Devolution: Grayling's human rights petard

Joy be. "So at long last, with a Conservative Government after the next election, this country will have a new British Bill of Rights to be passed in our Parliament rooted in our values and as for Labour’s Human Rights Act? We will scrap it, once and for all." 

Earlier this week, the Tories put some flesh on the bare bones of Cameron's commitments in his conference speech, in a document entitled "Protecting human rights in the UK." The document's only reference to the implications of the wheeze for the devolved authorities in Northern Ireland, Wales and Scotland is the banal observation that:

"We will work with the devolved administrations and legislatures as necessary to make sure there is an effective new settlement across the UK."

English lawyers like Carl Gardner and Mark Elliot have already begun to put the logic of Chris Grayling's madcap scheme to the sword. To some extent submerged in all of this, however, are the implications for Scotland. And here it gets a wee bit complicated. Professor Aileen McHarg has a comprehensive blog on point up on the UK Human Rights blog which surveys the key issues. What follows is a more compressed account, given a more partisan topspin.

A couple of days back, David Maddox published a story on the Scotsman ("Scotland exempt from Tories' Human Rights axe"), which carried a remarkable, clearly edited and utterly incoherent quote from an unnamed Scotland Office spokesman, claiming

"... that human rights legislation is devolved to the Scottish Parliament because it was “built into the 1998 Scotland Act [and] cannot be removed [by Westminster]."

Cue a good deal of misplaced jubilation from folk, keen to see fundamental rights retained in Scots law. Regrettably, the comments attributed to the spokesman, and uncritically printed by Maddox, are credibility-dynamiting rot. They're abject drivel.

Firstly, the Scotland Act is Westminster legislation, and susceptible to amendment or repeal by MPs. To say something is "built into" the Act is neither here nor there. Secondly, the Human Rights Act is categorically not "written into" the Scotland Act. This is a common conflation, but an extremely problematic one. While you won't find human rights listed as a reserved matter in Schedule 5, the Human Rights Act itself appears as a protected enactment in Schedule 4. Short version: human rights are devolved, and Holyrood can pass laws concerning them, but the Scottish parliament is not allowed to repeal or to change the Human Rights Act as is.

As Aileen writes, Scotland is currently subject to two distinct human rights regimes.

The Scotland Act requires Holyrood legislation and Scottish ministers to comply with European Convention rights, but nothing more than that. If legislation or ministerial action violates your fundamental rights, you can traipse off to court and get the offending law or subordinate legislation struck down by the courts. The silence at the heart of the Tory human rights plans about what will become of these devolve protections and constraints is deafening. 

The octopoid Chis Grayling shows no awareness whatever about the devolved dimension, which extends not only to Scotland, but to Wales, and to the Northern Irish Assembly, where the incorporation of human rights formed a core plank of the Good Friday Agreement. All for the sake of a few extra votes in Essex, and the lawful authority to deport people where we reasonable expect them to be tortured, or to be subject to inhuman and degrading treatment, or the flagrant denial of justice.

So much for an ethical foreign policy. The declared aims of the Prime Minister, Theresa May, and the Lord Chancellor are nakedly monstrous and unjust. They make my blood boil. Alyn Smith was right before the referendum: there is bugger all we can do to prevent it within the Union. Not with a Tory government in the grip of a victim-fantasy and strung along by it own fairy tales.

By contrast, the Human Rights Act extends to all public authorities in Scotland. Schools, local government, NHS hospitals. If Westminster abolishes the Human Rights Act, Holyrood and the Scottish Government will remain bound over to observe Convention rights, but Glasgow City Council and the police will be liberated from their obligations to respect freedom of religion and conscience and the privacy and home life of everybody they encounter.

Cue another level of complexity: Sewel motions, or legislative consent motions. Here's where things get politically interesting. As we know, powers devolved are powers retained. Westminster retains the right in law to legislate for devolved matters. In practice, however, that right has been circumscribed by the convention that consent from Holyrood is necessary (a) where Westminster proposes to legislate in a devolved area (for example, the whole-UK civil partnerships legislation of 2004) or (b) where the UK parliament propose to change the scope of the Scottish Parliament's legislative competence (for example, the 2012 Scotland Act, which received the nod from the majority of MSPs).

Under the current convention, the proposed repeal of the Human Rights Act (insofar as it applies in Scotland) and the introduction of any British Bill of Rights proposing a different human rights protection mechanism requires legislative consent from Holyrood. Whichever way you slice it, the refusal of consent looks odds on, either to any Tory plans to (a) eliminate the ECHR provisions from the Scotland Act, or (b) to introduce any new, watered down British Bill of Rights. 

With a Nationalist administration in Edinburgh, these issues take on an additional piquancy. Much more attractive, you might well think, to adopt distinct, Scottish human rights legislation, extending to all public authorities subject to Holyrood's jurisdiction. This approach may be justified, not least, by some of the absurdities of the Bill Grayling has sketched in outline, drubbed by various legal commentators quoted above.

We might even consider folding additional rights into that Scottish legislation which are not to be found in the European Convention. The rights of children, perhaps. We can use our imaginations. As Professor McHarg notes, there is a distinct possibility of fragmentation and complexity here, as both reserved and devolved authorities operate in Scotland and both would be subject to different human rights regimes. On the other hand, let's not make the best the enemy of the good. If Cameron is returned to No. 10 with a majority, "Labour's Human Rights Act" - which was, it should be remembered, supported by newspapers like the Express when it was adopted - will be a dead letter. Far better for the Scottish Parliament to set a different example, however imperfectly.

But one thing's for sure: despite the blithe spirit of indifference animating the Lord Chancellor's fag packet proposals, the fuse has been cut and the taper set to it. The devolved politics of Human Rights Act repeal looks dead set to explode.