Chapter 8: The impact of repealing the Human Rights Act in the devolved nations
146.It was clear from our first evidence sessions that the impact of a British Bill of Rights on the entrenchment of the European Communities Act and HRA in the constitutions of the devolved nations would be a central part of our inquiry. We therefore sought evidence on how a British Bill of Rights might be perceived by the devolved nations.
The Scottish Government’s perspective
Human rights within the devolution settlement
147.We asked Mr Biagi to what extent the protection of human rights in Scotland under the ECHR and the EU Charter differed from that in England and Wales. The greatest difference, he said, was in the constraints on the Scottish Parliament and on the Scottish Government: “we have a very hard barrier against taking any action or passing legislation that is in violation either of convention rights or of EU law.”171 If the Scottish Parliament passed primary or subordinate legislation, or the Scottish Government undertook an administrative action, which was found to violate ECHR or EU law, it could be struck down by courts. The specific term was that it is “not law”.172 Mr Biagi described Scotland’s constitutional settlement through the Scotland Act 1998 as “analogous to the constitutions that bind most of the States in Europe, as opposed to the sovereign-parliament approach that is taken in Westminster.”173
The strengths of ECHR compared to the EU Charter
148.Asked about the strengths of the human rights protections provided by the ECHR, compared to the EU Charter, in Scotland, Mr Biagi said: “we see them both as valuable … we would not want to lose any of the efficacy of either system here, especially with the powers for remedy that there are under the Charter. But as I said, and I re-emphasise this, anything the Scottish Government or Scottish Parliament do has to be in compliance with both.”174
Would legislative consent be required?
149.Asked whether the Scottish Parliament would need to pass a legislative consent motion in respect of any Bill to repeal the HRA, Mr Biagi replied that, in his view, it would.175 The guidance176 on the Sewel Convention177 made clear that any UK legislation on a devolved area would require the consent of the Scottish Parliament—indeed, this has now been given statutory underpinning by section 2 of the Scotland Act 2016, entitled ‘The Sewel convention’, which provides that “the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”. Importantly, the guidance also made clear that any alteration of the legislative competence of the Scottish Parliament would also require consent. Both aspects of the Sewel convention would be invoked were a Bill to repeal the HRA to be introduced.178
150.The Law Society of Scotland agreed that repeal and replacement of the HRA would, in terms of the guidance,179 require the amendment of provisions of the Scotland Act which affect the competences of the Scottish Parliament and Government.180 However, it also noted that section 2 of the Scotland Act 2016 (at that time clause 2 of the Scotland Bill, which was then before Parliament) only applied the convention to the UK Parliament legislating in devolved matters; it did not apply the second part of the convention, which related to legislation altering the competence of the Scottish Parliament and Government. As a consequence, “if the Sewel convention is being interpreted on the narrow basis set out currently in Clause 2 then such legislation [repeal and replacement of the HRA] would not fall under the Sewel convention as provided for in the Scotland Bill”.181
151.Mr Biagi recognised that whether human rights were a reserved or devolved matter in Scotland was “a point of some debate between the Scottish Government and the UK Government”. But the Scottish Government was “very clear that Schedule 5 to the Scotland Act, which sets out what reserved issues are, does not mention human rights, it does not reserve human rights, and the principle of the Scotland Act is that if it is not mentioned there, it is devolved.”182 The fact that Schedule 4 of the Scotland Act lists the HRA as UK legislation the Scottish Parliament cannot amend183 did not, he believed, reserve human rights: “We therefore have the power to legislate for human rights in Scotland as long as we do not alter that bedrock of the Human Rights Act 1998. We have exercised this power in the past”.184 The Law Society of Scotland agreed that human rights were not a reserved matter, and that the Scottish Parliament had legislated in the area of human rights.185
Would legislative consent be given?
