The Government’s Independent Review of the Human Rights Act Contents

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10The nations of the UK and the devolution statues

237.The role played by the ECHR in the devolution statutes has helped to embed respect for human rights in executive and administrative action in Scotland, Northern Ireland and Wales. Indeed, there has been an appetite for enhancing human rights protections in these three nations of the United Kingdom.

238.Any change to the HRA would impact on the people and governance of Wales, Scotland and Northern Ireland. The role of the HRA in the Northern Ireland peace process and the implications of reform for the Belfast/ Good Friday Agreement (the “1998 Agreement”) give rise to particular sensitivities.

Northern Ireland

239.In the 1998 Agreement between the UK and Ireland, the UK Government “undertook the complete incorporation into Northern Ireland law of the ECHR with direct access to the court and remedies for breach of the Convention, including the power for the courts to overrule Assembly legislation on the grounds of inconsistency”.190 The HRA currently fulfils this part of the Agreement in Northern Ireland.

240.The 1998 Agreement further envisaged the creation of a Bill of Rights for Northern Ireland to provide for rights supplementary to the Convention rights, “to reflect the particular circumstances of Northern Ireland”.191

241.It also requires certain safeguards to be in place to ensure that all sections of the community can participate in the operation of the Democratic Institutions in Northern Ireland, including:

…

• 5(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;
• 5(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;192

242.The Northern Ireland Act 1998 (NIA), which provides for the devolution arrangements in Northern Ireland, also makes direct reference to the ECHR, by limiting the powers of the Northern Ireland Assembly and Executive by reference to Convention rights. Section 6 of the NIA provides that an Act is outside the competence of the Assembly if it is incompatible with Convention rights. Section 24 provides that a Minister or department has no power to act, including making subordinate legislation, in a way that is incompatible with Convention rights.

243.Les Allamby told us the 1998 Agreement “has human rights at its heart”. He also told us that it was clear that the 1998 Agreement did not just commit to incorporating the Convention into domestic law, which was already happening at the time the Agreement was signed, but was about having access to meaningful remedies. However, he warned that:

“It feels like the Belfast/Good Friday agreement is being kicked about like a political football at the moment. On the particular evidence that I have seen and read, I think you interfere at your peril with the core human rights and equality provisions that are central to the Belfast/Good Friday agreement.”193

244.Policy Exchange’s Judicial Power Project argued in evidence to IHRAR that the claim that the 1998 Agreement required the retention of the HRA could be “dismissed swiftly” on the basis that there was no such requirement in the text, and that the requirement to incorporate the ECHR had been discharged by sections 6 and 24 of the NIA.194 This is at odds with the legal position, whereby in the absence of the HRA there would be no duty on public authorities to act compatibly with Convention rights, nor access to an effective remedy for breach of Convention rights, as required by Article 13. Furthermore, the limitations on the powers of the Assembly and the Executive imposed by the NIA only apply in relation to areas of devolved competence. It is also at odds with the evidence we received to our inquiry which noted the importance of the HRA in the context of what Mr Allamby referred to as “the rather febrile circumstances of Northern Ireland”. He suggested any dilution of the machinery of the HRA would be “counterintuitive to the clear aim of the Belfast/ Good Friday agreement”.195

245.The Bar of Northern Ireland agree that the HRA “has a distinctive constitutional function in Northern Ireland” as the mechanism that delivered on the human rights and equality guarantees contained in the 1998 Agreement via the effective delivery of ECHR rights in domestic law. Thus “any efforts to alter this under the terms of this Review risks unsettling a delicate balance”.196

246.The Bar of Northern Ireland also told IHRAR that the proposals under consideration by the Review could potentially lead to a divergence between domestic jurisprudence and that of the ECtHR which would “threaten the basis of the constitutional settlement here, insofar as the divergence could dilute the protections guaranteed by the Convention”.197

247.These concerns were shared by our witnesses. The Human Rights Centre at Queen’s University School of Law told us that the Review “presents significant risks to stability and peace in Northern Ireland”.198 And “the HRA has been, and should remain, absolutely integral to the sustainability of the Northern Ireland peace process”.199

248.We find the evidence of witnesses with direct experience and understanding of the particular circumstances of Northern Ireland persuasive. The commitment to the incorporation of the ECHR is a key feature of the Good Friday Agreement. Even the relatively technical changes under consideration could have unintended consequences. We are very concerned about the possible implications of upsetting the delicate framework that currently exists.

