10 May 2015

Scotland and Human Rights Act abolition...

With tidings this morning that David Cameron has charged Michael Gove with abolishing "Labour's Human Rights Act", there is a good deal of confusion and misinformation doing the rounds online about the Scottish angle.  

Isn't the Human Rights Act written into the Scotland Act? Can Holyrood resist Tory moves to repeal the law? What about the devolved parliaments in Wales and Northern Ireland? Will Europe wear it?

The answers to these questions is a wee bit complicated. Back at the end of 2014, I took a critical look at these concerns. Professor Aileen McHarg of the University of Strathclyde has also written this more comprehensive treatment.  The short version? The Human Rights Act is not written into the Scotland Act. This is misleading, and increasingly unhelpful, shorthand. Under the devolution legislation, Acts of the Scottish Parliament and decisions of Scottish ministers must comply with European Convention rights. 

If they do not, you can take your case to the Court of Session, inviting judges to strike the offending laws or decisions down. The powers of both the legislature and executive are checked. But the Human Rights Act goes further, requiring all public authorities in the United Kingdom - prisons, police officers, councils - to respect your rights to free expression, privacy, property, liberty, and so on. We have two distinct human rights regimes in this country, and if the HRA is repealed, it will require only Holyrood and the Scottish Ministers to take these fundamental rights into account.

But there is another important technicality here. Human rights aren't reserved matters under the Scotland Act. The Human Rights Act is a protected enactment under Schedule 4 of the devolution legislation -- meaning that Holyrood cannot repeal or amend it -- but human rights are devolved. Several stormy legal and political consequences flow from these facts, more fully explored in my 2014 blog.  

So, big questions for Mr Gove: will your government attempt to eliminate the ECHR rights enshrined in the Scotland, Wales and Northern Ireland Acts? What if Edinburgh, Cardiff and Belfast reject the idea? Will you crack on anyway? What if the majorities in the devolved legislatures do not approve of your British Bill of Rights? Will you respect and recognise their democratic mandates, or employ Westminster sovereignty to ram the replacement through? As human rights are not a reserved matter, will you seek the legislative consent of Holyrood to repeal devolved aspects of the Human Rights Act, and if this is not forthcoming, how will you respond?

Thus far, the Tories have had bugger all to say about the detailed devolved implications of their abolition plan -- but they are politically explosive. Thus far, by focussing on the court politics of tactics and slogans, the media have singularly failed to take Conservative ministers to task on their woolly human rights thinking. Like Cameron's pledge to "renegotiate" the European Union treaties without any real or realisable demands, abolition of the Human Rights Act is a slogan -- not a worked out policy.


  1. What do you think the effect may be on the British Irish Agreement (Good Friday Agreement), an international treaty between the UK and Ireland?



  2. Surely the obvious solution for Gove, rather than repealing the act and creating conflict with the Irish government and the Scots devolution settlement, would be to amend it so that it no longer applies in England & Wales?

  3. Genuine question from a non lawyer legally challenged village idiot.

    Could the actions of ATOS, in same cases be close to or within the definition of Culpable Homicide. Or would I need to get someone from Boston Legal to take it pro bone?

  4. I know this is a very serious issue BUT lifes to short not to have a laugh
    see Yes Minister S2 Episode3 "The Death List"