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. 


  1. Brilliant. Please Scottish government minister, be reading this.

    We must not let them take away our human rights and replace then with the Gove, Duncan Smith version for royals and establishment figures only.

    1. Feel free to pester them, tris! I know I have been.

      Most of them have Twitter handles these days...

    2. I'm on it!

  2. Walk on coals? I'd have him use his penis as a poker*.

    *Note to younger readers; a poker was a long thin metal rod, used to break up a coal** fire, much in the way as Ian Davidson was going to bayonet the SNP wounded.

    **Coal, a black mineral composed of fossilized old forests, once used extensively in Scotland as a fuel, pre-Margaret Thatcher***

    ***Margaret Thatcher: Evil personified. Hated coal**...

  3. My apologies if I am being too simplistic but, after the Tories introduce the repeal of the HRA and before enactment, is there a case that an individual could bring to the ECHR against the government for denying them their human rights?

    1. I am afraid not. You will still be able to take your case to Strasbourg -- unless, that is, the Tories decide to denounce the Convention as a whole. The ECHR has no requirement that your Convention rights should be enforced by a Human Rights Act. More on that here.

  4. Thank you for replying. It was something that I had been pondering on and off since the Tories first mentioned the HRA repeal.

    I did think that that would be the case as it hadn't been mentioned. It would have been too 'easy'. Not that I think taking a case to Strasbourg is an easy option.

    1. Think of it more positively: there are a number of actual, more substantive alternative avenues for resistance and challenge here. :)