Opposition from Scotland, Northern Ireland and Wales could pose a serious challenge to Conservative plans to scrap the Human Rights Act. Robert Hazell and Bob Morris write that if the new government tries to push ahead regardless, it may only be able to create an English bill of rights, with potentially negative consequences for the UK as a whole.
The Conservative manifesto, building on pledges in previous manifestos, contained these statements about replacing the Human Rights Act with a British bill of rights:
- We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK. The Bill will remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights (p.73)
- The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK (p.60).
We have not yet seen the detail, and the draft bill which the Conservatives promised to publish before the election never materialised. The plans are likely to raise a whole series of difficulties, with the judiciary, with the House of Lords (where the bill will have a very difficult passage – see here and here), and with the Council of Europe, if the UK tries to remain in the ECHR but somehow leave the jurisdiction of the European Court of Human Rights. But this blog concentrates on a further difficulty closer to home, which is opposition from the devolved governments and assemblies.
Under the Scotland Act, Northern Ireland Act and Government of Wales Act, the devolved governments and their legislatures are bound to comply with the ECHR, which in effect provides the bill of rights in their devolved constitutions. Although this has caused some teething difficulties, particularly for the criminal justice system in Scotland, the devolved governments have not felt anything like the same degree of discomfort as the UK government. In part this reflects their different functions: they do not face the same pressure of terrorism and asylum and deportation cases, with accompanying tabloid headlines, which has led Home Secretaries like Theresa May (or David Blunkett), or Prime Ministers like Cameron and Blair to express their frustration with the Human Rights Act and incursions from the Strasbourg court.
The devolved governments want to maintain adherence to the ECHR, which is written in to the devolution settlements. If the UK were to alter our adherence to the ECHR, the devolution Acts would have to be amended. But here lies the difficulty. Under the Sewel convention, formally expressed in the Memorandum of Understanding between the UK government and the devolved governments, Westminster will not legislate on devolved matters without the consent of the devolved legislature. The Smith Commission proposed to put this convention on a statutory footing. But even now, the devolved legislatures have an effective veto over any change to the devolution settlements in their own countries. If they want to remain bound to the ECHR, and not be part of any British bill of rights, they have the right to do so. They would simply not agree to pass legislative consent motions to the British bill of rights extending to any devolved functions. If that happens, the British bill of rights would then become an English bill of rights.
So if the UK government wished nonetheless to go ahead, it might be able to do so in respect of England only. This would have two potentially negative consequences: for the future of the Union, and for human rights protection in the UK. Nicola Sturgeon has signalled her strong opposition to a British bill of rights. She has previously suggested that if the UK votes to leave the EU, and Scotland votes to remain, that could lead to a second independence referendum. The Scottish government might start to echo that statement in relation to the UK loosening its ties to the ECHR and the Council of Europe. Northern Ireland raises greater concerns. The whole human rights regime there, including the Northern Ireland Human Rights Commission, originated in the 1998 Belfast Agreement, which is not just an inter party agreement, but an international treaty between the UK and Irish governments. There would be strong opposition to any attempt to water down the Agreement’s guarantees, which could have repercussions for the stability of the 1998 peace settlement, as well as implications for the UK’s relations with the Republic of Ireland.
The second consequence would be to fragment human rights protection in the different parts of the UK. There are already different human rights and equalities regimes across the UK, but so far the differences are relatively minor, as they are mainly around machinery rather than substance. These are set out in Table 1 below. Further changes could be on their way: for example, under the Wales Act 2014, Wales could pass legislation on the lines of the Scottish Commission for Human Rights Act 2006. But that could be as nothing compared with the UK government introducing a Bill of Rights for England which was ECHR minus, while the rest of the UK adhered to the ECHR and the jurisdiction of the Strasbourg court. There would be one set of rights for the English, and another for the Scots, the Welsh and the Northern Irish: not a recipe for a United Kingdom.
Table 1 Varying human rights regimes in different parts of the UK[Note: By virtue of the relevant provisions in the devolution acts, the devolved legislatures are prohibited from legislating to alter the Human Rights Act 1998 but not from supplementing the arrangements locally.]
About the Authors
Robert Hazell is Professor of Government and the Constitution & Director of the Constitution Unit.
Dr Bob Morris is a former Home Office career civil servant. At the Unit, Bob has been involved with a variety of interests, particularly FOI. Latterly he has tended to lead on ecclesiastical and royal issues, for example on the Succession to the Crown Act 2013, at the same time contributing to the recent study on Commons Public Bill Committees led by Meg Russell.