the wealth and willingness to go to law where they believe their rights have been violated -- and win.  The first Act of the Scottish Parliament to be struck down by the courts on human rights grounds concerned a challenge by a landowner to the rights of one of his tenant farmers.  The owner won; the farmer killed himself shortly afterwards. These strictures aren't to be sniffed at and they aren't all that easy to get around in a systematic way. 

Although the text of the Convention doesn't expressly require the state to pay compensation to people whose property it expropriates, it has been interpreted in that way by the European Court. For example, in James v. The United Kingdom, judges made clear that the state must give fair compensation to those whose property is taken or transferred:
"... under the legal systems of the Contracting States, the taking of property in the public interest without payment of compensation is treated as justifiable only in exceptional circumstances not relevant for present purposes. As far as Article 1 (P1-1) is concerned, the protection of the right of property it affords would be largely illusory and ineffective in the absence of any equivalent principle. Clearly, compensation terms are material to the assessment whether the contested legislation respects a fair balance between the various interests at stake and, notably, whether it does not impose a disproportionate burden on [property owners]."

Compulsory purchases can be justified in the general interest -- but kicking the lairds out of their castles and estates without stumping up cash is doomed from an ECHR point of view. As a result, finding a mechanism which (a) effectively redistributes and rebalances land ownership while (b) working within the current owners' right to property ain't easy. 

In the Land Reform (Scotland) Bill, we find the Scottish Government's latest attempt to do so. You'll find the most controversial provisions in Part 5 of the Bill, which sets out a revived right to buy.  That right will only be exercisable by community bodies or a third party which they nominate -- and with consent of Scottish Ministers. Ministers must not consent to the transfer of the land unless all four of the following criteria are met. And the criteria to be met are pretty ferocious.

  1. The transfer of land is likely to further the achievement of sustainable development in relation to the land, 
  2. The transfer of land is in the public interest
  3. The transfer of land - (i) is likely to result in significant benefit to the relevant community  and (ii) is the only practicable way of achieving that significant benefit, and 
  4. Not granting consent to the transfer of land is likely to result in significant harm to that community.

The third and fourth conditions are particularly onerous. Perhaps reflecting this, if would-be purchasers fail to secure consent, Scottish ministers will foot the bill for their application. If the community body does get the nod, however, the Scottish government will appoint a land valuer, who will independently assess the market value of the land, giving the parties the opportunity to contribute to the deliberations on fair compensation. The government will foot the bill for these valuations too, and if the owners or purchasers are disgruntled, they'll be able to go to the lands tribunal and air their dissatisfaction. Once the decision has been taken, owners will not be allowed to foil the process with a quick fire sale or sneaky transfer to their preferred purchaser. 

The land lobby have predictably attacked these criteria as vague and undefined, crying Mugabe, land grabs and bloody murder. They are nothing of the sort. The language of the legislation is necessarily impressionistic, allowing ministers to apply broad principles to different situations and applications from across the country. But surely the landowners are - also characteristically - protesting too much here. A thick vein of (understandable) caution runs through these proposals. As politicians and property owners shadow box, enjoying the mutual recrimination and batting at phantoms, a property lawyer friend summarised the reality more pithily.

"This Bill is not as radical as claimed by Scottish Government (given the thresholds for use of power to sell). Not as awful as claimed by landowners (for similar reasons). Basically, making something like this ECHR proof means they can't do something revolutionary."

There's a lesson somewhere in here for Tory enthusiasts of human rights repeal. When you're through the looking glass, you should be careful what you wish for. 

Gove: "in this parliament, human rights are a reserved matter"

Thanks to Jack of Kent, who alerted me to the House of Commons justice questions which took place yesterday.  A couple of SNP MPs took the opportunity to ask the Lord Chancellor about his government's repeal plans. Michael Gove indicated that he is due to meet the SNP Cabinet Secretary for Justice, Michael Matheson, next week. But new Aberdeen North MP, Kirsty Blackman, went on, putting the following to him: 

"The Minister will be aware that the Scottish Parliament voted by 100 votes to 10 to endorse the Human Rights Act last year, and that parties representing 58 of the 59 Scottish Westminster seats are against the repeal. Will the Minister make a commitment to not imposing the repeal on Scotland against the will of our people?"

