Human Rights Framework: Scotland

Joanna Cherry Excerpts

Wednesday 2nd March 2016 Westminster Hall

[Margaret Ferrier (Rutherglen and Hamilton West) (SNP)]

It is a pleasure to serve under your chairmanship, Mrs Main, and I thank my hon. Friend the Member for Dumfries and Galloway (Richard Arkless) for securing this very important debate.

Last December, I had the great pleasure of tabling an early-day motion to recognise Human Rights Day 2015. As a lifelong advocate of human rights, one of the great privileges of being an elected Member is now being in a position to effectively defend them, and they do need defending, as they are under attack from the current Government. They will say that this piece of legislation—the Human Rights Act—is not one and the same as our actual rights and that the reaction to their plans has been overblown. I say that is nonsense. Plans to scrap the Human Rights Act are no less than a full-on assault on the rights that I hold dear. The dismissiveness of the Government betrays the seriousness of the implications of their plans. It is a decade since the Prime Minister set up a panel of legal experts to draw up a British Bill of Rights to replace the Human Rights Act. Ten years on and that plan is still met with the fiercest opposition. Ten years down the line, the Tories are still unable to spin their plans as favourable, useful or in any way feasible.

It is important to remember that the Human Rights Act received cross-party support back in 1998. It is just as important that the Prime Minister’s plans do not even have the full support of his own Back Benchers, let alone Members from other parties.

[Joanna Cherry (Edinburgh South West) (SNP)]

Is my hon. Friend aware that the Council of Europe’s Commissioner for Human Rights visited the UK in January and said:

“My impression is that the debate over the HRA in Westminster is not a true reflection of concerns outside England”?

With regard to the position in Scotland, does she agree with the Commissioner’s statement?

[Margaret Ferrier]

Yes, I totally agree with that statement. It is important, not only in England and Scotland but worldwide, that we support human rights and hold firm our thoughts on how important they are.

The tenacity of the Prime Minister in pursuing this wholly unpopular and unnecessary move is deeply unsettling. Like a hunting dog with a scent, he simply will not accept defeat. One wonders precisely what the motivation behind that staunch attitude is. After all, the plans are not only appalling, but risk a complete constitutional change and crisis in the UK.

Human rights are not reserved, and it is not conceivable that the Human Rights Act could be scrapped without legislative consent from the Scottish Parliament. I am proud that the Scottish National party will stand up to the Tories and will not buckle over our fundamental rights. I stood for election under the party promise that we were “Stronger for Scotland”. For me, our steadfast and unyielding opposition to this attack on human rights is our motto in practice. People in Scotland want a strong voice standing up to the unscrupulous attacks on our rights and core values, and that is what we are providing. Human rights are not Scottish, English, Welsh or Northern Irish—they are not American or Australian for that matter. Human rights are universal, and we will not stand by and allow them to be diluted wherever they face threat. Repealing the provisions of the Human Rights Act would be nothing short of a colossal misjudgment, as it would remove important protections for people in the UK.

It is important to point out that the Human Rights Act did not give any new rights to UK citizens when it became law in 1998. It ensured that convention rights could be interpreted and considered by courts here in the UK. The UK was one of the first states to ratify the European convention on human rights. It is only right and proper that those rights are upheld in British courts, without the need to take cases to the European Court of Human Rights, if we are still in Europe. Justice should be accessible, yet just as we have seen with the introduction of tribunal fees, the Tories seem hellbent on making it as prohibitive as possible, particularly for those on low incomes. Human rights are centred on fairness for all of us. Removing access to justice, or at least making it much more difficult for vulnerable people, is itself an attack on our rights. What does that say to the rest of the world? What message does it send if we are unwilling to stand up to regimes such as that in the Saudi Kingdom, and instead pour our efforts into degrading our own protections?

