Human Rights Framework: Scotland

Richard Arkless Excerpts

Wednesday 2nd March 2016 Westminster Hall

[Richard Arkless (Dumfries and Galloway) (SNP)]

I beg to move,

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

The framework for human rights in Scotland is reaching a critical point, and determining its future has therefore become an issue that my colleagues and I have been attempting to bring before the Attorney General and the Secretary of State for Justice for quite some time. We believe that any future framework currently rests on a constitutional precipice, one that requires more substance from the Government than we have received up to now. I personally stated my concerns to the Attorney General and the Secretary of State on numerous occasions and in many forms—written questions, oral questions and through my duties on the Select Committee on Justice. My colleagues and I are yet to receive answers containing any kind of substance. For that reason, I am delighted to secure this Westminster Hall debate.

Our position, and the crux of this debate, is predicated on a sound legal assertion that human rights are devolved to Scotland, and not something on which this place can legislate for Scotland. The legal basis for that assertion is the Scotland Act 1998, which is in effect the Scottish Parliament’s constitution. We argue that it is as close to a written constitution as Scotland can acquire at present.

I will take this opportunity to explain exactly why, in legal terms, we believe that human rights are devolved to Scotland. Before I do that, I ask the Minister in his response to save us from the message repeated ad nauseam that he believes in human rights but that he just has a problem with their interpretation by the European Courts. We understand that point. I do not seek a debate on the rights and wrongs of human rights constituted here or in Europe; I want a debate surrounding the legalities of any action this Government could take on human rights and how that affects Scotland. If he fails to give those answers in clear terms, I will write to allow him an opportunity to consider his response further so that the issue of human rights in Scotland can be clarified and this damaging uncertainty on our citizens’ protection can end.

I will outline the legal basis for my argument. The Scotland Act does not specify which powers are devolved to Scotland; that is simply not how our constitutional settlement works. Schedule 5 to the Act actually lists the powers reserved to the Westminster Parliament, with the rest—de facto—being devolved to Scotland. So, for any matter to be reserved to the UK, it must—simply must—be listed within schedule 5 to the Act.

I certainly hope that the Minster is aware that human rights are not listed in any form within schedule 5 to the Act, meaning that they are—as a matter of fact and of constitutional law—devolved in their entirety to Scotland. I also assume that he is acutely aware that any attempt by this place to legislate on schedule 5 will require—again, as a matter of constitutional law—the explicit consent of the Scottish Parliament, through a legislative consent motion under the Sewel convention, and that convention has arguably been strengthened by the Scotland Bill that is making its way through this place.

Consequently, my next request of the Minister is this: can he please confirm, in clear terms, whether the UK Government agree with this analysis? It is essential that we put this matter to bed, once and for all, so that we all understand that human rights are indeed devolved to Scotland.

The UK Government have various proposals—mooted proposals—on the table. One of those is the potential withdrawal from the European convention on human rights. The rights contained within the ECHR are enshrined in the Scotland Act, in section 57, meaning that the Scottish Parliament cannot do anything contrary to convention rights contained within the ECHR, essentially enshrining those rights in the Scotland Act. Section 57 of the Act combines with schedule 5 to the Act to mean that no UK Government can remove section 57, meaning that the ECHR—even if the UK removes itself from its effect—will always apply to devolved issues in Scotland.

So my next question to the Minister is this: do he and the UK Government accept that even if they withdraw from the ECHR, they cannot remove section 57 from the Scotland Act, meaning that the ECHR will continue to have an effect on devolved matters?

I am very proud of the UK’s role in the creation of the ECHR and we should never forget the reason it was established in the first place—to prevent the atrocities of 1914-18 and 1939-45 from ever happening again. In my view, we fragment the ECHR at our peril; it sets out minimum standards. So I often ponder why we would even moot removing ourselves from those standards, unless—in effect—we wanted to dilute them.

The repeal of the Human Rights Act 1998 has often been mooted by the Government. Schedule 4 to the Scotland Act contains a list of Acts that the Scottish Parliament is deemed not capable of repealing or amending. It includes, most obviously and in my opinion regrettably, the Act of Union. The Human Rights Act 1998 is also listed in schedule 4 to the Scotland Act, and as a measure of comfort—or, indeed, otherwise—to the Government, I can assure the Minister that Scotland will continue to comply with schedule 4, as she has absolutely no plans to repeal the Human Rights Act or indeed the Act of Union. We understand that it would be ultra vires to do so.

If we combine schedule 4 to the Scotland Act with schedule 5, it is clear that the UK Government cannot repeal the Human Rights Act from effect in Scotland. If the UK Government did so, they would require a legislative consent motion from the Scottish Parliament, and I do not think that any Scottish Government of any party of any colour would agree to that. Nevertheless, if the Human Rights Act is considered capable of being repealed in Scotland by Westminster, the Scottish Parliament could easily legislate to enact our own Human Rights Act, which I stress would not be a desirable outcome, as we could not insist that any new Act passed in Holyrood could cover reserved matters. The Human Rights Act provides important protection to Scottish citizens in relation to the laws passed on reserved matters in this place.

It is also worth pointing out that the Human Rights Act merely ensures that the convention rights are applied by the UK courts. Perhaps that is why it attracted cross-party support in the 1990s; it was hardly controversial then, and in my view it remains uncontroversial in Scotland.

