Colm O’Cinneide: Human Rights, Devolution and the Constrained Authority of the Westminster Parliament

a_ocinneideThe debate over the place of human rights in UK constitutional law continues to run and run. The Home Secretary, Theresa May MP, has recently criticised the manner in which UK judges are interpreting the right to family life protected by Article 8 of the ECHR. A private members bill tabled by Tory MP Charlie Elphicke, the Human Rights Act 1998 (Repeal and Substitution) Bill, which would de-incorporate Convention rights and replace them with diluted ‘British’ replacements, received its Second Reading on the 1st March 2013. Furthermore, at the time of writing, the Mail on Sunday is quoting Theresa May again to the effect that the next Tory election manifesto will include a commitment to withdrawing from the jurisdiction of the European Court of Human Rights, de-incorporating Convention rights, or some such equivalent measure.

As a consequence, it may be a good time to highlight the fact that changing existing UK human rights law is not an easy task. Even if one leaves to one side the external diplomatic factors that may limit the UK’s freedom of action in this field, there are internal legal and political factors in play which make tampering with the HRA a more problematic project than the media headlines suggest. In particular, complex issues arise with respect to devolution and the various ways in which Convention rights have become embedded in the constitutional framework of the UK.

The HRA itself is a piece of primary legislation which applies to all public authorities throughout the UK and can be amended or repealed by the Westminster Parliament. The UK’s international relationship with the Council of Europe and the European Court of Human Rights also comes squarely within the sphere of reserved powers. However, human rights are not per se a reserved function, and there exists a separate and distinct ‘devolution dimension’ to the UK system of rights protection. The devolved legislatures and executives in Northern Ireland, Scotland and Wales are required to comply with ‘Convention rights’ by virtue of specific provisions set out in the devolution statues (S. 6(2)(c) and s. 24(1)(a) of the Northern Ireland Act 1998; s. 29(2)(d) and s. 57(2) of the Scotland Act 1998; s. 81(1) and s. 94(6)(c) of the Government of Wales Act 2006). They can also take measures to give further effect to the UK’s international human rights obligations when acting within the scope of their powers, including but not confined to those that arise under the ECHR (para. 3(c) of Sch. 2 of the Northern Ireland Act 1998; para. 7(2) of Schedule 5 of the Scotland Act 1998; and in general Schedule 5 of the Government of Wales Act 2006).

The existence of this ‘devolution dimension’ imposes some constraints on the freedom of the Westminster Parliament to reconstruct UK human rights law as it sees fit. For example, any change to the current requirement that the Northern Irish, Scottish and Welsh legislatures must comply with Convention rights would affect the scope of their devolved powers: as a result, under existing constitutional arrangements, it would appear to trigger the Sewel Convention, meaning that Westminster would ‘normally’ have to seek the consent of the devolved legislatures before it could legislate in respect of human rights law as it applies in respect of devolved matters. Furthermore, because the devolved legislatures are able to take steps to extend human rights protection, they have the power to minimise the impact of any reduction of rights protection brought about by Westminster legislation within the sphere of devolved functions.

Thus, for example, if the Westminster Parliament wished to root out the ECHR rights from UK law and replace them with home-grown ‘British’ variants through a new Bill of Rights, it would either have to leave intact the provisions of the devolution legislation that require the Northern Irish, Scottish and Welsh legislatures to comply with Convention rights, or else seek the consent of the three legislatures to the removal from Convention rights from the devolution framework. Furthermore, even if such consent was forthcoming, or the Westminster Parliament chose simply to disregard the Sewel Convention, the devolved legislatures might subsequently be able to restore much of the status quo within the sphere of devolved functions. For example, if Westminster were to repeal the HRA, the Scottish Parliament would appear to have the power to introduce a ‘Scottish HRA’ or an equivalent measure in respect of devolved matters, which could provide an equivalent or even greater level of rights protection within its sphere of application than currently available under the HRA.[1]

Furthermore, the political context is very different in the devolved regions when it comes to human rights. The recent report of the Commission on a Bill of Rights noted that ‘there was little, if any, criticism of the Strasbourg Court, of the European label of the Convention, or of human rights generally in Scotland, Wales or Northern Ireland’ (p. 163), while Philippe Sands and Helena Kennedy in their minority report suggest that ‘existing arrangements under the Human Rights Act and the European Convention on Human Rights are not merely tolerated but strongly supported’ in the devolved regions (p. 266). In addition, as Christine Bell has discussed on this blog, Northern Ireland, Scotland and Wales are in the course of developing their own unique approaches to human rights. This makes it unlikely that the devolved legislatures will be willing to consent to any Westminster legislation which sought to make significant changes to how human rights are protected within the sphere of devolved functions. Indeed, in giving evidence to the Commission on a Bill of Rights, the Scottish Government made it clear that it considered that the Westminster Parliament lacked the legitimacy to determine the scope of human rights protection in Scotland (see p. 166 of the Commission’s report).

