Bang to rights: What are the implications for Scotland of watered-down human rights protections?

The Scottish Government has never been a big fan of the UK Government’s plan to replace the Human Rights Act with a UK Bill of Rights.

Indeed, when Westminster launched a consultation on the proposal at the end of last year Holyrood could not have been more unequivocal in its response: “The Scottish Government wishes to make clear that it disagrees, as a matter of fundamental principle, with the proposition that the Human Rights Act should be replaced by a ‘modern Bill of Rights’.”

So, while deputy prime minister Dominic Raab did his best to paint his government’s newly tabled Bill of Rights Bill as a great move for the UK, something that will “strengthen our UK tradition of freedom whilst injecting a healthy dose of common sense” and “better protecting the public from dangerous [foreign] criminals”, it came as no surprise that the Edinburgh administration begged to differ.

Rushed through after the European Court of Human Rights put a stop to Tory plans to send asylum seekers to Rwanda, the legislation is, said equalities minister Christina McKelvie “shocking and unnecessary” and also appears to seek to “put UK ministers above some of the most fundamental checks and balances that underpin our democracy”.

“The fact remains that we do not need a new Bill of Rights,” she continued. “The Human Rights Act is one of the most important laws passed by the UK Parliament. For more than 20 years it has delivered fairness and justice – protecting our rights to privacy and liberty, freedom of expression and peaceful protest. It has prevented discrimination, inhumanity and the abuse of power.”

Introduced by Tony Blair’s Labour government in 1998, the Human Rights Act was designed to “bring human rights home” after British citizens had been forced for three decades to take their claim to Strasbourg if they felt their human rights had been breached.

A founding member of human rights organisation the Council of Europe, the UK ratified that body’s European Convention on Human Rights in 1951; British people were given a means of enforcing those rights when the UK signed up to the Strasbourg-based European Court of Human Rights in 1966.

As that meant taking their case directly to Strasbourg, many people missed out, with the cost of bringing a case as well as the necessarily selective nature of the court proving prohibitive.

The UK act, which came into force in 2000, wrote the protections of the convention into UK law and enabled those living in Britain to enforce their convention rights in UK courts for the first time. Strasbourg has remained the final arbiter for anyone able to make it there.

The UK Government is not proposing to withdraw from the Council of Europe, meaning it will still be bound by the convention in international law. But the intention of the Bill of Rights is to seriously reduce how binding that arrangement is, with the government preparing the ground to ignore any questions from Strasbourg on whether UK laws take proper account of convention rights. 

It is not just the Scottish Government that thinks that is a bad plan. The Scottish Human Rights Commission said the provisions outlined in the UK bill “will water down human rights protections, make access to justice more difficult and put the UK in breach of its international obligations”.

The commission’s legal head Barbara Bolton went further, noting that, if passed, the proposals would be “deeply regressive” and should be “of grave concern to us all”.

University of Cambridge public law professor Mark Elliott, meanwhile, wrote a blog in which he argued that if the Human Rights Act was about bringing rights home, the Bill of Rights is about sending them back to Europe “as part of a narrative that views with suspicion the judicial enforcement of human rights generally, and the involvement of a transnational court, in the form of the European Court of Human Rights, in particular”.

The situation for Scotland is, according to University of Aberdeen emeritus professor of politics Michael Keating, even worse. Noting that the European convention is incorporated twice in Scotland – once in the Scotland Act and once in the Human Rights Act – he says the proposed Bill of Rights would lead to confusion because it is only the latter it is seeking to replace.

“If we follow the convention in Scotland, but not in England it will be an extremely muddled and confusing situation,” he says. “The Human Rights Act is just for reserved matters, but the Scotland Act is where most of the cases have come up.”

Andrew Tickell, a law lecturer at Glasgow Caledonian University, says that while the UK Government appears to have tried to take account of that by saying it will amend the Scotland Act to mention the Bill of Rights rather than the Human Rights Act, in reality that only serves to muddy the waters further.

“People often say that the Human Rights Act is written into the Scotland Act but that isn’t really true,” he says. “Under the Scotland Act, Scottish ministers and the Scottish Parliament are obliged to uphold convention rights and anything they do which is incompatible is unlawful – the named persons legislation, for example.

“In terms of the Human Rights Act, how it works for devolution is almost like a dictionary of the key terms – it defines what a convention right is. The Scotland Act says the Scottish Parliament has the power to promote international human rights through law – it tried to do it with UNCRC [the Scottish Government had attempted to incorporate the United Nations Convention on the Rights of the Child into Scots law, but was prevented from doing so following a legal challenge from the Westminster Government].

“What the UK Government is proposing to do is a switcheroo – take out the Human Rights Act and put the Bill of Rights in its place in the Scotland Act. That raises questions about consent […] If any act of parliament changes the competencies of Holyrood, that would normally require consent.”

Other areas of the bill are problematic, Keating says, because of a “lack of sensitivity to the way the judicial system works in Scotland”. The implication that the Bill of Rights would give all UK citizens accused of a crime the right to a jury trial, for example, “impinges on the devolution settlement because criminal law is a devolved matter”. 

Tickell agrees. “It’s very weird,” he says. “The bill says you have the right to a trial by jury ‘except in the following circumstances’, but already well in excess of 90 per cent of all criminal trials take place without a jury on both sides of the border.

“In England and Wales most trials are in front of a lay magistrate, here they are in front of a sheriff. There’s a right in English law to have a jury – in certain circumstances you can choose to be tried by a jury in the High Court, but in Scotland you have no right to choose – it just goes where the procurator fiscal thinks it belongs.”

Keating says that if the bill sought to change that set-up, it would in effect also seek to change Scots law. “This could become a problem,” he says.

Though the expectation is that these issues would be up for debate as the bill passes through parliament, for Keating, much of hype around the bill has been stirred up for political reasons, with the Tory government bringing it forward in a show of “political posturing”. Tickell stresses that that in itself is problematic because, as drafted, the bill constitutes “strange law and not very good politics”.

Playing politics is all well and good – all governments do it and, from the Tory administration’s point of view, being able to rush something out so soon after a European court ‘interfered’ with its Rwanda plan, means the timing of this particular game could not have been better.

But, as Murray Etherington, president of the Law Society of Scotland, points out, there is far more than political one-upmanship at stake with the Bill of Rights plan. Every one of us is currently protected by the European Convention on Human Rights, with those rights being accessible via UK and Scottish laws for more than 20 years. “It is vital that they are not diminished as a result of new legislation,” Etherington says.