 Gove's reply is remarkable. 

"She makes a very powerful point about the range of opinions in support of safeguarding, enhancing and indeed modernising our human rights in this country. I shall look forward to engaging with the Scottish National party and others, but I think it is important to stress that in this United Kingdom Parliament, human rights are a reserved matter, and parties that support reform of the Human Rights Act secured more than 50% of the votes at the last general election."

Which is, of course, rubbish. Human rights are categorically not a reserved matter, "in this United Kingdom Parliament", or anywhere else. Rummage through Schedule 5 of the Scotland Act, and you won't find them listed. Indeed, the only reference to human rights in the big list of things Holyrood cannot do makes clear that the issue of "observing and implementing international obligations, obligations under the Human Rights Convention" is not reserved.  

As Joanna Cherry's Scotland Bill amendment flushed out on Monday of last week, Gove's only argument that the Sewel convention doesn't apply is far narrower than his imperial answer suggests. Constitutionally, the fact that Mr Gove feels he has a Commons mandate is neither here nor there.  To quote section two of his government's Scotland Bill, "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."

Yet more slapdash legal homework from this incompetent government,  The shambles continues.

18 June 2015

HRA repeal: Let's make Gove walk burning coals...

Scotland Bill Monday taught us that Her Majesty's government in London believes that it is within its legal and constitutional rights to repeal the Human Rights Act without reference to Holyrood. They argue that the Sewel convention is not engaged, that the Act is a reserved matter, and that MSPs should get stuffed. 

By contrast, Cabinet Secretary for Justice, Michael Matheson, has indicated that the Scottish Government "will robustly oppose any attempt by the UK Government to repeal the Human Rights Act or to withdraw from the ECHR." Nicola Sturgeon has already said that "the SNP Government will invite the Scottish Parliament to refuse legislative consent to scrap" the Act. 

In more consensual times, issues of this kind tend to be worked out amicably between the UK and Scottish governments, with ministers cooperating to bring the consent motions before Holyrood for assent or rejection. But here, Scottish and UK ministers are now on course for a fundamental, head-on collision; one government arguing that Sewel is engaged, the other arguing that it is irrelevant. We're in the debateable lands of a constitutional crisis. So here are couple of ideas for MSPs of whatever stripe, who are keen to give the Tory government as rough a time as possible in their attempt to roll back our basic rights. 

1. Get ahead of the game. Seize the initiative. Why doesn't the Scottish Parliament Justice Committee, or Holyrood's Devolution Committee, take it upon themselves to conduct a short enquiry on whether Therese Coffey's high handed and complacent Commons answer was right? This is a fundamental question of Holyrood's legal prerogatives. There is no excuse for a rushed, cack-handed panic once the Tory government publish their Bill. As Malcolm Tucker might say, we should get our retaliation in first. Pile on the pressure. 

The Tory manifesto pledged the new government to axing the Act. This isn't a hypothetical proposal. All we are now awaiting is the detail. Why not anticipate it? Cameron's repeal plans have been delayed. MSPs should seize the opportunity that represents.  Let's fill the legal vacuum between David Mundell's ears. Take evidence. Get the Law Society in. Invite the Scottish Human Rights Commission. Academic types. 

Summon learned witnesses like Iain Jamieson to come along to air their views. A retired UK and Scottish Government lawyer, Jamieson headed the team of lawyers who instructed the drafting of the Scotland Act 1998 -- and argues, contra Coffey, that Sewel would clearly be engaged by HRA repeal. He would be well-placed to give our politicians a steer so that the debate on human rights reform can be conducted in full knowledge of the arguments. MSPs can make it so and exploit their bully pulpit. These aren't dull questions of legal technicality. They're constitutional firecrackers. Let's light them, and light them now.

