Does Westminster need Holyrood's consent to repeal the Human Rights Act? This blog has been asking this important question since the general election. In June, Deputy Leader of the House of Commons, Therese Coffey, told Joanna Cherry that human rights are "a reserved for the UK Parliament and not a devolved matter," implying that consent for repeal was unnecessary. Later that month, justice minister Michael Gove reiterated this view, telling MPs that "in this United Kingdom Parliament, human rights are a reserved matter."
But there's a problem. If you rummage through the Scotland Act, you won't find human rights on the list of reserved matters. Indeed, Schedule 5 makes it crystal clear that human rights do fall within Holyrood's legislative competence. But what about the Human Rights Act itself? Schedule 4 of the Scotland Act protects the Human Rights Act from modification, amendment or repeal by Holyrood.
This leaves us in a funny situation. Human rights aren't reserved to Westminster, but only Westminster can amend or repeal the Human Rights Act. Here's where the Sewel convention comes in. This rule of constitutional morality says that if Westminster wants to legislate about devolved matters, or wish to expand or curtail the powers of the Scottish Parliament, they must seek the consent of MSPs before doing so. The UK parliament remains sovereign. The Lords and Commons could ram through any changes they like over the objections of MSPs. But the convention is -- they won't. The UK government is sufficiently committed to this convention to transpose a version of it into the Scotland Bill. It cannot lightly be dispensed with.
So how does Sewel apply to HRA repeal? Should it be treated as a devolved matter, requiring consent - or a reserved matter, requiring none? Yesterday brought some interesting but largely overlooked developments on this score. Michael Gove appeared before the House of Lords Constitutional Affairs Committee. Questioned about the UK government's repeal proposals, the former Lord President of the Court of Session - Lord Cullen - put the question to Gove directly:
Cullen: "Is it accepted that the repeal of the Human Rights Act and the creation of a Bill of Rights Act would give rise to the application of the Sewel convention?"
Reverse-ferreting from his earlier, much more bullish pronouncements in the Commons, Gove wibbled:
Gove: "I think: its an open question. And the reason why I hestitate to pronounce definitively is that we'd have to see what was in any given Bill in order to be absolutely certain as to whether or not a legislative consent motion might be required in any of the devolved legislatures."
Lord Cullen pressed on, as it became increasingly clear that Gove and his department still haven't fully contemplated the devolved implications of their repeal policy. In June, he thundered that "in this United Kingdom Parliament, human rights are a reserved matter." And in December? Wibble wibble.
Cullen: "Taking the matter at its most basic, legislation in regards to human rights is a matter which is not reserved, is that right?"
Gove: "It is neither reserved nor devolved."
Cullen: "So it is open to the Scottish Parliament to make its own provision for human rights, if it so chooses?"
Gove: "The -- My understanding of the constitutional legal position is that only the United Kingdom parliament can amend the Human Rights Act. But it is the case that the application of human rights, by definition, differs in Scotland, as distinct from the other parts of the United Kingdom, because Scottish courts will interpret those rights consistent with Scots law and Scots legal tradition."
Cullen: "What I'm driving at is, would the creation of a new Bill of Rights Act be something which would give rise to the Sewel convention, because it would enter an area where the Scottish Parliament itself could legislate?"
Gove: "Well, I don't believe that the Scottish Parliament -- I, you know, stand to be corrected -- I don't believe the Scottish Parliament can legislate to fundamentally alter the rights architecture which the Human Rights Act has put in place. I think that is a matter for the United Kingdom parliament, as I understand it."
Hardly the most trenchant or confident analysis, you might well think. Reading his answers in the light of my opening observations, you can see what Gove has done here. He's right to this extent: Holyrood can't amend the Human Rights Act because Schedule 4 of the Scotland Act prevents MSPs from doing so. But the Lord Chancellor has precisely no answer to the point put squarely to him by the Scottish judge: human rights are not a reserved matter. The idea of a matter being "neither reserved nor devolved" is a nonsense, a muddle, and a confusion.
Having airily dismissed the idea just months ago, Gove now concedes that legislative consent may be necessary, depending on the detail of his British Bill. The admission is significant enough on its own, but Gove's quibbling reticence on whether Holyrood will have to give the UK administration's Bill of Rights the nod is stonewalling, pure and simple. It is next to impossible to imagine any version of any British Bill of Rights which would not impact on Holyrood's legislative competence, and accordingly, engage Sewel.
But Gove is a politician. You find playing for time in the beginner's kit. And when you find yourself lost and confused in public about something so basic? It is all you can really do. But time is running out for the Lord Chancellor. Nicola Sturgeon has already said that "the SNP Government will invite the Scottish Parliament to refuse legislative consent to scrap" the Human Rights Act. The Sewel stramash isn't going away. In his recent Tim Yeo libel judgment, Mr Justice Warby memorably observed in that "when a fish wriggles on a hook, it goes deeper into the mouth and guarantees that the fish will not escape." Eventually, Mr Gove will have to make up his mind: bite or flight.