My early-day motion called on the Government to work constructively with other Governments to promote the universality of human rights. The convention on human rights remains as much the shining beacon of human achievement that it was decades ago when Winston Churchill was championing it. I want to see human rights protected not only in Scotland, but across the UK and beyond. I want to see our human rights strengthened, not diminished. I want to see fairness at the core of everything we do as legislators. We can only do that if we stand up against these plans, loudly and clearly, and say no.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I congratulate the hon. Member for Dumfries and Galloway (Richard Arkless) on obtaining this debate. I apologise for being a little late, but I caught up during the latter stages of his contribution. I was interested to hear the speech by the hon. Member for Rutherglen and Hamilton West (Margaret Ferrier), who dealt with the threat posed by the discussion that is clearly going on within Government on the future of the Human Rights Act 1998. Without disagreeing with what she said, this is a moment where we might stop and take stock. If the Government are conducting a good-faith exercise, it need not be a threat, and it could be an opportunity.

Let us not forget that the implementation of the Human Rights Act brought a greater and more immediate degree of access to convention rights. The convention was written in the 1950s and the framework of human rights and wider jurisprudence was very different from the one we have today. Nowadays, there is a whole range of different rights, including employment rights and social and economic rights, that are worthy of protection and of being given the same status as the right to a family life, for example, which is an important part of the ECHR. Those are the sorts of rights that I would like to see brought in. If this is a good-faith exercise on the part of the Government—that remains to be seen, and I am prepared to give them the benefit of the doubt for the moment, because we have never heard much by way of progress, although perhaps the Minister will have something to tell us today—I am happy to engage with them on the basis of broadening and strengthening the human rights covered by the Human Rights Act.

At this stage, it is useful to remember the history of the debate that brought us to where we are today. Essentially, the creation of the Human Rights Act and the terms in which it was introduced were something of a fudge. Throughout the 1990s and back into the 1980s—and possibly before that, for all I know—there was ongoing and substantial debate about the creation of a British Bill of Rights. I say that it was a fudge because the creation of a Bill in the terms that were discussed would have brought with it a fairly substantial challenge to the conventional Diceyan view of parliamentary sovereignty and the sovereignty of this place.

The justiciability of decisions taken by Government and Parliament was something that Tony Blair just did not have the stomach for taking on, even in the early years of the 1997 Government. For that reason, he came forward with a fudge, albeit an elegant one. It compelled courts to bring consideration of convention rights in an immediate way that meant that citizens did not have to go through the whole rigmarole of taking things to the European Court of Human Rights. Indeed, it has worked well ever since. In the time since the Human Rights Act was introduced, we have seen a substantial revision of the Diceyan view of parliamentary sovereignty. If we were to start with a Bill of Rights today, it would not scare the horses in the way that it clearly scared Tony Blair back in the late 1990s.

[Joanna Cherry]

Like me, the right hon. Gentleman is a Scots lawyer. Does he agree that the Diceyan view of the sovereignty of Parliament is very much a doctrine of English constitutional law? In Scottish constitutional law, there is a very strong foundation, recently reiterated by Lord Hope in the Supreme Court, in Jackson v. Attorney General, that the doctrine of parliamentary sovereignty is an English doctrine and that in Scotland the people are sovereign.

[Mr Carmichael]

That was a debate that we enjoyed in the 1990s—I say “enjoyed”, but I use the word in the loosest possible sense—in the days of the constitutional convention. It was the underpinning of the claim of right that led to the Scottish Parliament being founded. There is a fairly long pedigree of jurisprudence in Scots law. Dredging my memory of the days of constitutional law, I go back to the case of MacCormick v. Lord Advocate, where that view was well-founded, albeit in obiter dictum.

The opportunity is there for something more to be done with human rights and a new Bill of Rights that would build on the Act that we currently enjoy. I hope the Minister would be open to that. More important and more fundamental to me than the Human Rights Act is that this country should remain a party to the European convention on human rights. If the worst predictions of the hon. Member for Rutherglen and Hamilton West were to come true and the Human Rights Act were repealed, that would not deprive us of the convention rights; it would just make them that much more inaccessible. It would take us back to the situation we had before the 1998 Act, when citizens could access their convention rights, but it ultimately required going all the way to the European Court of Human Rights. That would be a genuine retrograde step.

