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.