This Government have not only mooted repeal of the Human Rights Act and withdrawal from the ECHR but they have made clear their ambition for a British Bill of Rights. Although I accept that nothing of that kind has been published yet, a British Bill of Rights was a manifesto pledge and we expect it to come to the Floor of the House at some point during this Parliament. So my next question to the Minister is this, and it is a question that my party has asked many times since May: will any proposed British Bill of Rights apply to Scotland? The name would suggest that it would be intended to cover Scotland. However, our position—founded on schedule 5 to the Scotland Act—is that, as a matter of constitutional law, the UK Government cannot impose a British Bill of Rights on Scotland without a legislative consent motion under the Sewel convention, which we believe would be withheld.

Hopefully I have made it clear that, in our view, human rights are devolved to Scotland. Of course, the Scottish Parliament could legislate for a Scottish Bill of Rights, but it has absolutely no plans to do so. As yet, we have no idea what a British Bill of Rights would contain, but no one can seriously believe that this UK Government would take the opportunity within that process to strengthen our citizens’ protections.

The protections of the ECHR and the Human Rights Act are hugely important to our citizens: the right to life; the right not to be enslaved; the right to liberty and security of the person; the right to a fair trial; and the right to marry, to name but a few. As Lord Bingham memorably said in 2009:

“Which of these rights…would we wish to discard? Are any of them trivial, superfluous, unnecessary?”

We say that none of them are. We view the convention not as a ceiling but as a baseline—a minimum. We should be building on these rights and not diluting them. Indeed, Scotland can go further if she so wishes.

Repeal of, or withdrawal from, the ECHR would not strike a blow to lawyers, criminals or ambulance chasers; it would strike a blow to the poor, the vulnerable and the dispossessed. Scotland wants to increase our citizens’ protections. We want to put human rights at the heart of our domestic policy, as we pledged to do in our national action plan on human rights, which the Scottish National party Government launched a couple of years ago. For example, our dementia strategy in Scotland is based on agreed rights for patients, including the right to have access to treatment, and the right to have dignity and respect. We see this process as the way forward—strengthening our citizens’ rights, because we are here as lawmakers essentially to protect the citizens who put us here.

My view is that we would look rather insular to our partners in the wider world if we repealed or withdrew from the ECHR. When most countries in Europe have adopted the ECHR, what message would it send out to the world if we withdrew from it or repealed it, and diluted our citizens’ protections? It would be a sad day indeed for the UK’s reputation abroad.

I look forward to the sovereign people of Scotland coming together to draft a written constitution for Scotland, enshrining these rights forever in a future independent Scotland.

--- Later in debate ---

[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.

[Richard Arkless]

The right hon. Gentleman is putting a typically articulate view. What is his view on the potential legalities and problems that the UK Government might have in either an imposition of the British Bill of Rights, repeal of the Human Rights Act, or withdrawal from the ECHR? That is what I would like the debate to focus on.

[Mr Carmichael]

To take each point in turn, the imposition of a British Bill of Rights would require an Act of Parliament. If that were to extend and build on convention rights, and if it were not in contravention or conflict with convention rights, I would see no difficulty with that. If we were to seek to withdraw from the convention, that would bring with it enormous problems. It would bring the political problems that I have already touched on and would put us in the company of nations that, frankly, I do not want to find myself with. Beyond that, it would put us in breach of treaty obligations, because the convention rights are built into the Good Friday agreement, which, above all else, is a treaty between ourselves and Ireland. It would also throw our own constitutional structure into disarray, because the Human Rights Act is hardwired into the devolution settlement in Scotland, Wales and Northern Ireland. Again, this is one of those things that was probably not given consideration when the Conservatives set up their commission 10 years ago. That probably explains the fact that this seems to have landed in a pile of things in the Ministry labelled “a bit too difficult to deal with; we’ll maybe look at it next month”.

[Richard Arkless]

I thank the right hon. Gentleman for his answer. He makes the position clear from a UK point of view, but I am interested in his view on whether a potential imposition of a British Bill of Rights would require a legislative consent motion from the Scottish Parliament and whether, in his view, that consent is likely to be given by any party of any colour or any Government in Scotland?

[Mr Carmichael]

We would have to see what the terms of the Bill were before deciding whether it required legislative consent. There are a lot of social and economic rights where the Bill would of course cut across devolved areas and would need a legislative consent motion. Employment rights, for example, are clearly reserved. We would need to see what the terms were. Like all such changes—if I can expand the thought for a second—these things are based on building consensus before introducing a Bill, so that everybody knows exactly what it will cover. I am talking about my fantasy Bill of Rights and the things I would like to have in it, which are not reflected much in a great deal of what we have heard from the thinking of the Government. However, I am ever the optimist, so we do not know what we might we get from them.

If we were to get a Bill of Rights that built on the convention rights, did not interfere with them and left us still a party to the European convention, I think that would be well received in Scotland. I would be disappointed to think that, just because such a Bill had been initiated here in Westminster, it would not be accepted by people in Scotland. The protection of human rights has been reserved broadly since the days of devolution, and people in Scotland would still respect that, having voted to remain part of the United Kingdom.

I shall be interested to hear what the Minister has to say. The last time we went round this course in Westminster Hall, he assured us that we would be hearing more. We have not heard quite as much as I had hoped we would; we have heard just as much as I thought we might. We shall wait to hear what he has to say. I hope that at some point we will get the answers to how the Government are going to get out of the hole they have been digging for themselves, in terms of the constitutional difficulties that any repeal of the Human Rights Act would bring.

--- Later in debate ---

[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.

--- Later in debate ---

[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!

[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.