Repeal of the Human Rights Act: Evidence to the Scottish Parliament

Last week, the Campaign for Housing and Social Welfare Law, that LSA is a part of, gave evidence to the Scottish Parliament’s European and External Relations Committee on the UK Government’s plan to repeal the Human Rights Act. LSA’s Chief Executive, Paul Brown, represented the group at this evidence hearing that discussed both the constitutional challenges any such repeal may face, the media portrayal of the Human Rights Act, as well as how any change may effect people’s lives. A recording of the evidence hearing is available here (starting at the 1 hour 13 minute mark).

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This blog is summary of the written evidence that the Campaign for Housing and Social Welfare Law in November 2015. It covers the main points of the written evidence, which is available in its entirety here.

 

Not a day goes by where we are not involved in cases involving human rights. Our projects deal with cases relating to refugee women and children, patients unlawfully detained under mental health legislation, and utilising the Human Rights Act (‘HRA’) to protect people from evictions. It is clear from our work that the HRA has a dramatic effect protecting everyone in Scotland and the UK.

Last year the Scottish Parliament’s European & External Relations Committee’s call for evidence on the UK Government’s proposed repeal of the HRA and replacement with a British Bill of Rights (‘BBoR’). The Campaign for Housing and Social Welfare Law (“the Campaign”), that regularly meets in the offices of LSA and which we take an active role in, submitted written evidence last November.

In summary, the Campaign does not support the UK Government’s proposal in any respect. It is our belief that the UK greatly benefits from a sophisticated Human Rights regime that has achieved many successes and has great potential for the future. Alleged short falls are exaggerated and unfounded. The Campaign’s views on particular matters have been set out below:-

 

Codification

The Campaign believes any attempt to codify the broad principles of Human Rights law as they currently exist would put at extreme risk the existing protections. Considering the application of Human Rights Law in Scotland, any proposed Bill of Rights must respect the arrangements under the Scotland Act 1998 that affects the Scottish Ministers and Parliament in Holyrood. As the current system continues to work well, any change would lead to an enormous amount of unnecessary effort.

 

Respect for UK Parliamentary Sovereignty

Arguments that the sovereignty of the UK Parliament are not sufficiently respected are misinformed. Firstly, section 4 the HRA does not allow UK judges to strike out Westminster legislation, only declare it as incompatible with Human Rights. It is then for Parliament to amend (or not amend) any such legislation. Secondly, section 2 merely requires UK judges to “take into account” Strasbourg decisions, not bound or compelled. On a number of occasions UK judges have departed from Strasbourg rulings, particular when they believe such rulings do not respect the features of the UK legal system. Thirdly, section 3 requires UK courts to interpret legislation so that it is Human Rights compliant. However, where if the UK Parliament clearly legislates contrary to Human Rights or Strasbourg case-law, the UK courts are bound by Parliament by virtue of the principle of “Sovereignty of Parliament”. Therefore, the UK Parliament is in fact afforded a wide degree of respect when it comes to Human Rights.

The only area that binds the UK Government are judgments made against the UK by virtue of Article 46 of the ECHR. This continues to be an important international treaty obligation, and it is imperative that it remains so. If we are to value the application of Human Rights across the EU (if not globally), and where respect for Human Rights is weaker in other countries that make up the Council of Europe, it is necessary to have an effective enforcement mechanism on a pan-EU basis. Without this, Human Rights would not be worth the paper they are written on.

 

“Living Instrument” and “Mission Creep”

The ECHR is a “living instrument” and it is important that it is. With the document originally being drafted in the 1940s and 50s, it was heavily influenced by UK common law principles that can be traced back to the Magna Carta. However, current issues access to abortion, LGBTI rights and corporal punishment were not even contemplated at the time of the ECHR drafting. As a constitutional document that requires to enshrine relevant and modern fundamental rights, social attitudes across Europe, and developing Human Rights awareness, the ECHR must evolve over time.

Claims of “mission creep” fail to consider that ultimately the application of Human Rights law in the UK is under the supervision of the UK Supreme Court, and not Strasbourg. The UK Supreme Court has never been in any doubt that it is indeed Supreme, and Human Rights in this country have developed in accordance with our traditions and its decisions.

 

Practical Impact of UK Government Proposals

Although proposals are still vague with regards to what a BBoR might effect, discussions to remove immigration policy, criminal law or decisions by public authorities from the scope of Human Rights Law would be deplorable. The broad application of Human Rights Law, as well as protecting minorities in society that fall within such categories, is one of the most important aspects of Human Rights. It also begs the question, that if the BBoR does in fact replicate our Human Rights law, then why do we require a change at all?

 

The Impact on Scotland

The Campaign notes this is both a very complicated point, and one that has attracted much discussion regarding the changing devolution settlements, and the Sewel Convention (the requirement that the UK Parliament obtains consent from the Scottish Parliament before it legislates on a devolved matter). Further, it is important to note that the HRA and the ECHR are hardwired into the Scotland Act 1998 and of fundamental importance to the operation of the devolved Parliament and ministers.

It is the Campaign’s view that although amending the HRA would not engage the Sewel Convention by virtue of it being a reserved matter, the creation of a BBoR would presumably effect Human Rights in the Scotland. This latter matter is not reserved, it falls under the competence of the Scottish Parliament and therefore a Sewel Convention would be necessary.

Furthermore, any change in the UK’s relationship with the Council of Europe would require a Sewel Convention. The UK Government have proposed either removing the application of article 46 of the ECHR to the UK, or withdrawing from the jurisdiction of the Strasbourg Court or from the Council of Europe.  This raises important questions about the continuing application of the Scotland Act and the consequences for Human Rights protection in Scotland. It is the Campaign’s view that it would therefore necessarily invoke the Sewel Convention.

 

Conclusions

The Campaign is committed to the notion set out in the preamble of the European Convention that fundamental freedoms are the foundations of justice and peace. The enactment of this in UK law, the HRA, has been essential for the development of a Human Rights culture in the UK, influencing not only court decisions but public authority action as well. Without the HRA, UK society would suffer as a whole.

This observance of Human Rights, and participation in the European process, is admired and respected internationally. This cannot be understated. The UK has a long history of upholding fundamental rights and liberties. Misleading and flawed arguments that the ECHR reduces the sovereignty of Parliament risks supporting similar rhetoric in countries where Human Rights protections are less stable.

At a time of growing austerity, the refugee crisis, and developing security concerns, Human Rights are now more important than ever. Any weakening of our commitment to these fundamental principles weakens the protections we have at a time when we may need them the most. We should not take these rights for granted.

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