To pick up the point made by the hon. Member for Dumfries and Galloway, that would also put us in rather poor company. In fact, leaving the convention on human rights would leave the United Kingdom sitting—I hope rather uncomfortably—with Belarus.

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[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairpersonship, Mrs Main.

My hon. Friend the Member for Dumfries and Galloway (Richard Arkless), who secured this debate, made it clear that he specifically wanted to talk about legalities. He has argued that human rights are integral to the devolution settlement, and he referred to the fact that the European convention on human rights is written into the Scotland Act 1998 in sections 29 and 57, which provide that the Scottish Parliament cannot pass any legislation that is contrary to any of the convention rights, and a Scottish Minister or a Member of the Scottish Government cannot pass legislation or carry out any act that is contrary to convention rights. Neither of those sections would be changed by a simple repeal of the Human Rights Act, because they are part of the Scotland Act.

My hon. Friend also made the point that if we look at the scheme of devolution that was devised by the late Donald Dewar, who was the first ever First Minister of Scotland, his plan was simple and, in my view, to be lauded: everything would be devolved unless it was specifically reserved. We find in schedule 5 of the Scotland Act a list of the matters that are specifically reserved to the United Kingdom Parliament, but one will search in vain for any mention of human rights in schedule 5, so in my respectful submission it is not correct to say that human rights are a reserved matter. They are a devolved matter. My hon. Friend asked the Minister to confirm whether he agrees that, as a matter of statutory interpretation, human rights are not reserved to the United Kingdom Parliament.

It must be recognised squarely that in terms of schedule 4, the Human Rights Act cannot be modified or repealed by the Scottish Parliament. The Scottish National party and the Scottish Government accept that. However, we argue, as my hon. Friend did, that because human rights are not reserved in terms of the Scotland Act, if the British Parliament wants to repeal the Human Rights Act and replace it with a British Bill of Rights, it will be legislating in the field of human rights, and under the Sewel convention it must seek the legislative consent of the Scottish Parliament. Hopefully, by the time we get to that stage, the Sewel convention will be on a statutory footing as proposed in clause 2 of the Scotland Bill.

I reiterate my hon. Friend’s question to the Minister: does he accept that for repeal of the Human Rights Act, and for repeal of anything in the Scotland Act, a legislative consent motion would be required from the Scottish Parliament? Also, does he appreciate that as recently as the end of 2014, more than 100 Members of the Scottish Parliament indicated that they supported the Human Rights Act? A cross-party majority was in support. Is he also aware that the First Minister of Scotland, Nicola Sturgeon, has made it very clear that her Government, which has a majority in the Scottish Parliament, would never support repeal? So does he accept that, with regard to the future framework for human rights not only in Scotland but across the UK, the British Government could not repeal the Human Rights Act and replace it with a British Bill of Rights without the consent of the Scottish Parliament and that that is extremely likely to be withheld? The third question that my hon. Friend posed was the question of whether the British Bill of Rights will apply to Scotland. If it is going to apply to Scotland, does the Minister accept that there would have to be a legislative consent motion?

The First Minister of Scotland has been keen to emphasise on several occasions that she wants to preserve the Human Rights Act for the whole of the United Kingdom, not just for Scotland. There is no question of the Scottish Government doing a deal whereby Scotland would get out of the repeal of the Human Rights Act and leave the rest of our partner nations in the United Kingdom swinging in the wind. My hon. Friend the Member for Rutherglen and Hamilton West (Margaret Ferrier) stressed the universality of human rights, and the First Minister of Scotland has argued that it is important they are kept for the whole of the United Kingdom, so it is not the intention of the Scottish National party or the Scottish Government to do any deal. We would like to be involved in the cross-party movement to keep human rights for the whole of the United Kingdom.