2.  The Scottish Ministers don't have to dangle about uselessly.  It isn't enough to be right. It is critical to be right at the right time. Gove's delays represent a perfect opportunity for strategic preparation. So here's another scheme which our politicians would be canny to consider. Once the UK government publish their repeal Bill, the Scottish government should immediately lay a legislative consent motion before Holyrood, based on its own legal analysis, inviting MSPs to knock the proposal back. The matter is then referred to a Holyrood committee for scrutiny. All the better if that scrutiny has already been anticipated, and evidence already taken.   

Westminster is not in charge of this process. Whitehall's constitutional analysis is not final. Holyrood has standing orders on the procedures for indicating legislative consent -- and Scottish ministers retain considerable initiative. There is precisely nothing that Michael Gove or David Cameron or David Mundell can do to prevent the Scottish Government from tabling a motion on its own initiative with a view to convincing members to decline to give consent. So let's do that too. 

Like the Deputy Leader of the House of Commons -- the Prime Minister and his cabinet colleagues may believe that the Human Rights Act is theirs to destroy. Westminster remains sovereign. Tory MPs can ram through Human Rights Act repeal if they want. But they should be forced to do so in the teeth of the noisiest opposition possible. They should be forced to run roughshod over our devolved institutions and constitutional conventions. If they think the prize of repeal is worth traversing the burning coals, let their soles burn. 

Does repeal of the Human Rights Act require Sewel consent?

That's one of the critical questions in the legal and political battle against Tory plans to abolish the Human Rights Act.

Iain JamiesonProfessor Christine Bell and yours truly have argued that "axing the Act" would and should require Holyrood's consent under the Sewel convention -- which could be withheld. Hitherto, the UK government has been keeping its legal cards close to its chest. Gove has been mum. The Secretary of State for Scotland turned in a car-crash interview on Radio Scotland shortly after the election, in which he showed no awareness whatever of the devolved implications of his government's repeal plans. Little has been said since. Until last Monday, that is. 

Responding to Joanna Cherry's human rights amendment to the Scotland Bill in Westminster, Deputy Leader of the House, Therese Coffey, responded for the government. Significantly, she claimed that the Human Rights Act should be seen as a matter reserved to Westminster, invoking precisely the logic I warned about on Monday. She told MPs:

"The hon. and learned Member for Edinburgh South West referred in particular to amendment 67. Indeed, the right hon. Member for Orkney and Shetland said that this matter should be consistent across the UK, reinforcing that this is a reserved for the UK Parliament and not a devolved matter. The hon. and learned Lady said that the UK Government had not been clear on some aspects of this matter. I believe that the Prime Minister has been clear at this Dispatch Box. Amendment 67 would amend the Bill such that paragraph 1 of schedule 4 to the 1998 Act would be modified to remove the Human Rights Act 1998 from the list of legislation the Scottish Parliament cannot modify, otherwise known as the “protected enactments”. The House will be aware that the Government outlined their proposal to reform and modernise our human rights framework by replacing the Human Rights Act with a Bill of Rights. That was reinforced today by my right hon. Friend the Prime Minister at the celebration of the 800th anniversary of Magna Carta. Of course, we are aware of the possible devolution implications of reform and we can engage with the devolved Administrations as we develop the proposals. As the Secretary of State said, the Sewel convention, as intended by Lord Sewel, has been placed in the Bill, but this Parliament remains sovereign. The Government are certainly committed to human rights and, as I indicated earlier, we will consider the devolution implications."

Pete Wishart intervened, grouchily (and a bit inaccurately):

"That is just not good enough. These are fundamental and profound issues for the Scottish Parliament. We are dependent on the Human Rights Act for the competence of the Parliament. Will the Minister vow to go forward, make sure this is looked at properly, and come back with a more suitable and substantial response?"

And Coffey replied:

"The hon. Gentleman is right that these are important matters, and I can assure him that my right hon. Friend the Secretary of State is engaging with the devolved Administration as we develop the proposals. It has to be said, however, that the amendment is squarely outwith the Smith commission agreement, which contained no proposals in this respect. The hon. and learned Member for Edinburgh South West herself said it was not directly a matter for the Scottish Parliament."

