JUSTICE, the lawyers’ law reform and human rights group, has published a paper on Devolution and Human Rights, coming out of their work more generally on human rights, and particularly the idea – embraced by both the Conservative party and the Labour UK Government – of replacing or augmenting the Human Rights Act 1998 with a ‘British bill of rights’ (or ‘bill of British rights’, or similar formulation). JUSTICE has long, and rightly, been concerned about the implications of this, as it would either mean the UK withdrawing from the European Convention on Human Rights (and the Council of Europe), or undertaking a long and complicated exercise to formulate a set of specifically UK-rights to augment those set out in the European Convention. The paper is available here; JUSTICE’s press release is here, and a Guardian news story about it is here.
This latest paper draws attention to yet further problems with the ‘bill of British rights’ proposal. One is the situation in Northern Ireland. There are still-unimplemented commitments in the Good Friday Agreement to establish a specific human rights regime for Northern Ireland, recognising its distinctiveness – and presently the subject of a consultation by the Northern Ireland Office. In any case, the idea of human rights being ‘British’ is deeply divisive there – especially given the success with which rights, and the rule of law, have been increasingly established as a norm of public life independent of sectarian association since 1998.
In Scotland, the problems are different. Even though the Convention rights set out in the Human Rights Act 1998 are a reserved matter, other aspects of human rights are not – and the Convention itself is part of the Scotland Act 1998, and one which the present Scottish Government has no desire to change (see Kenny MacAskill’s comments to Westminster’s Joint Committee on Human Rights here). Meanwhile, Wales has simply been left out of the debate (and the JUSTICE paper) – an error that appears to derive from Wales’s inclusion in the single legal jurisdiction of England and Wales, which disregards the constitutional prerogatives of the National Assembly.
The UK Government’s usual position is that the UK’s human rights regime is a reserved/ excepted/non-devolved matter, which is wholly subject to Westminster’s control. It justifies this on grounds of the explicit protections for the Human Rights Act 1998 in the devolution statutes, or because of the reservation/exception for ‘the Constitution’ or for foreign affairs (as the ECHR is one of the UK’s international obligations). That won’t wash. Matters which touch on the powers and structures of the devolved legislatures clearly fall within the Sewel convention, as well as being entangled in the constitutional framework of devolution. The belief that they can unilaterally be changed by the UK Parliament is a mistake, and no longer sustainable for a devolved UK.
The JUSTICE paper isn’t perfect, and there are a number of procedural infelicities in it. But it’s absolutely right about the complexity of the constitutional implications of the UK’s implementation of the ECHR in domestic law, thanks to devolution. And it follows that – if a UK Government were to seek to implement a new, home-grown bill of rights – it would need to secure the assent of each devolved legislature, in accordance with the Sewel convention. That includes the National Assembly for Wales as well as the Scottish Parliament and Northern Ireland Assembly. Moreover, given the status of the Northern Ireland Act 1998 and its complex relationship with the Belfast Agreement, it implies the assent of the Republic of Ireland (if it can be done at all; one curiosity of the Belfast Agreement is that it is a ‘multi party agreement’ which does not identify all the parties to it). Changing the UK’s human rights regime is a highly complicated undertaking, and politicians who imply that it can easily be done are heading for public embarrassment.
UPDATE: Austen Morgan, in the Guardian‘s ‘Comment is Free’ blog, believes that the JUSTICE position is wrong. Well, comment there is free. Morgan evidently hasn’t even considered the rather subtle arguments about the interaction of devolution and human rights (on which my Edinburgh colleague Chris Himsworth is particularly interesting). He also doesn’t understand how the Sewel convention works or what it means, and hasn’t even noticed that the devolution legislation for Wales is now the 2006 Act, not the 1998 one. And to refer to the devolved legislatures as ‘regional adminstrations’ is not just wrong, but frankly insulting.