That feeds into another point made by both my hon. Friends. The repeal of the Human Rights Act would send out completely the wrong message to the world about the United Kingdom’s direction of travel on human rights. It is striking to look at the testimony of Hossam Bahgat, the director of the Egyptian Initiative for Personal Rights. He was involved in the Tahrir square uprising five years ago and said:

“The most important thing that the British can do to support human, rights in Egypt is to support human rights in the United Kingdom...It is significantly more difficult for us to fight for universal human rights in our country, if your country publicly walks away from the same universal rights.”

To his great credit, the former Attorney General, the right hon. and learned Member for Beaconsfield (Mr Grieve), made a similar point when he recently highlighted the fact that Russia is already using the UK’s position on human rights to delay implementing European Court judgments and that the UK is being cited by countries such as Venezuela as justification for ignoring obligations under the American convention on human rights.

When the right hon. and learned Gentleman spoke in Edinburgh last September, he described the ECHR as

“arguably the single most important legal and political instrument for promoting human rights on our planet.”

He has previously stated that if the UK is

“instrumental in damaging its effectiveness it will sit very strangely with our settled policy of promoting human rights globally.”

That is a voice from the Minister’s party supporting the notion that it would be unfortunate if Britain sent out the wrong message about our support for human rights.

[Mr Alistair Carmichael]

I very much agree with the hon. and learned Lady on the question of universality. When I went to Cameroon a few years ago to work on a Voluntary Service Overseas-funded project that provided legal aid to people who could not afford it, I was struck by the fact that when I went into lawyers’ offices and courts, there was the universal declaration of human rights. We always think of it as being quite high-flown and possibly even overblown, but they rely on it in courts of first instance. Does the hon. and learned Lady agree that the Human Rights Act need not be the last word in human rights? Legislation could be introduced in several areas to give protection that is more contemporarily relevant than that envisaged in the 1950s.

[Joanna Cherry]

I absolutely agree with the right hon. Gentleman. As my hon. Friend the Member for Dumfries and Galloway indicated, the Scottish Government are already attempting to hard-wire human rights into all their social policy—not only the human rights enshrined in the ECHR, but social and economic rights. For example, the Scottish Government have made it clear that when they have the additional powers they hope to get to develop a social security system for Scotland, respect for the dignity of the individual will be at the heart of the system. We are keen to move the human rights debate on in Scotland, which is why the Scottish Government brought in Scotland’s national action plan for human rights. When the Council of Europe’s Commissioner for Human Rights visited Scotland in January, he singled out the national action plan for support.

I totally agree with the right hon. Gentleman that socioeconomic rights are important. Many other countries in the world recognise that and have such rights in their written constitutions. The constitution of the new Republic of South Africa, which was drafted, at least in part, by one of the finest lawyers on the planet still living, Albie Sachs, recognises the importance of socioeconomic rights, which are embedded in it. Some of the Nordic states’ constitutions also embed socioeconomic rights. As my hon. Friend the Member for Dumfries and Galloway said, it is our hope that when we become independent we will have a constitutional convention to write a constitution for an independent Scotland. We will look at the models and examples of other forward-looking democracies—not only in the west, but including examples such as South Africa—and seek to write socioeconomic rights into our constitution.

There is universal recognition among all those who have spoken so far of the importance and universality of human rights. We are of one voice, across the SNP-Lib Dem divide, in saying that socioeconomic rights are important and that the rights in the ECHR are only a floor for human rights, not a ceiling. The right hon. Member for Orkney and Shetland (Mr Carmichael) expressed the hope that the currently proposed consultation might be brought forward and might look at socioeconomic rights. I am far less of an optimist than he is. All the noises I have heard coming from the Government Benches have suggested that it will be an exercise in reducing rather than bolstering human rights protections. Regardless of the purpose of the exercise, do the Government accept that human rights are devolved, not reserved, and that the legislative consent of the Scottish Parliament must be sought before there is any interference in the human rights regime that effects Scotland?

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[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.

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[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.

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[Richard Arkless]

The Minister says that the issues have been dealt with before. The question is simple: do the Government believe that human rights are reserved or devolved? He says that they have given the answer before. Where and when? We have never heard it.

[Joanna Cherry]

Tell us.

[Richard Arkless]

Tell us!

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[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)).