In a nutshell, this suggests the Westminster government will argue that by dint of its inclusion as a protected enactment in Schedule 4 of the Scotland Act, the Human Rights Act is a reserved matter and Holyrood's consent is not required for the Tory majority to repeal the Act north and south of the border. Coffey's answer did not address the arguably more important question - will consent be required to enact a British Bill of Rights?  

But a straw in the wind. 

16 June 2015

Nationalism without regrets

During the referendum campaign, I often described myself as a nationalist with regrets. Support for independence first came to me as a cherished family hand me down. But reappraising this inheritance with new, more adult eyes, I came to see and understand these ambitions differently. In some moods, my cynicism about Westminster and Whitehall is bottomless. I contemplate self-determination unflinchingly, without heartache and without bitterness. And think, unfairly, in the language of the old communist manifestos, that we have nothing to lose but our chains. Democracy, responsibility, a little hope. It seems like a fair exchange. 

But in other moments, the idea of breaking up Britain fills me with a sort of remorse. This long campaign has been conducted without violence -- but if ever it is successful, independence represents a violent break in our shared history. Tumult. Possibility. Refashioned tries. Redefined relationships. It will be a creative destruction -- but somehow a destruction nevertheless. In these moods, this long family and national project can seem, not like a noble emancipation, but an evil made necessary by disappointment and frustration, by lack of ambition and want of statecraft. For all of the Yes campaign's vaunted enthusiasm and positivity, it was also positive case informed by a counsel of pessimism and despair

This doubleness might help explain why so many of you believed this year's April Fool. With a little imagination, I find that the language of unionism comes fairly naturally to me. Despite the organised dismalism of the Better Together campaign, and the weeks and months of alienations and reversals, the old story still holds some of its magic.  It was probably psychologically revealing that my first impulse, listening to Alistair Darling's faltering defence of the Union in the dying days of the #indyref campaign, was to write an alternative script he might have read.  For all of my cold-hearted lawyering, I'm basically sentimental at heart. And I'm sometimes an emotionally disloyal separatist. 

There is a positive case for the union. It may you leave you unmoved. It may shrink in significance alongside the failures and injustices and missed opportunities of British government. But I now realise: part of me isn't entirely immune to this British poetry. That part of me felt - and feels - bereft, angry and frustrated to be disappointed again and again by the union the majority voted to preserve on the 18th of September. This is strange. People often think of Scottish nationalists as a cynical lot, always willing to believe the worst of UK institutions, always unwilling to give any British proposal the benefit of the doubt. I realise I am not one of these people. I suspect many other folk feel the same way; conflicted, ambivalent and disheartened. 

As a cynical and calculating Nat, I suppose I ought to chortle at Westminster's visionless missteps and squandered opportunities, confirmed in my pessimism, biding my time. But watching the Scotland Bill dribble through Westminster last night, the Tory majority flexing its muscles to knock back perfectly sound amendments, I found myself gripped by an irrational fury and overwhelming, acidic, sense of disappointment. The bottom has finally fallen out of the bucket. I felt flat as a pancake. 

This union could be saved and remade, but this bunch of clowns don't have the heads, hearts or guts to do it. In the intellectually slight, havering, verbally stumbling figure of Secretary of State Mundell -- the ambition and vision of this government is embodied. There is nothing there. As Kenny Farquharson tweeted last night, "Smith was the Whitehall response to the indyref. So what is the Whitehall response to Scottish general election result? There isn't one." Zero. Ziltch. Nada. Zip.

A better union is not possible, and Scottish unionists are fast becoming an abandoned tribe. And I find myself becoming, less and less, a nationalist with regrets. 

15 June 2015

The SNP's clever, clever human rights gambit...

