3 December 2015

Gove: human rights "neither reserved nor devolved"

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. 


  1. Interesting, we must do all we can to retain the Human Rights Act. A BBR will not be adequate to ensure protection of our citizens, just as the equality act watered down the rights of the disabled in scrapping the DIsability Discrimination Act, which was much more specific to those vulnerable people. The HRA also protects asylum seekers, this so called 'British B.R's' will not. It will reduce all of our human rights, which at this crucial time is just unthinkable.

  2. The Northern Ireland Assembly cannot pass any law which contravenes the ECHR.

    Section 6 of the Northern Ireland Act 1998:

    '6 Legislative competence.

    (1)A provision of an Act is not law if it is outside the legislative competence of the Assembly.

    (2)A provision is outside that competence if any of the following paragraphs apply—

    (a)it would form part of the law of a country or territory other than Northern Ireland, or confer or remove functions exercisable otherwise than in or as regards Northern Ireland;

    (b)it deals with an excepted matter and is not ancillary to other provisions (whether in the Act or previously enacted) dealing with reserved or transferred matters;

    (c)it is incompatible with any of the Convention rights;

    (d)it is incompatible with Community law;

    (e)it discriminates against any person or class of person on the ground of religious belief or political opinion;

    (f)it modifies an enactment in breach of section 7.'

    Effectively it means that matters devolved to Northern Ireland remain under the ultimate jurisdiction of the ECtHR. The Northern Ireland Act 1998 created a Northern Ireland Human Rights Commission (the body which took the High Court case that led to the decision that aspects of NI's abortion law are incompatible with the Convention), tasked with, among other things, ensuring that Northern Ireland law and practice are compatible with human rights, with section 69 (11) of that Act stating:

    '(11)In this section—
    (a)a reference to the Assembly includes a reference to a committee of the Assembly;
    (b)“human rights” includes the Convention rights.'

    Apart from this, Strand 1 of the Good Friday Agreement (the Agreement reached in the Multi-Party Negotiations) provides safeguards about the operation of the Northern Ireland Assembly, including:

    '(b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission;

    (c) arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland;'

    Given these provisions, whether in law or by agreement, it seems that the UK government would have great difficulty passing an act that removes Convention protections governing matters devolved to the Northern Ireland Assembly.

    Combined with the difficulties posed for repeal of the Human Rights Act by Scottish devolution, could the UK end up with a Human Rights Act in force in Scotland and Northern Ireland, and a (less than fully) British Bill of Rights for England and Wales?

    Then there's EU law, which contains the EU's Charter of Fundamental Rights applicable to all EU law and national laws implementing EU law. Notwithstanding the UK/Poland protocol to the EU treaties in connection with the Charter, the ECJ has ruled that the Charter does apply to all EU law and national laws implementing EU law in the UK. This will not change unless the UK withdraws from the EU, which will bring a whole set of other problems relating to Scotland and Northern Ireland for the UK.

  3. Interesting exchange between Gove and Lord Cullen. I think that Gove is actually playing a very canny game here. He says that we must wait to see the Bill before pronouncing on whether the Sewel Convention would be engaged. This is revealing. As you know, Schedule 4 of the Scotland Act 1998 provides that the Scottish Parliament cannot modify, amend or repeal the Human Rights Act 1998. However, what would happen if the British Bill of Rights were not a new standalone Bill, but instead an amending Bill? Instead of repealing the Human Rights Act, I think that Gove is planning on hollowing out the provisions of the Act and inserting the new provisions of the British Bill of Rights. It would even be possible for Gove to change the name of the Human Right Act to the "British Bill of Rights Act". A previous example of such a name change would be when the "Supreme Court Act" became the "Senior Courts Act". As an analogy, it would be like taking the frame of an old car and then inserting a new engine, new fittings, and also giving the car a new name. If Gove were to pursue this legislative policy it would mean that the Sewel Convention would not be engaged. This is because the UK Parliament would be exercising its exclusive prerogative to modify and amend the Human Rights Act. As this would be in line with Schedule 4 of the Scotland Act and also the Wales Act and the Northern Ireland Act, there would be no need for Gove to seek the consent of any of the devolved legislatures (although I suspect that Northern Ireland might be excluded due to the terms of the Good Friday Agreement). In these circumstances, the only option left open to the Scottish Government would be to try to top up the British Bill of Rights with a new human rights architecture applying solely to Scotland.

    1. I don't think there's any real chance of the Human Rights Act being scrapped for Northern Ireland or Scotland. IF the UK government insists on proceeding, the most likely outcome is a continuation of the Human Rights Act in Northern Ireland and Scotland (creating a bizarre situation where UK law, not just devolved law, could be challenged under human rights legislation in those jurisdictions but not in England and Wales), and a British Bill of Rights for England and Wales. And this from Gove, a Scottish unionist! EU law complicates matters even further since EU law and UK law implementing EU law (e.g. UK Acts implementing EU Directives) are both subject to the EU's Charter of Fundamental Rights which, in many respects, mimics the ECHR although obviously a completely separate text and supervised only by the EU courts.