Human Rights Framework: Scotland

Dominic Raab Excerpts

Wednesday 2nd March 2016 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

It is an honour and a pleasure to serve under your chairmanship, Mrs Main, for the first time, I think. We have stood shoulder to shoulder on many issues and you have steered us wisely thorough this debate.

I congratulate the hon. Member for Dumfries and Galloway (Richard Arkless) on securing the debate, and other hon. Members on their stimulating contributions. In particular, I thank the right hon. Member for Orkney and Shetland (Mr Carmichael) for sharing his fantasy of a British Bill of Rights with us. The serious point that he made is that the Human Rights Act is not the last word on human Rights: it is not the perfect incarnation of human rights in this country, and therefore it can admit of change. I sensed agreement on that point, so the real bone of contention is what that change might look like, rather than the principled question of whether the Human Rights Act has become untouchable.

The Government are fully committed to the protection of human rights across the UK. This debate is an important opportunity to reflect on what that protection looks like now, what it might look like in the future and how it might be improved. The Prime Minister made it clear that the Government will work in the interests of all four nations of the UK, and it goes without saying that I share that commitment. One of the things that unites us as a country is our shared commitment to liberty and the rule of law. Although that commitment has evolved though different instruments, from Magna Carta and the 1689 Bill of Rights in England and Wales, to the Scottish Claim of Right, the nations of the UK have evolved with a shared commitment to the common values that underpin human rights and, indeed, the Union.

As an Englishman, I am proud to pay tribute to the Scottish landmarks on Britain’s long road to liberty. I mentioned the Claim of Right, to which can be added the Criminal Procedure Act 1701, which established and entrenched the principle of habeas corpus in Scots law. Scotland has produced some of our very finest thinkers on the subject of liberty and the rule of law. I would single out David Hume and his essays on the liberty of the press and civil liberty. He regarded Government not as the enemy of liberty but as a necessary condition for liberty. As hon. and right hon. Members will know, his work came in the context of the period after the Act of Union, so it was part of the intellectual fabric that binds this United Kingdom.

We share not only the values, but the things that emanate from them—the practical products of a commitment to liberty, such as free elections, a ban on cruel and unusual punishment, free and fair trials, and free speech. Those values and their product found voice and strength in Scotland as in the rest of the United Kingdom and are shared across the UK. At the same time, we must reflect on the pluralism within the UK and that the UK is a union of diverse interests, history and legal traditions. Notwithstanding our shared commitment to rights and liberty, there are areas where we diverge. We can look, for example, to the right to trial by jury that exists in England and Wales. Jury trial is practised in Scotland, but it is not there as a strict right, which is perfectly legitimate and respectable. There is room for different applications of fundamental freedoms across the UK. That diversity is not merely to be expected; it is to be welcomed. It would be odd were the SNP, which is effectively committed to secession, not to think that that pluralism was a good idea.

[Joanna Cherry]

Will the Minister give way?

[Mr Raab]

I will just make a little progress and then I will certainly take interventions.

The balance between shared values and the different application of those values finds voice today in Scotland’s human rights framework. The protection of rights and liberty remains at the heart of Scotland’s devolution settlement—a point made well by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the hon. Member for Dumfries and Galloway. The compatibility of devolved legislation with fundamental human rights is central to the competence of the Scottish Parliament. While competence for the UK’s human rights framework remains with the UK Government and this House, the Scottish Parliament and the Scottish Government are responsible for the application of human rights in devolved areas and are free to act on human rights issues within devolved policy areas. The core substantive rights are common across the UK, but we have an element of pluralism in our approach to the procedural mechanism for protecting human rights. That variable procedural geometry means that the application of human rights admits some measure of variation across the UK.

We had lots of theoretical considerations of the human rights position as it applies in the UK and in Scotland, but let us discuss some tangible illustrations. Unlike in England and Wales, for example, the Scottish Government do not provide for mandatory fatal accident inquiries for unnatural deaths of persons detained under mental health laws, despite some criticism from the Scottish Human Rights Commission. Another example is the hourly rousing of detainees in police cells, which takes place in Scotland but applies only to vulnerable detainees in England. Her Majesty’s inspectorate of constabulary in Scotland recommended reform in that area. A third example—again, this list is illustrative, not exhaustive—is the notification period for demonstrations in Scotland, which is 28 days compared with six days in England. That has been the subject of criticism by the UN’s special rapporteur on the rights to freedom of peaceful assembly and of association. It is also highlighted in “Is Scotland Fairer?” the Equality and Human Rights Commission’s latest report, along with other areas that the commission concluded required improvement, such as violence and harassment against children and young persons and hate crimes perpetrated on grounds of disability or sexual orientation.

I should make it clear that the Government support the principle that Scotland should have the freedom to take action on rights in devolved areas, in line with its own priorities for implementation, and to decide how it balances fundamental human rights with the need to implement practical and sensible policies for the people of Scotland.