I missed out one superficially technical but politically interesting amendment in this morning's brief survey of the SNP's plans for the Scotland Bill.  Tabled in the names of Angus Robertson, Mike Weir, Stewart Hosie, Eilidh Whiteford, Joanna Cherry and Kirsten Oswald, amendment 67 proposes that:

“(1A) In paragraph 1 of Schedule 4 (protection of Scotland Act 1998 from modification), delete “(2)(f) the Human Rights Act 1998.”

Blank faces all round.  Let me fill in a bit of the background. Under the Scotland Act, Holyrood legislation must not "relate to reserved matters". These are set out in Schedule 5, and include foreign affairs and defence, and great swathes of taxation, social security policy - and so on. The other main way in which Westminster limits Holyrood's power is Schedule 4, which sets out specific pieces of legislation which the Scottish Parliament cannot modify, amend or repeal. This includes the free trade sections of the Act of Union, the core provisions of the European Communities Act -- and also the Human Rights Act 1998. 

As I have written here before, human rights fall in a funny place under the devolution settlement in Scotland.  Human rights are a devolved matter but Holyrood cannot touch the Human Rights Act. Your Convention rights are written into the Scotland Act. In making legislation, and taking decisions, the Scottish Parliament and Government must uphold your basic Convention rights. But the Human Rights Act extends much wider, to every public authority in the land. To every school, every hospital, every prison and every court.  So what is the SNP Westminster leadership up to here? Why seek to knock the Human Rights Act out of schedule 4?

Superficially, this amendment would give Holyrood the power to amend or repeal "Labour's hated Human Rights Act" -- an odd proposition from a party which has made a great hullabaloo about resisting the Tory plans for repeal.  But reading between the lines, I strongly suspect that this amendment is really about knocking down the UK government's last, best argument that it can repeal the HRA without Holyrood's consent. 

Another brief constitutional law 101. The UK parliament remains sovereign. It can, if it wishes, pass Acts related to devolved matters. But in order to respect the authority of the new parliament, the constitutional convention has developed that Westminster will not pass laws (a) relating to devolved matters or (b) amending the Scotland Act without Holyrood's consent. 

For example, the Lib-Lab coalition in Holyrood gave Westminster legislative consent to pass a pan-UK Civil Partnership Act in 2004, despite the fact that family law fell squarely within the Scottish Parliament's competencies. Consent was sought for the changes instituted by the 2012 Scotland Act. And consent was denied in 2011 for devolved aspects of the UK government's welfare reform agenda.  However, Westminster requires no consent when it legislates for reserved matters. Scottish Ministers may stamp their feet a much as they like -- but the Westminster majority rules. 

Which brings us back to Human Rights Act repeal. It is broadly accepted that introducing any British Bill of Rights would require Holyrood's consent. Its provisions would have a significant impact on devolved powers. But what about a straightforward repeal of the Human Rights Act? Would MSPs get a say or not? Is the Sewel convention engaged? The UK government has given no indication on its thinking on these questions in public. Like Iain Jamieson, I think there are already good reasons to argue that repeal would and should engage Sewel. But if I was Lord Chancellor Gove, looking for a way around the convention, my argument would run as follows -- 

Human rights may be a devolved  matter, but by dint of its inclusion as a protected enactment in Schedule 4 of the Scotland Act, the Human Rights Act is not. The Human Rights Act is reserved. Accordingly, Gove's argument would run, Holyrood's consent is not currently needed for the Tory majority to "axe the Act". Professor Mark Elliot of the University of Cambridge has also argued this case.  Expect other constitutional lawyers to do so too.  

In the light of that argument, think again about that tricksy SNP amendment number 67, and reason through its implications. If the Human Rights Act was deleted from Schedule 4 of the Scotland Act, the Act could no longer be said to be a reserved matter. If it could not longer be said to be a reserved matter, the Sewel convention would be engaged and Holyrood's consent would be required for any repeal. 

While at first glance, the amendment would empower the Scottish Parliament to eliminate human rights from the statute book, in practice, it would significantly strengthen the Parliament's hand in resisting the Tory human rights agenda. If this SNP proposal was enacted, it would knock out the Tory government's best and only argument that Human Rights Act repeal would not require Holyrood's consent. 

Clever, clever.