Bill of Rights ‘harmful and unwelcome’, says Scottish Government

The Bill of Rights would make the UK Supreme Court the ultimate arbiter of human rights law in Scotland.

Craig Paton
Sunday 04 September 2022 00:01 BST
Equalities minister Christina McKelvie hit out at the proposals (Fraser Bremner/Daily Mail/PA)
Equalities minister Christina McKelvie hit out at the proposals (Fraser Bremner/Daily Mail/PA)

The UK Government’s proposed Bill of Rights is “harmful and unwelcome”, the Scottish Government has said in response to a consultation.

The highly controversial legislation would replace the Human Rights Act and mean the UK would not have to always follow case law from the European Court of Human Rights.

Ministers introduced the Bill in June, with its first reading due to take place on September 12.

Responding to a call for evidence from the Joint Committee on Human Rights, the Scottish Government voiced its opposition.

Equalities minister Christina McKelvie said: “The Scottish Government has repeatedly said that there must be no changes to the Human Rights Act that undermine or weaken existing human rights protections.

“The UK does not need a new ‘Bill of Rights’.

“That role is already very successfully performed by the Human Rights Act, which has a 20-year track record of delivering justice, including for some of the most vulnerable people in our society.”

She added: “The UK Government’s proposals have been comprehensively condemned, not just in Scotland but across the whole of the UK.

“UN experts have also recently written to highlight their concerns.

“This Bill will do serious harm to human rights and fundamental freedoms in the UK, and it will badly damage the UK’s international standing.

“The Bill of Rights Bill is ill-conceived and unwelcome. Some of the provisions are confusing and contradictory.

“It interferes with the constitutional settlement in Scotland by legislating for devolved matters, undermining the Scottish Parliament and Scotland’s devolution settlement.

“The Scottish Government remains committed to protecting the Human Rights Act in its current form.”

The response claims the UK Government seeks to overturn the principle that the European Convention on Human Rights represents a “floor and not a ceiling” on human rights law.

This is a perplexing proposal

Scottish Government response

The Bill would prohibit courts from adopting “an interpretation of the right that expands the protection conferred by the right unless the court has no reasonable doubt that the European Court of Human Rights would adopt that interpretation if the case were before it”.

“This is a perplexing proposal,” the response said.

“The UK Government has asserted that its objective is to ‘strengthen domestic institutions’.

“But this clause explicitly constrains the discretion currently available to the UK’s own courts to consider the specific domestic context and establishes a new maximum extent to the Convention rights (as they apply in the UK) which depends entirely on decisions reached by the Strasbourg court.

“The proposal is also detrimental to the overall functioning and development of the convention, in particular the principles of evolutive interpretation and living instrument doctrine.”

In the 20-page response sent to the committee, one of the main concerns raised was the Bill’s impact on the constitutional settlement, with the Scottish Government accusing ministers of “executive overreach”.

Clause 40 of the Bill would allow ministers to “amend or modify any primary or subordinate legislation so as to preserve or restore (to any extent) the effect of a relevant judgment of a court”.

The Scottish Government response claims this would allow UK ministers to “pick and choose which features of existing human rights case law, as decided by the courts, are to be retained and which are to be discarded”.

“That is constitutionally unacceptable and contrary to the fundamental notion that rights are a means of holding state power to account,” the response added.

“The fact that regulations which modify or amend primary legislation are to be subject to affirmative procedure provides little reassurance.”

A spokesman for the UK Government said: “Our proposals will strengthen UK human rights, such as freedom of expression, while staying a party to the European Convention on Human Rights. Our reforms will inject a healthy dose of common sense to curb the abuse of human rights.

“We want everyone to benefit from a new Bill of Rights. We have sought views from across the UK on how best to deliver these reforms, while reflecting the different traditions and practices of all parts of the UK.”

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