2 July 2015

Alistair Carmichael: The Man Who Saved the HRA?

Alistair Carmichael is clearly a lazy thinker. The former Secretary of State for Scotland secured a debate on the Human Rights Act in Westminster Hall this Tuesday. During his remarks, the former solicitor held forth at length on the devolution implications of repeal - and got his law almost entirely wrong: muddle, guddle and confusion. 

He told MPs that the Human Rights Act is "hardwired into the devolution settlements in Scotland, Wales and Northern Ireland." It isn't. He claimed that "their Acts must be compatible with" the Human Rights Act. They don't.  He concluded "it has already been established that if this is to change, at least for the Scottish Parliament a legislative consent motion would be required in accordance with the Sewel convention." He clearly wasn't listening, when this claim was directly contradicted by government ministers Michael Gove and Therese Coffey

Happily, SNP's Joanna Cherry was rather more on the ball, echoing the analysis this blog has been pushing for some time. The Edinburgh South West MP set out the terrain of potential conflict in clear, sharp detail in her speech:

"The SNP has been deeply concerned by recent statements from Ministers that suggest that they believe that the UK Government could repeal the Human Rights Act without reference to the Scottish Parliament. They argue that the Sewel convention would not be engaged because human rights are a reserved matter. That is wrong and legally illiterate. Human rights are not a reserved matter and are not listed as such in schedule 5 to the Scotland Act 1998. Schedule 4 to the Scotland Act protects the Human Rights Act against modification by the Scottish Parliament, but human rights per se are not a reserved matter. It was part of Donald Dewar’s scheme that all matters would be devolved unless they were specifically reserved. Human rights are not specifically reserved. 
Moreover, human rights are written into the Scotland Act. The European convention on human rights is entrenched in the Act through section 29(2)(d), which provides that an Act of the Scottish Parliament that is incompatible with the ECHR is actually outwith the legislative competence of the Scottish Parliament. Section 57(2) states: 
“A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with” 
the ECHR. It is therefore incorrect to say that human rights are a reserved matter. They are devolved and I urge the Minister to think carefully about the statements made by his colleagues to the effect that the Sewel convention would not be engaged.

The Prime Minister has repeatedly spoken of a “respect” agenda, and I stand here as one of 56 SNP Members elected at the general election. I urge the Government to consider their respect agenda, to return to the Scotland Act 1998 and to get their lawyers to look at it carefully. They will find that human rights are not a reserved matter and are devolved, and that the Human Rights Act should not be repealed or otherwise interfered with by the British Parliament without first seeking the consent of the Scottish Parliament. 
I want to make it clear, however, that the SNP would seek to prevent the repeal of the Human Rights Act for the whole United Kingdom. It is a fundamental issue and we want the Human Rights Act to remain on the statute book for the entire UK because, as the right hon. and learned Member for Beaconsfield said, it has brought huge benefit in terms of the accessibility of rights for people in this country."

The minister in the debate, Dominic Raab, failed to respond to any of these points. Carmichael's legal blundering isn't just innocent confusion over a technical topic -- even if we might expect better from a University of Aberdeen LLB. His fudging and his mudging can only help to disorientate opponents of Tory repeal plans, strengthening the UK government's hand, and diverting our attention away from viable stratagems of resistance. I'm sure it isn't deliberate mischief. It's just the usual incompetence and sloth. But if Carmichael is serious about defending the Act from the Tory axe, he's going to have to buck up his ideas -  or take his bungling elsewhere. 


  1. He's probably distracted by the impending court case.

  2. Do I have your argument right, Andrew, that the ECHR (not the HRA) is hard wired into the Scotland Act so far as legislative compatibility is concerned but compliance by Scottish public authorities (SPAs) rests on the HRA? Thus, repeal of the HRA would "liberate" SPAs but not the Scottish Parliament as regards its legislation, right?

    If that's right, then Carmichael was mostly right in a politician-y sort of way (equating ECHR with HRA) even if he wasn't being strictly legally complete or accurate. I have no brief for AC or the LDs but the worst he's guilty of (judging from your precis - I haven't read the full thing) is a politician's speech to parliament rather than a counsel's speech to a court (as Joanna Cherry's speech more resembled). Indeed, perhaps AC was being quite shrewd in that the ECHR has come to have rather negative connotations in land reform circles which the HRA perhaps doesn't suffer from.

    If the Westminster parliament repealed the HRA quoad Scotland in defiance of a "Sewell refusal" (is that really likely in political terms?), what would be to stop the SP immediately re-enacting it as HR isn't a reserved matter?

  3. Holyrood clearly could immediately reenact the HRA so as to apply to local authorities and devolved public authorities. But it is much less clear whether it could make human rights justiciable in the Scottish courts as against reserved public authorities (immigration authorities, for instance). So, to preserve the full protection of the HRA in Scotland, arguing that a Holyrood consent is required for repeal is a much safer strategy.

    1. Ah, hadn't thought of that. The argument is that a Scottish HRA could not trump reserved legislation so as to water down what would otherwise be its full rigour, right?

    2. A very nascent notion I have been tinkering with. Even if Holyrood could not subject reserved public authorities to full-on vires control as against a Scottish Bill of Rights -- what about some kind of declaration of incompatibility process?

  4. Ah, the Human Rights Act, what a marvellous piece of legislation which I'm glad that the SNP are going to preserve! With this, they'll safeguard many of the recent landmarks in human rights such as ABSOs, trying to shut down freedom of the press via a medieval charter, mobs shutting down theatre performances at the Edinburgh Fringe, attacks on habeas corpus and double jeopardly, people being LITERALLY jailed for singing songs [!], the ludicrous trials which have come about due to the absence of any statute of limitations, oh, and most empoweringly of all, the "named person" scheme!

    I hear that the SNP are going to do all they can to safeguard the human rights act, just after they've brought in a new bill to help you ease the passing of your elderly relatives through assisted-suicide via drone strike.