[Joanna Cherry]

I mentioned in earlier that the Council of Europe’s commissioner for human rights recently visited the UK. Is the Minister aware that the commissioner complimented the Scottish Government on the fact that they are looking to go beyond the European convention on human rights by implementing other international human rights treaties directly into Scots law? Is the Minister aware that the commissioner also said:

“The Scottish National Action Plan for Human Rights is also a good example for”

the rest of the United Kingdom?

[Mr Raab]

I read the remarks of the commissioner. Indeed, I met him in person and he seemed satisfied with the assurances I gave him that our reforms, proposals and what we have in mind will not see us turn into the basket case of Europe or become like Belarus, which is nonsense that is bandied around frankly rather irresponsibly. I did meet the commissioner and did read his comments about Scotland, and it is right to pay tribute to the improvements and to what the rest of the Union can learn from Scotland. Action plans and the theoretical stuff is fine, but it is what we do in practice that really counts for the citizens of Scotland and indeed the rest of the UK.

In addition, the more powers that the Scottish Government assume for the implementation of human rights for the people of Scotland, the more they can be expected to be questioned and evaluated on the degree to which they live up to the responsibilities that they acquire. We hear an awful lot from the SNP in this House about how the UK Government and Parliament are threatening human rights in Scotland, but I hope that that is not being used as a distraction from considering the degree to which the Scottish Government meet their commitments in reality in Scotland. It is not about brandishing action plans, to which the hon. Member for Dumfries and Galloway referred, and making pious policy statements about human rights in theory instead of focusing on delivering in practice. Perhaps the hon. and learned Lady would like to respond to that point.

[Joanna Cherry]

I would not, because the Minister is here to answer questions put to him by us in this debate. I am conscious of the clock and that there is about three and a half minutes left. He has been asked a number of questions by my hon. Friend the Member for Dumfries and Galloway (Richard Arkless) that he has not yet answered. He has also been asked some important questions by the spokesperson for the official Opposition about the purdah period. Will the Minister answer those questions?

[Mr Raab]

I thank the hon. and learned Lady. We have given answers to all those questions before.

[Richard Arkless]

Will the Minister give way?

[Mrs Anne Main (in the Chair)]

Order. It is usually customary to let the Minister respond to the question being asked.

[Mr Raab]

I am happy to give way, but if we have a Gatling gun salvo of interventions, that rather eats into my time and opportunity to address such matters. I will, however, give way to the hon. Gentleman, as it is his debate.

--- Later in debate ---

[Richard Arkless]

Tell us!

[Mr Raab]

We have made it clear that the Human Rights Act can be revised only by the UK Government, but the implementation of many human rights issues is devolved. The right hon. Member for Orkney and Shetland neatly summed up the position on the Sewel convention and legislative consent motions. Scotland cannot responsibly take a decision on such things until it has its package. In relation to the European convention on human rights, which the hon. Member for Dumfries and Galloway also asked about, I do not know how many times I have said it in the House, but our current plans do not involve our withdrawal from the convention. If the hon. Gentleman has been in for Justice Question Time once over the past six months, he will have heard me say that.

In fact, the Scotland Bill, which is currently completing its passage in the other place, serves as a reminder of the Scottish Parliament’s role in deciding the right balance for Scottish people in Scotland. To take just one example, when competence for the franchise in local and Scottish parliamentary elections is devolved to the Scottish Parliament, it will be for the Scottish Parliament and the Scottish Government to determine whether the current ban on convicted prisoners voting ought to remain, as in the rest of the UK. The SNP has made it clear that it did not want the franchise extended to prisoners for the Scottish referendum. Nicola Sturgeon made that clear in May 2013.

[Joanna Cherry]

Will the Minister give way?

[Mr Raab]

I will not because I have so little time left.

Under the Human Rights Act, however, once Scotland has devolved responsibility for the franchise, the only way that the Scottish Government will be able to retain the ban on prisoner voting is by relying on the nationwide ban enacted by the UK Parliament here at Westminster. It is one of those things that SNP Members should remember, ’fess up to and be a bit more honest and straightforward about when they hurl around the suggestion that we are attacking human rights.

There is actually widespread support in Scotland for replacing the Human Rights Act with a Bill of Rights, which has been borne out by all the YouGov polling.

[Joanna Cherry]

Nonsense!

[Mr Raab]

The hon. and learned Lady does not like the facts.

The truth is that the UK’s history of respect for human rights predates the Human Rights Act in all parts of the United Kingdom. That protection will continue to be totally central to our human rights framework in the years ahead. I look forward to many more opportunities to discuss the substance and detail of the framework with hon. Members in due course.

Question put,

That this House has considered the future framework for human rights in Scotland.

The Chair’s opinion as to the decision of the Question was challenged.

Question not decided (Standing Order No. 10(13)).