152.Mr Biagi said that there was controversy in the Scottish Parliament about the UK Government’s plans to repeal the HRA. When the HRA was debated in the Scottish Parliament in 2014 “it was backed by 100 votes to 10 … There was an overwhelming view in the Scottish Parliament that these proposals, which we are still to see the detail of, do not represent the views of the Scottish legislature.”186
153.If the UK Government sought to repeal the HRA in Scotland:
“The Scottish Parliament would be invited by the Scottish Government to refuse legislative consent. Based on the vote that we had last year, I think that would be passed, and given that the main opposition party supports the Scottish Government in this interpretation, it is likely that any Scottish Parliament after next May’s election would do the same.”187
154.If the UK Government decided to legislate without the consent of the Scottish Parliament, it would be “a very substantial step”,188 which would lead the UK into “uncharted constitutional territories”, and “generally speaking, uncharted constitutional territories are something that you should think a lot about before you enter.”189
The Welsh Government’s perspective
155.We received written evidence from the Welsh Government on the impact of repealing the HRA in Wales.
Human rights within the devolution settlement
156.The HRA affects the Welsh Government and the National Assembly for Wales (the Assembly) in two ways. First, they are “public authorities” for the purposes of the HRA, which means that they cannot act in a way which is incompatible with ECHR rights. Secondly, as in Scotland, Welsh Ministers are under a statutory duty, by virtue of the Government of Wales Act 2006, not to act or legislate incompatibly with “Convention rights”; those rights being defined as having the same meaning as in the HRA. Incompatibility with Convention rights can also be raised as a devolution issue under Schedule 9 to the Government of Wales Act 2006.190 Any provision in an Assembly Bill is outside the Assembly’s legislative competence if it is incompatible with ECHR rights.191
157.Thus Wales too has a different constitutional arrangement from the UK, in that incompatibility with ECHR rights will be fatal to executive and legislative competence; this has been the case since the Assembly was created in 1999, prior to the Human Rights Act 1998 coming into force. The Welsh Government commented that, as for the other devolved administrations, the Convention “is in our constitutional DNA and so we perhaps have a qualitatively different relationship with the Act to [that] which the UK Government has.”192
158.As with Scotland, the Welsh Government also has no power to make, confirm or approve any subordinate legislation, or to do any other act, that is incompatible with EU law.193 Similarly, a provision in an Assembly Bill is outside competence if it is incompatible with EU law.194 Changes to the HRA “have the potential to provide a diverging and complicated system by which citizens in Wales could challenge some EU/Convention rights breaches directly (reliant on Government of Wales Act 2006) whilst other issues would have to be pursued using whatever system the reformed UK human rights legislation puts in place.”195
The HRA—a ‘uniquely British approach’
159.In the Welsh Government’s view, the HRA represented a uniquely British approach to giving effect to ECHR rights in UK law:
“In 1998, the Human Rights Act was passed so as to allow individuals to argue cases involving Convention rights directly before a Court in the UK. At the time of this Act’s passing, it was hailed as ‘rights brought home’. That is why the Welsh Government finds the UK Government’s aim of introducing a ‘British’ Bill of Rights and Responsibilities unnecessary: we already have a British Bill of Rights in the form of the Human Rights Act. Further, it is crucial to have well in mind in considering these issues that, contrary to inaccurate media comment on the way in which the convention rights are now translated into domestic law in the UK, through the mechanisms provided specifically for this purpose by the Human Rights Act, those rights are in almost all cases interpreted and applied to the British context solely by British judges necessarily applying their British values … Indeed, the Human Rights Act itself represents a uniquely British approach to the implementation of the Convention.”196
Policy on repeal of the HRA
160.The Welsh Government was “fundamentally opposed”197 to the repeal of the HRA and to withdrawal from the ECHR. It believed that the mechanisms contained within the HRA were “an important and appropriate means for the people of Wales to challenge inequality and injustice and the ‘Convention rights’ enshrined within that Act rightly continue to influence its policies, legislation and decisions.”198 In Wales, people did not consider the Human Rights Act 1998 to be “broken”, nor in need of “fixing”.199
161.The Welsh Government drew our attention to the fact that the UK Government’s draft Wales Bill, published on 20 October 2015, proposed a similar approach to the devolution of ECHR rights to that contained in the Scottish settlement—that is, to reserve the HRA itself to Westminster, but to devolve observing and implementing obligations under the ECHR, and under EU law. It was therefore important that:
“the UK Government gives careful consideration to the involvement of the devolved administrations in matters which go to the heart of our respective constitutional settlements, and affords appropriate respect to the views of our democratically elected legislatures in relation to any proposals to amend or repeal the Act.”200
The Northern Ireland perspective
162.We received written and oral evidence from Professors Anthony and McCrudden on the impact of repealing the HRA in Northern Ireland. The Northern Ireland Executive did not respond to our invitation to submit evidence. The Government of the Republic of Ireland responded by drawing our attention to a letter from Frances Fitzgerald TD, Minister for Justice and Equality,201 to the Secretary of State, concerning the incorporation of the ECHR into Northern Ireland law.
