Legislating, normally, without consent

Sunday National, 26th June 2022.

When the Human Rights Act was introduced in the UK in 1998, it was about “bringing rights home.” The European Convention on Human Rights was drafted in the aftermath of the Second World War. It concerns basic civil and political rights – from the right to life and to be free from torture and inhuman and degrading treatment – to the right to a fair trial, to privacy, liberty, free expression, freedom of thought, conscience and religion, freedom of assembly.

Signed in 1950, the European Court of Human Rights in Strasbourg was founded in 1959. Initially, states could decide whether or not to give their citizens the right to petition this new international court directly. Britain dragged its feet until 1966, before finally subjecting itself to the court’s jurisdiction.

But from the perspective of an ordinary litigant with a human rights issue, getting a case to Strasbourg was – and is – by no means easy. To take a case to Strasbourg, you must first exhaust all domestic remedies. That usually means going through every court process conceivable. This remains a long, exhausting and expensive process – but it was all the more challenging between 1966 and 1998. Why? Because you couldn’t argue your Convention rights in British courts. The UK was bound to protect your rights internationally, but ECHR rights weren’t part of domestic law in any part of the UK until the Human Rights Act made it so.

One of the most startling examples of the implications of this in practice was the case of Smith and Grady. Jeanette Smith and Graeme Grady served in the RAF. Both showed every evidence of being good workers. Both were marked for promotion. And then, in the early 1990s, both were investigated and discharged from the RAF because they were gay. Smith was turned in to military authorities by an anonymous phone call. Military police searched Grady’s home. Both were interviewed in an invasive, prurient way about their sexuality before being dismissed.

The Ministry of Defence maintained that homosexuality was “incompatible with service in the armed forces,” on the basis that “homosexual behaviour can cause offence” and “induce ill-discipline.” Smith and Grady sued, and they lost their case in the UK courts at all levels. Why? Because they couldn’t rely on their Article 8 privacy rights in British courts. Instead, they had to couch their case in terms of toothless common law remedies.

Smith and Grady tried to persuade the British courts that this policy was irrational. The British courts deferred to the Ministry of Defence. When their case finally reached Strasbourg, the ECHR ruled unanimously in their favour, determining the policy violated their right to privacy. The Human Rights Act brought these arguments home. If it had been in force when Smith and Grady first launched their case, they are likely to have won their case in the UK, without the long slog to Strasbourg.

The Act does other important things. It says it is unlawful for any public authority to violate Convention rights in the UK. This means the police and courts – but it also means universities, hospitals, local councils, government departments. It says that courts should interpret the whole statute book in a way which gives effect to human rights – and it gives them the authority, if they cannot do so, to declare that legislation is incompatible with fundamental rights.

The ECHR was even more firmly entrenched in the new devolution settlements passed the same year. It is often said that the Human Rights Act is “written into” the Scotland Act. This is only half true. Unlike the UK government, Scottish Ministers are required by law to uphold the rights set out in the European Convention. Unlike the UK parliament, legislation passed in Holyrood is subject to scrutiny for its ECHR compliance – and if it isn’t, Scottish courts have the power to strike that law down. While the UK government are determined to neuter the judicial scrutiny they are subject to, they’re quite content for the devolved institutions to have their legislation delayed and in some cases denied by the courts on human rights grounds. When judges do that, the courts are no longer interfering inappropriately with political decisions endorsed by the legislature – but are routinely represented by Conservative politicians as keeping the devolved legislatures in line and demonstrating Scottish Government incompetence.

I know consistent politicians are rarer than hen’s teeth, but the fact that Tories don’t notice the contradictions in their position tells you everything you need to know about where devolved institutions fall in their constitutional imagination. Rules are for other people. Parliamentary sovereignty is the whole game. The Bill of Rights introduced to Westminster this week is written as if devolution never happened, and only one “Parliament” is engaged in decisions affecting human rights in this country or dealing with judges interpreting what they mean. Countries which are serious about federalism and power sharing don’t work this way.

Because the Bill of Rights has big implications for the devolution settlement. In essence, what Dominic Raab wants to do is strip all the references to the Human Rights Act out of the Scotland Act and install the British Bill of Rights in their place, with all of its new restrictions. Can they do this?  

It’s complicated. The Human Rights Act is a protected statute, meaning Holyrood can’t amend or repeal it – but human rights aren’t reserved matters. Indeed, the Scotland Act specifically extends the power to Holyrood to pass legislation “observing and implementing international obligations” – including the human rights treaties. The Scottish Government have indicated that they intend to use this competence to bring four other treaties into Scots law later this parliamentary term.

The folk running around saying the Bill of Rights is a “constitutional matter” and therefore reserved to Westminster are talking out of their hats. Even the UK government accepts its proposals will make serious inroads into devolved competencies. This means a few things. Firstly, it means that the UK government will need to seek permission from Edinburgh, Cardiff and Belfast to pass the British Bill of Rights. Raab has already admitted that at least 17 elements of the Bill require the consent of the Scottish Parliament, including almost all of its key clauses.

You’ve probably heard of the Sewel Convention. It was written into the Scotland Act 2016 – but has been around since the Scottish Parliament was first established. It says that Westminster “will not normally legislate with regard to devolved matters without consent.” The convention has another aspect to it: the UK Parliament shouldn’t “normally” give – or take – powers from the devolved parliaments without their consent.

The Bill of Rights does both. But being a constitutional convention – one of the outgrowths of the “good chaps” theory of British government – Sewel is all gums and no teeth. Despite being written into law, the UK Supreme Court gave short shrift to suggestions the convention should be legally enforceable. Holyrood will not consent to these changes. Westminster is guaranteed to impose them anyway.

For the UK government to genuflect to Sewel now is pure humbug. The convention is now the opposite of the reality. Westminster normally legislates about devolved matters without consent. Westminster normally strips powers from Holyrood without consent. And when the Scottish Parliament refuses to endorse these changes, Westminster will quite normally override MSPs’ wishes and impose the Bill anyway. And these days, it doesn’t bat an eyelid in doing so. Scotland’s fundamental predicament within the union remains this: power devolved is power retained.

This Westminster government has proven, time and again, that they aren’t interested in gentlemen’s agreements or rules without sanctions or rules with sanctions which they can avoid. They take their cue from the head boy: they’ll do precisely what they reckon they can get away with. And with a parliamentary majority in Westminster behind them, they reckon they can get away with more or less anything. The surest way of securing fundamental rights isn’t through law or the courts, but by living in a country and electing governments which will uphold them.

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