2 February 2016

Schrödinger's womb

I've been traipsing after Michael Gove in his various - sometimes curious - parliamentary appearances on the proposed abolition of the Human Rights Act. The Tories are in a bit of bother. Mopping up after the majestically incompetent predecessor Chris Grayling, the new Lord Chancellor has the thankless task of marshalling the Conservatives' jury-rigged proposals to abolish the HRA - and to replace it with a British Bill of Rights - into some kind of defensible public shape. 

This morning, he was explaining himself to Helena Kennedy's EU Justice subcommittee in Westminster. And what remains clear after today's session is: devolution remains a big problem for the UK government's HRA repeal policy -- amongst many others

In June last year, Gove told MPs that "in this United Kingdom Parliament, human rights are a reserved matter." He has been rowing back on that decisive statement ever since. In December, he told the Lords Constitution Committee that human rights was "neither reserved nor devolved".

As Helena Kennedy recognised from the chair this morning, "one of the really tricky issues around all these discussions is connected to devolution." Is Holyrood's consent - and the consent of the Cardiff and Belfast - required either to abolish the Human Rights Act, and to introduce any British Bill of Rights? Former Met commissioner, Ian Blair, took up this line with Gove this morning.

Blair: "Some of the evidence we have received from some of the members of the devolved institutions has been really rather surprising. Quite striking. One that I will particularly quote from is from the member of the Scottish parliament, Mr Biagi, who made it absolutely clear to the committee that in his opinion - and in the opinion of his party - human rights legislation is not a reserved power. And as far as I can see, it is either a reserved power, or it is a devolved power. 
But that is not the position I think you took in front of the Constitutional Affairs Committee in December. And it is not the position that those bringing forward and through the House of the Scotland Bill took. 
But none of us - I think - can understand how it can be neither reserved nor devolved - which makes you feel a little bit pregnant. I mean, it is just not possible. It is either reserved or devolved. So -- my question to you is: do you agree that the consent of the devolved parliaments would be required for an application of -- for the introduction of -- a British Bill of Rights to devolved regions?" 

So what did the Lord Chancellor reckon? Gove doubled down on his strange formulation from the Constitution Committee last December.

Gove: "It is neither reserved nor devolved. But it is the case that any reform or change to the Human Rights Act is a matter for the Westminster parliament. The application of human rights is a matter for Scots courts and indeed, for the Scottish executive -- Scottish government. Within that, so -- um, um,-- it might be -- if you could imagine the state of permant pregnancy, then that's what we have. As for consent, we will consult on what we think is the best way of involving all the constituent parts of the United Kingdom in understanding the case for rights reform. But I wouldn't want to prejudge at this stage exactly how we might  do so."

So. Um. There we have it. "Permanent pregnancy." According to the Lord Chancellor, human rights are the Schrödinger's womb of British politics. If you are prepared to read between the lines of what Gove is trying to say --  you can detect a pretty hazy rendering of the argument I put here. Ish. Just about. If you squint, and peer through the bottom of the milk bottle. Gove's performance today underscores the point. In contrast with the Scottish government's straightfoward legal view - the Sewel convention is engaged by repealing and replacing the Act - the UK government remains in an awful guddle. And if this morning's Lords drubbing is anything to go by, it'll take all of his cunning to free the Lord Chancellor from devolution trap his government has unthinkingly blundered into.  

Pressed on whether or not the outcome of this process might not be an English, rather than a British Bill of Rights, Gove continued:

"I would hope that there would be a British Bill of Rights. But the one thing I will concede is that while I have many friends -- and there are many people who I admire in the Scottish National Party -- it is nevertheless the leadership of the Scottish National Party might want -- if you can imagine such a thing -- to view this exercise through a party political lens. Certainly, in the run up to the Scottish parliamentary elections. I hope we can encourage them to resist that temptation."

Temptation indeed. Heaven forfend.


  1. I believe that a desperate desire for a child can bring on a phantom pregnancy. Thus a desperate desire for a Bill of Rights appears to be having the same effect on the Tory Government, making them pregnant but not pregnant.

  2. The Tories, of course, are not doing this through a party political lens at all. Oh no.

  3. Hi Andrew

    Thank you for your post.

    I agree with you that Michael Gove is wrong in his assertion that the subject matter of “human rights” is “neither reserved nor devolved”.

    It is clear that “human rights” are devolved.

    This means that the Scottish Parliament could today pass legislation which introduces new human rights over and above those set out in the Human Rights Act 1998 (e.g. social, economic and cultural rights such as those set out in the Constitution of South Africa).