Human rights within the devolution settlement
163.As in Scotland and Wales, legislative measures of the Northern Ireland Assembly and executive acts of the Northern Ireland Executive must conform to the ECHR and to EU law, and can be struck down by courts if they do not.202
164.Professors McCrudden and Anthony explained that human rights were neither an excepted nor a reserved matter, subject to certain qualifications.203 Neither Schedule 2 of the Northern Ireland Act 1998 (on what constitutes an excepted matter) nor Schedule 3 (on what constitutes a reserved matter) mention “human rights”, save where mention is made of the ECHR. The principle of the Northern Ireland Act is clearly set out in section 4(2), that a “transferred matter” means “any matter which is not an excepted or reserved matter”. As a result, it could be said that the Northern Ireland Assembly has power to legislate in respect of human rights as a transferred, in other words a devolved, issue.204
165.This interpretation is supported by section 69 of the Northern Ireland Act 1998 and related provisions in the Assembly’s Standing Orders, which require that the Northern Ireland Human Rights Commission should be consulted on whether Assembly legislation complies with human rights. In addition, under Schedule 2 of the Northern Ireland Act (on excepted matters), “observing and implementing international obligations, obligations under the Human Rights Convention and obligations under [EU] law” are specifically not included as excepted matters. Observing and implementing these obligations are therefore also devolved responsibilities.205
166.Although human rights are devolved, and the Assembly is empowered (and obliged) to act to observe and implement the ECHR, the Assembly and Northern Ireland Ministers are disabled from amending the Human Rights Act 1998 (as with Scotland and Wales). This is because the Human Rights Act constitutes an entrenched provision, meaning that it cannot “be modified by an Act of the Assembly or subordinate legislation made, confirmed or approved by a Minister or Northern Ireland department.”206
The particular status of the ECHR
167.Professor McCrudden explained that the status of the ECHR in the devolution settlement of Northern Ireland differed from that of Scotland and Wales in four important respects.
168.The first difference was that the domestic implementation of the ECHR, in the form of the HRA, was a critical part of the Belfast-Good Friday Agreement. Section 6 of the Agreement provided that:
“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”
In Professor McCrudden’s view, “that has brought about greater stability and reconciliation than has been possible since the foundation of Northern Ireland in 1920. The repeal of the Human Rights Act, therefore, risks destabilising the peace agreement by removing a critical part of that agreement.”207
169.The second difference was that the HRA currently played a role in Northern Ireland that was significantly different from that of the rest of the United Kingdom, “in addressing issues from the past that continue to dog the path to complete transition, such as the alleged complicity of security forces in paramilitary murders. The EU Charter of Fundamental Rights, for example, is no substitute for that.”208
170.Thirdly, the necessity of domestic incorporation of the ECHR in Northern Ireland was not only part of the peace agreement between the contending parties in Northern Ireland; it was also part of an international legal agreement between the Republic of Ireland and the UK: “Therefore repeal of the Human Rights Act risks at least breaching the UK’s legal obligations”.209
171.The fourth major difference was “that there is no guarantee that the Assembly would step in to fill the vacuum left by any repeal of the Human Rights Act in so far as it applies to Northern Ireland. There has already been a 17-year stand-off in implementing another part of the Good Friday Agreement, which envisaged the enactment of a Bill of Rights in Northern Ireland” supplementing the ECHR.210
172.Frances Fitzgerald TD, the Republic of Ireland Minister for Justice and Equality, wrote to the Secretary of State on 3 February 2016 concerning the incorporation of the ECHR into Northern Irish law.211 The letter was prompted by the UK Government’s proposals to replace the HRA and the Irish Government’s concerns, insofar as the proposals related to Northern Ireland. Ms Fitzgerald urged that, in advance of any public consultation, the UK Government should give the fullest consideration to the provisions of the Good Friday/Belfast Agreement, particularly to the requirement to incorporate the ECHR into Northern Ireland law. She explained that the Irish Government’s view was that “while a domestic Bill of Rights could complement incorporation, it could not replace it.” She continued:
“In addition, a strong human rights framework, including external supervision by the European Court of Human Rights, has been an essential part of the peace process and anything that undermines this, or is perceived to undermine this, could have serious consequences for the operation of the Good Friday/Belfast Agreement.”