Additional issues arise in respect of Northern Ireland. The Belfast Agreement specifically required that the ‘UK government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention’ (Rights, Safeguards and Equality of Opportunity, para. 2.). In addition, as Brice Dickson and Colin Harvey have recently discussed on this blog, a separate Bill of Rights process is underway in Northern Ireland, whose roots also lie in the provisions of the Belfast Agreement. As a result, any attempt by Westminster to alter or amend existing human rights law which applies to Northern Ireland (whether relating to devolved functions or to reserved functions such as national security) is likely to be viewed as an unwanted interference with the fragile constitutional settlement that has been constructed there on the foundations laid down by the Belfast Agreement.

Of course, the Westminster Parliament is free to alter or amend existing UK human rights law as it applies to the sphere of reserved functions, as recognised by Anthony Speaight QC in a thoughtful paper on devolution attached to the final report of the Commission on a Bill of Rights. However, even if Westminster were only to legislate in this field in respect of reserved functions (and exempted Northern Ireland from the scope of application of the proposed new law), devolution would still have the potential to create troubling inconsistencies in UK human rights law.

For example, if Westminster were to de-incorporate Convention rights and replace the HRA with a new ‘British’ Bill of Rights containing home-grown rights standards that applied in the sphere of reserved functions, Convention rights would still be applicable within the sphere of devolved functions. This could generate some complex legal issues where devolved functions in areas such as criminal justice and social welfare overlap with reserved powers such as immigration control. (These complexities would obviously be exacerbated if the entirety of Northern Irish law, including law relating to reserved functions, was exempted from the scope of the new ‘Bill of Rights’.) It would also mean that Convention rights would continue to be applied by UK courts in the context of the devolved regions, ensuring that the Strasbourg jurisprudence would continue to exert some direct influence on the development of UK law.

Alternatively, Westminster could simply choose to ignore the devolved legislatures and push through a new human rights law. However, this could generate a constitutional crisis if one or more of the devolved legislatures and/or governments were to cry foul, and it would in all probability breach the terms of the Sewel Convention. In any case, as already mentioned, the devolved legislatures might be able to limit the effects of such a measure by enacting their own devolved version of the HRA.

In general, the ‘devolution dimension’ cannot be readily ignored or sidelined in the ongoing human rights debate, as the Commission on a Bill of Rights recognised in its final report. The current parameters of the devolution settlement impose substantial legal and political constraints upon the power of the Westminster Parliament to alter existing UK human rights law. This will not come as a surprise to legal experts who are well aware of the limits to parliamentary sovereignty, as analysed by Mark Elliott, Nick Barber and others. However, discussion of these constraints have been largely absent from parliamentary or media debates on the HRA and ECHR. In particular, there has been little recognition that Convention rights have become woven into the fabric of the unwritten UK constitution in multiple different ways, which may prove very difficult to unravel.

Philippe Sands and Helena Kennedy have suggested that certain of their colleagues on the Bill of Rights Commission viewed the constraints imposed by devolution on the freedom of action of the Westminster Parliament as a case of the ‘tail wagging the dog’. There is a danger that a similar attitude may blind politicians in Westminster to the reality that the UK constitutional system is now complex, variegated and pluralist in nature. Tampering with the status of Convention rights in UK law may appease some Europhobic voters, but it risks open up some serious constitutional fractures.

Colm O’Cinneide is a Reader in Law at University College London. 

Suggested citation: C. O’Cinneide ‘Human Rights, Devolution and the Constrained Authority of the Westminster Parliament’ UK Const. L. Blog (4th March 2013) (available at http://ukconstitutionallaw.org)

 


[1] See the research paper written by Anthony Speaight QC and attached to the report of the Commission on a Bill of Rights, ‘Devolution Options’, pp. 243-256, especially at p. 250.

