Tory human rights plan hits the constitutional quicksand

Scotland and Northern Ireland are not on board with scrapping the laws


Conservative plans to scrap the Human Rights Act could not apply to Scotland.

That was the verdict of a spokesperson at the Scotland Office in October 2014 following David Cameron’s speech to the Conservative conference calling for the Act to be repealed.

Under the terms of the Scotland Act 1998 which established the Scottish Parliament in its current format, the European Convention of Human Rights is enshrined in the devolution settlement. It concludes:

“A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights…”

Speaking to the Scotsman just after Cameron’s conference speech in 2014, a spokesperson for the Scotland Office said that human rights legislation is devolved to the Scottish Parliament because it was ‘built into the 1998 Scotland Act [and] cannot be removed [by Westminster].’

This view however has been contradicted by the new Scottish secretary David Mundell, who on Tuesday told BBC Radio Scotland that any changes to the Human Rights Act would apply north of the border as well. He concluded:

“New legislation replaces existing legislation and therefore the new act will apply in Scotland.”

Addressing the Scottish Parliament yesterday on the impact of the General Election result, Scotland’s first minister Nicola Sturgeon made clear that she would be opposing the proposal tooth and nail.

Responding to questioning from Scottish Labour’s deputy leader Kezia Dugdale, Ms Sturgeon explained:

“I welcome Kezia Dugdale’s comments on opposition to repeal of the Human Rights Act 1998. It is one example of, I hope, many in which Labour and the SNP, in that progressive alliance that I spoke about, can work together against some of the wrong-headed measures that are being proposed by the Conservative government.

“Any suggestion that we should move back from human rights protections is appalling and completely wrong. I say on behalf of the Scottish Government that we will do everything in our power to ensure that vital human rights protections remain undiminished in Scotland. I welcome the Scottish Labour Party’s support in that respect.”

Her comments came a day after Scotland’s cabinet secretary for social justice Alex Neil outlined his belief that the Conservative proposals would require legislative consent from Holyrood to apply to Scotland, and as such MSPs should make clear that ‘such consent will not be given’.

In Northern Ireland meanwhile, Sinn Fein’s president Gerry Adams has waded in on the argument.

Just days after a leading human rights body warned that repealing the Human Rights Act would unpick the Good Friday Agreement, Mr Adams attacked the move as a ‘scandalous attack’ and a ‘grievous breach of the Good Friday Agreement’. He called on the Irish prime minister to raise the matter with David Cameron.

In a not so subtle warning to the UK government about its plans, Ireland’s foreign minister Charlie Flanagan has argued that repealing the Human Rights Act  would be ‘a matter of some concern’.

Arguing that the protection of human rights, predicated on the European Convention, was ‘one of the key principles’ underpinning the Good Friday Agreement, Mr Flanagan continued:

“As a guarantor of the Good Friday agreement, the Irish government takes very seriously our responsibility to safeguard the agreement. The fundamental role of human rights in guaranteeing peace and stability in Northern Ireland must be fully respected.”

This comes as the Independent reports that David Cameron, with a majority of just 12, faces a backbench rebellion that could derail his plans. The paper quotes the former attorney general Dominic Grieve who called the plans ‘a recipe for chaos’. Meanwhile an unnamed former aide to new justice secretary Michael Gove is reported to have said there is now a less than 5 per cent chance of the plans going through.

Ed Jacobs is a contributing editor to Left Foot Forward. Follow him on Twitter

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