173.She added that it was “essential that the two Governments are seen to be working together to strengthen the institutions of the Good Friday/Belfast Agreement.”
Would legislative consent be required?
174.Echoing the evidence of Mr Biagi, Professor McCrudden said there was a broad and a narrow interpretation of the Sewel convention and the relevant guidance.212 The broader interpretation was that all matters that significantly affected devolved matters in Northern Ireland were subject to the convention, such that if the UK Parliament wished to legislate in these areas, the agreement of the Assembly should be obtained. The narrower interpretation was that consent needed to be obtained only if the UK Parliament wished to legislate in areas specifically devolved to Northern Ireland.213
175.Professors Anthony and McCrudden concluded that enacting a new domestic Bill of Rights that applied to Northern Ireland:
“would involve amending the existing Northern Ireland Act’s allocation of powers to Ministers and the Assembly and would therefore require Assembly approval. We would suggest that this is certainly true as a matter of politics if not also a matter of law. We would also note that this directly involves the UK Parliament acting in the area of ‘human rights’, which we have seen to be a devolved matter.”214
176.If the broader reading of the convention were adopted, repeal of the Human Rights Act (as distinct from repeal and replacement with a Bill of Rights) would also seem to require Assembly approval.215
Would legislative consent be given?
177.Asked whether legislative consent would be given, Professors Anthony and McCrudden said that “the answer is likely to be ’no’, at least as things stand politically”.216 Any significant issue before the Northern Irish Assembly could be made the subject of a Petition of Concern, triggered by a group of Members of the Assembly. The effect of such a Petition of Concern would be to give both the major parties (Sinn Féin and the Democratic Unionist Party) effective vetoes over any issue before the Assembly, because a super-majority was required where such a Petition had been triggered. It seemed “highly unlikely that either Sinn Féin or the Social Democratic and Labour Party (to say nothing of the other political parties represented in the Assembly) would be willing to vote in favour of a legislative consent motion of this type, and highly likely that they would (separately or together) initiate a Petition of Concern.”217
The views of the UK Government
178.We asked the Secretary of State to comment on the views of Mr Biagi that human rights were a devolved matter in Scotland. He replied that they were:
“neither reserved nor devolved. Any reform or change to the Human Rights Act is a matter for the Westminster Parliament, but the application of human rights is a matter for Scots courts and, indeed, for the Scottish Government. If you can imagine a state of permanent pregnancy, then that is what we have. As to 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. However, I would not want to prejudge at this stage exactly how we might do so.”218
179.Asked whether there was a risk of a UK Bill of Rights becoming an English Bill of rights the Minister replied that he “hoped there would be a UK Bill of Rights.”219 He could not predict how individual politicians in the devolved assemblies would react, but, in terms of Northern Ireland:
“a majority of politicians in Northern Ireland would certainly like to see change. The fundamental principles of the convention are also, of course, there to protect individuals, and there are also minorities in Northern Ireland who look to that protection. It is not our intention to dilute that protection, and when people see the consultation document, people’s fears may well prove to be phantoms.”220
Conclusions
180.Human rights are entrenched in the devolution settlements of Scotland, Wales and Northern Ireland in a way that they are not under the UK’s constitution: acts of the devolved legislatures can, for example, be quashed by courts for non-compliance with the European Convention on Human Rights or the EU Charter.