    However, it is also clear that the Human Rights Act 1998 is an enactment which is protected from “modification” by the Scottish Parliament (see Schedule 4 of the Scotland Act 1998). As you will know, the use of the word “modify” here means that the Scottish Parliament cannot amend or repeal the Human Rights Act 1998. Instead, only the UK Parliament can take this action.

    None of this is controversial.

    The area where I disagree with you entirely is on the application of the Sewel Convention to the enactments protected from modification set out in Schedule 4 of the Scotland Act 1998.

    Your argument (which is also the argument of the SNP) is that because the subject matter of “human rights” is devolved, the Sewel Convention requires that the UK Parliament must obtain the prior legislative consent of the Scottish Parliament before amending or repealing the Human Rights Act 1998.

    However, this argument ignores the fact that by virtue of Schedule 4 the Scottish Parliament does not have any legislative competence to amend or repeal the Human Rights Act 1998.

    The main purpose of the Sewel Convention is to protect the Scottish Parliament by ensuring that the UK Parliament does not legislate on matters for which the Scottish Parliament has legislative competence. This constitutional convention was developed because it would undermine the entire concept of devolution if the UK Parliament were to legislate regularly on devolved matters without the consent of the Scottish Parliament.

    In this case, we are dealing with a situation where the UK Parliament would be passing legislation to amend / repeal an existing Act of Parliament over which the Scottish Parliament has no legislative competence. As the Scottish Parliament has no legislative competence in respect of the Human Rights Act 1998, the Sewel Convention would not be engaged in the event that the UK Parliament takes the step of amending / repealing the legislation.

    Assuming this interpretation of the law is correct, we are then left with the issue of whether it would be possible to actually implement a new British Bill of Rights in Scotland.

    If the UK Parliament were to repeal the Human Rights Act 1998, it is clear that it could not then subsequently introduce a new British Bill of Rights Act without first obtaining the prior legislative consent of the Scottish Parliament. This is in line with position that the subject matter of “human rights” is devolved. The only aspect of “human rights” that is “reserved” is the Human Rights Act 1998 itself. If the Human Rights Act 1998 were to be repealed, the Sewel Convention would be engaged by any new UK legislation which purported to create, amend or abolish human rights in Scotland.

    Despite this, there is still a clear way for Michael Gove to achieve his legislative aim of introducing a UK-wide British Bill of Rights without triggering the Sewel Convention. The way to do this is by retaining the Human Rights Act 1998 on the statute book.

  4. Instead of repealing the Human Rights Act 1998 in its entirety, Michael Gove could repeal most of the provisions and replace them with the new provisions of his desired British Bill of Rights. This would mean that the UK Parliament would essentially gut the Human Rights Act 1998 of virtually all its content, leave the outer shell of the legislation intact and then insert the new provisions of the British Bill of Rights inside the remaining husk of the legislation. It would even be possible to amend the name of the Human Rights Act 1998 by changing it to the “British Bill of Rights Act 2016”. A precedent for a similar name change would be when the name of the Supreme Court Act 1981 was changed to the Senior Courts Act 1981.

    In summary, if Michael Gove were to pursue this legislative strategy, he would merely be “amending” the Human Rights Act 1998. As noted above, as the UK Parliament is the only body which has the legislative competence to amend the Human Rights Act 1998, the Sewel Convention would not be engaged and the UK Parliament would be able to implement the British Bill of Rights on a UK-wide basis without seeking the prior legislative consent of the Scottish Parliament.

    Andrew, I note that you have long said that it is next to impossible to imagine any version of any British Bill of Rights which would not engage the Sewel Convention. I would be interested to hear your views on the legislative proposal mentioned above.

    Kind regards


  5. These are good questions. And as you imply, a great deal of this is arguable, negotiated and politically fought over. If you look at the transcript of evidence from Marco Biagi linked to above -- he underscores this outlook too. You can have a scrap about law. Constitutional conventions hazily expressed even more so. In terms of your first Schedule 4 point -- I can see the argument here. We find it expressed by folk like Professor Elliot from Cambridge, for example, who maintains that repeal doesn't engage Sewel, but accepts that replacing it with a British Bill of Rights would. Where, I think, this argument faces difficulties is in the second aspect of Sewel which is now widely recognised. It covers not only legislating with respect to reserved matters, but also Westminster legislation which would extend or curb Holyrood or the Scottish Government's legislative and executive competences. Iain Robertson's fine-grained argument here is technical -- but I think persuasive. I know it has convinced folk who shared your view previously, such as Professor Aileen McHarg of Strathclyde. In terms of the canny workaround - empty the HRA and even re-name it, but keep its holding spot in the Scotland Act, no bother -- my concern would be how far that kind of creative compliance could go. It really invites reflection on what the Sewel convention is actually for -- something our jury-rigged constitution has been notoriously disenclined to engage in...

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