4 Comments

Filed under Devolution, Human rights, Northern Ireland

4 responses to “Colm O’Cinneide: Human Rights, Devolution and the Constrained Authority of the Westminster Parliament

  1. Waldron-fan

    I see the point here, but I am not sure it really bears the weight put on it. Devolution cannot be ignored, and should not be side-lined, but surely there is a real risk of the tail wagging the dog. If any one or more of the devolved administrations want to go a different way, then surely the point of devolution is to facilitate that – not to prevent Westminster taking UK/England in their preferred direction.

    Yes the private members bill is oversimplified – but where is the surprise in that.

    Yes it is complex to alter the complex web of the British constitution. But those were exactly the arguments we heard against introducing the HRA in the first place, or against Lords reform or the Supreme Court, or any other development in the constitution – all of which can be pejoratively labelled “tampering” when the speaker is against them.

    Yes Strasbourg jurisprudence might continue to exert influence in devolved cases, some of which would be decided by “UK” courts. But that is surely a very far cry from saying judges would feel they could still apply s3 HRA interpretation principles to a case involving legislation in a non-devolved area where s3 no longer applied.

    Yes we have devolution, and yes at some point supporters of a “British” Bill of Rights (in the newly full-blooded form, with repeal of HRA and withdrawal from ECHR) will have to recognise that that means Scotland, NI & Wales may choose to go a different route (at least they will have been asked this time), and yes that might mean the new system had to be England-&-UK-only (but you can be sure any UK government strong enough to do this would want to call the bluff of the devolved administrations first), and yes that might be complex to work under devolution. But is that such a big deal?

    As the piece points out, the human rights position is already very different as between Westminster, Scotland & Wales, and NI. These differences are surely what devolution is for in the first place. If the new system applies to England and to reserved-UK matters, and the devolved administrations chose to have local versions of HRA in their spheres, then does that really make life intolerably complicated compared to the existing complications of devolution, or is it just one degree more of complexity in an already fiendish system?

    Perhaps a Tory-Unionist government might have to scale down its rhetoric about British/UK rights, and in the end might fight shy of deepening difference between the countries of the union, but that is a political issue rather than a legal obstacle.

    What seems more interesting is that the “British Bill of Rights” lobby seem finally to be recognising that the idea was always a nonsense if we were to remain signed up to ECHR – but it seems they do have a consistent position now that they are talking about leaving ECHR as well as de-incorporating. Then surely the interesting question is where that would leave a pro-ECHR devolved administration. If UK leaves ECHR then, short of independence, that means Scotland, Wales & NI come out too. But they could adopt a version of HRA-style incorporated rights in their areas (and they could even say courts must follow ECtHR jurisprudence). The key difference from now would be that cases could only be taken as far as Supreme Court and not to Strasbourg, but that does not seem particularly significant (even the British Bill of Rights lobby seem to be cottoning on to the idea that s3 HRA is what matters, rather than the nationality or location of the judges applying it). SC-HL-JCPC has long been used to applying different legal principles to cases from different jurisdictions, and I cannot see that being asked to apply Strasbourg case-law and s3-HRA-interpretation to some cases would lead them to applying that approach in other cases where it no longer belonged.

    I hold out little hope, but it would be interesting if the block-positions on this issue could be broken down – Tory/UKIP judge-bashing xenophobes on one side and on the other everyone else feeling they have to back the current HRA-ECHR system. What about a genuine debate (without jingoism, but also without assuming lawyers know best) about whether the HRA model has worked and whether it has exposed problems with the ECHR model?
    Has the HRA model succeeded in its neat compromise of introducing an interpretation duty, while retaining the ability of Parliament to pass Acts as it sees fit?
    Is democracy promoted or eroded by the ECHR model of handing vague (and almost impossible to amend) provisions to judges and giving them unchecked power to fill out the detail and extend the meaning as they see fit (which is not a question of their nationality or competence, but of democratic principle)?
    Can better models be devised where the rights are more detailed, and can be amended (at least at their margins or in the detail), and where the scope of the interpretation duty is more clearly set out and constrained?
    Could such a model be adopted without leaving us a pariah and opening the way for other governments to produce their own bad faith versions (and anyway would that be so much worse than now, eg ifTurkey openly made special provision freezing Greek property rights in north Cyprus, instead of the current spectacle of the Council constantly ducking out of enforcing judgments against Turkey)?

    Surely that would be more sensible than leaving the reform field to the europhobes.

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