181.The evidence we received from the Scottish and Welsh Governments demonstrates strong support for the role of the European Convention on Human Rights and the EU Charter to be preserved in those nations. The evidence we received from the Government of the Republic of Ireland and Professors Anthony and McCrudden went somewhat further in emphasising the vital role being played by the European Convention on Human Rights and the Human Rights Act in implementing the Good Friday Agreement.
182.The evidence demonstrates that the Scottish Parliament and Northern Ireland Assembly are unlikely to give consent to a Bill of Rights which repealed the Human Rights Act (we did not receive evidence on this point from the National Assembly for Wales). Were the UK Government to proceed without such consent, it would be entering into uncharted constitutional territory.
183.The difficulties the Government faces in implementing a British Bill of Rights in the devolved nations are substantial. Given the seemingly limited aims of the proposed Bill of Rights, the Government should give careful consideration to whether, in the words of the Secretary of State, it means unravelling “the constitutional knitting for very little”.221 If for no other reason, the possible constitutional disruption involving the devolved administrations should weigh against proceeding with this reform.
172 The Scotland Act 1998, section 29(1) states that “an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament”. Section 29(2)(d) lists incompatibility with “any of the Convention rights or with Community law” as outside legislative competence. Similarly, under section 57(2), a member of the Scottish Government “has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law”.
175 Q 37. This is consistent with a speech given by the First Minister in Glasgow on 23 September 2015, in which she highlighted her Government’s plan to strongly oppose any attempt to scrap the Human Rights Act or withdraw from the European Convention on Human Rights. First Minister Nicola Sturgeon, ‘Speech on Human Rights at Pearce Institute, Govan’, 23 September 2015: http://news.scotland.gov.uk/Speeches-Briefings/First-Minister-Human-Rights-1d7d.aspx [accessed 27 April 2016]
176 Devolution Guidance Note 10 provides that: ‘Consent need only be obtained for legislative provisions which are specifically for devolved purposes, although Departments should consult the [Scottish/Welsh/Northern Irish] Executive on changes in devolved areas of law which are incidental to or consequential on provisions made for reserved purposes.’ The question arises whether legislative provisions “specifically for devolved purposes” would include legislation directly altering the powers of the Scottish Parliament and Government. Cabinet Office, Devolution Guidance Note 10: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/60985/post-devolution-primary-scotland.pdf [accessed 20 March 2016]
177 The term “Sewel Convention” originated specifically in the context of Scottish devolution. The convention nonetheless applies to all the devolved nations. It is set out in paragraph 14 of the Memorandum of Understanding between the UK Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee, dated October 2013, which states that: “The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature.”
179 Cabinet Office, Devolution Guidance Note 10: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/60985/post-devolution-primary-scotland.pdf [accessed 20 March 2016]
183 The Scotland Act 1998, Schedule 4 lists the Human Rights Act as an “enactment protected from modification”.
190 The Government of Wales Act 2006, section 81 and section 158. Incompatibility with Convention rights can also be raised as a devolution issue under the Government of Wales Act 2006, Schedule 9.
191 Government of Wales Act 2006, section 108(6)(c)
193 Government of Wales Act 2006, section 80
194 Government of Wales Act 2006, section 108(6)(c)
201 Letter from the Office of the Minister for Justice and Equality, Dublin dated 3 February 2016
206 Northern Ireland Act 1998, section 7(1)
211 Letter from the Office of the Minister for Justice and Equality, Dublin dated 3 February 2016
212 Cabinet Office, Devolution Guidance Note 10: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/60985/post-devolution-primary-scotland.pdf [accessed 20 March 2016]