Scotland

249.As in Northern Ireland, the powers of the Scottish Parliament and the Executive are limited by the requirement to act compatibly with human rights obligations under the Scotland Act 1998 (“SA”). Under section 29, legislation that is incompatible with Convention rights, defined by reference to the HRA, is outside the competence of the Scottish Parliament. Section 57 provides that Scottish Ministers have no power to act incompatibly with Convention rights. The Scottish Law Society have noted that consequently, questions about the compatibility of legislation passed by the Scottish Parliament with Convention rights are usually dealt with under the SA rather than the HRA.200

250.Judith Robertson, Chair of the Scottish Human Rights Commission, told us that, as a result of the embedding of the HRA within the SA “Convention rights have become a very strong part of the fabric of Scotland’s laws or judicial analysis and, crucially, the legislative competence of the Scottish Parliament”. The result, she said, had been the development of a rights-based culture in Scotland. She suggested that the HRA is entwined with the SA and the whole establishment of devolution, and that weakening or changing the framework may have complex implications that are not yet fully understood.201

251.The Scottish Government describe the position as a “sophisticated constitutional framework … comprised of two constitutional statutes—the Scotland Act and the HRA”.202 They argue that it is essential for the Review to recognise that the HRA applies in Scotland and the devolved nations as “an integral part of a larger and more complex legal and constitutional framework”.203

252.The Faculty of Advocates also noted the risk of unintended consequences in any piecemeal reform of the HRA, which was designed to work as a whole, “not just in the application of the HRA, but also in other legislation that refers to Convention rights (i.e. the legislation creating the devolved administrations in Scotland and Wales)”.204

253.It has also been argued that amending the HRA would require the consent of the Scottish Parliament.205 Section 28 of the SA states that “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”. This is the statutory expression of what is known as the Sewel Convention. Although in Miller 1206 the Supreme Court found that the convention was not legally enforceable despite its statutory entrenchment they emphasised that the convention has an important role in facilitating harmonious relationship between the UK Parliament and the devolved legislatures.

254.There is no clear consensus as to the extent to which human rights are a devolved matter. The SA specifically prohibits the Scottish Parliament from amending the HRA. However, whilst the conduct of international relations is reserved, “observing and implementing … obligations under the Human Rights Convention” is specifically excluded from this.207 Thus it is argued that responsibility for the observation and implementation of human rights is at least to some extent devolved to the Scottish Parliament.208

Wales

255.The Government of Wales Act 2006 incorporates Convention rights in a similar way to the SA and NIA. Section 81 provides that Welsh Ministers cannot make subordinate legislation or act in way which is incompatible with Convention rights. Section 108A (2) (e) provides that a provision of an Act of the Senedd is not law if it is not compatible with Convention rights.

256.As in Scotland and Northern Ireland, these provisions provide a strong incentive for the Welsh Government and the Senedd to act in accordance with Convention rights. The Public Service Ombudsman in Wales is able to consider complaints about public bodies on the basis that they have failed to adequately consider the HRA, and if this amounts to maladministration. In the case of an adverse finding, the Ombudsman can ask the public authority to reconsider its decision and make recommendations as to action to be taken to put things right.

Conclusions

257.The incorporation of the HRA into the devolution settlements and the limits it places on the power of ministers and institutions have made human rights compliance central to policy making in the nations of the UK. This appears to have fostered a positive attitude towards human rights.

258.It is essential that proposals to amend the HRA take account of its unique role in the constitutional arrangements of the devolved nations and the implications for the future of the union. The Government should not pursue reform of the HRA without the consent of the Scottish Parliament, the Welsh Senedd and the Northern Ireland Assembly.