Scotland could be allowed to retain the Human Rights Act even if Westminster sidelined the European Court in favour of an “English” Bill of Rights, according to new plans being considered by Michael Gove.
A pledge to challenge the authority of the European Court by abolishing the Human Rights Act (HRA) and replacing it with a “British” Bill of Rights, had been widely expected to be included in last week’s Queen’s Speech. Although plans to scrap the HRA were put on hold, the Justice Secretary has told advisers he remains determined to break the formal link between British courts and Strasbourg.
With the UK’s devolved administrations opposed to any substitution of the HRA by a British Bill of Rights, and the Scottish government on record as stating it would not give the legislative consent required to implement the change, Mr Gove is considering by-passing such legal difficulties with a radical solution.
Justice Department sources have told The Independent on Sunday that the HRA could be allowed to remain part of Scotland’s distinct legal system if an “English” – rather than a British – Bill of Rights were brought in.
The England-only solution would, according to some Justice Department advisers, also address the problems of Northern Ireland and the Good Friday Agreement. Any watering-down of the influence of the European Convention could breach the terms of the international agreement and treaty seen as critical to continuing peace in Northern Ireland. The Sinn Fein leader Gerry Adams has described the plan to scrap the HRA as a “scandalous attack” on the 1998 peace agreement.
Failure to secure adequate numbers of MPs in the Commons to push through a British Bill of Rights to replace the HRA was seen last week as a key reason for the unexpected climb-down.
The level of unease in senior ranks of Conservative legal circles that the HRA issue has not been kicked into the long grass, is made clear by Sajjad Karim, the Tory legal affairs spokesman in the European Parliament.
Writing in the Independent on Sunday, Mr Karim, the MEP for North West England, warns that “much of the international community is perplexed that the UK, of all countries, should be contemplating leaving the European Court of Human Rights” (ECHR).
Although accepting that the ECHR and the Human Rights Act are seen by many as a “charter for abuse by terrorists and criminals”, he advocates that “withdrawal from the [European] convention would be a retrograde step for the steady improvement of our laws that independent, international co-operation with the ECHR provides”.
Mr Karim said the UK should be “committed to reforming the court from within, rather than withdrawing from it completely.”
There is also internal concern among some Justice Department lawyers that Mr Gove’s predecessor, Chris Grayling, produced a “legal dog’s breakfast” that misunderstood and misinterpreted the positions of Scotland and Northern Ireland. Addressing these barriers is behind the move to examine an “English” Bill.
If Scotland is allowed to retain the HRA, and David Cameron acknowledges SNP concerns over devolution and delivers an enhanced devo-max for Holyrood, the impression that the UK is heading towards an inevitable federalist system will be difficult to dismiss.
Although Scotland retained its own legal system in the 1707 Union treaty which formed Great Britain, the two legal territories have largely mirrored each other for 300 years. However if the HRA held force in the devolved UK governments, but not at Westminster, that would be a marked departure. Dr Cormac Mac Amhlaigh, who teaches EU constitutional and human rights law at the University of Edinburgh Law School, said: “I don’t think there would be a problem with an English Bill of Rights. It could get messy, but the legal problems would not be insurmountable.”
Although the HRA is a reserved matter, with Westminster retaining authority, Dr Mac Amhlaigh said there were areas of human rights which have been devolved to Scotland. He added: “If the proposal is to introduce a Bill of Rights which replaces the HRA, that touches on an area which is devolved. While an English Bill of Rights may have no constitutional problems, this is not an attractive solution.”
For critics of the Government’s assault on Strasbourg, the possibility of Scotland being allowed to retain the HRA, but an English Bill of Rights being forced on the rest of Britain, is seen as part of a “divide and rule” strategy by Mr Gove.
Shami Chakrabarti, director of the legal rights pressure group, Liberty, said: “Any delay in the government plans to scrap the Human Rights Act is welcome, but this fight is far from over. Contempt for the rule of law is so visceral in some elite circles that we can expect a drawn-out attempt to perfume the Grayling plan, to pick off Conservative rebel MPs and for a strategy of ‘divide and rule’ among the peoples of the United Kingdom to take place. There are more myths and scaremongering to come.”
Previously, Liberty described the early proposals on scrapping the HRA drawn up by Mr Grayling as showing “breathtaking disregard” for Northern Ireland, Scotland and Wales. Even if devolved administrations in Edinburgh or Cardiff were not covered by an English Bill of Rights, Liberty have argued that they too would be affected and suffer from “diminished protections” in relation to action which originated at Westminster.
Before the general election, Scotland’s Social Justice Secretary, Alex Neil, told the Scottish Parliament that the Tory manifesto promise to scrap the HRA would be opposed. He said: “The Scottish government’s position is that these proposals will require legislative consent, and this parliament should make clear that such consent will not be given.”
However the prospect of an English Bill of Rights could leave Nicola Sturgeon’s Holyrood administration facing a dilemma. Does it continue to oppose scrapping the HRA throughout the UK, or does it accept retaining the HRA in Scotland as sufficient?
A Scottish government source told the IoS that no one from Mr Gove’s department or from the UK government had suggested Scotland could be exempt from a Bill of Rights. The source said : We have made our opposition to the Tories’ plans to repeal the Human Rights Act very clear, and we expect the Scottish Parliament to refuse legislative consent should it come to that.”
A Ministry of Justice spokesman said that the Government would be considering the implications of a British Bill of Rights on devolution as it developed its proposals and added that it would “fully engage with the devolved administrations”.
Mr Gove’s department appeared to be on course to eventually displace the HRA. In its statement it noted: “This Government was elected with a mandate to reform and modernise the UK human rights framework. A British Bill of Rights will protect fundamental human rights, but also prevent their abuse and restore some common sense to the system.”
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