David Scott: Miller, Sewel, and the Human Rights Act

david-scottMany celebrated Miller’s outcome, imposing a Parliamentary “brake” (however brief) on the triggering of Article 50. But the Supreme Court’s unanimous agreement on the devolution issues [129–151 for the majority; agreement in the dissents at 242, 243, and 282] may have weakened opposition to the Government’s “other” crusade—against the European Court of Human Rights.

Devolution and the UK Bill of Rights

The Scottish, Welsh, and Northern Irish governments have been united in their criticism of the proposals for human rights reform. In June 2015, for example, the First Ministers of Scotland and Wales issued a joint statement on the subject, making clear that both governments were “fundamentally opposed to this regressive move”. Legal challenges from Northern Ireland have also been threatened, as recently as the tail end of last year, on the grounds that reform would breach the Good Friday Agreement.

There was hope (see here, here, here, and here) that this opposition could prevent the lowering of human rights standards by the Bill of Rights, at least as far as the Convention applies to the devolved authorities. Devolution arrangements essentially create two domestic human rights regimes: the UK-wide duties on public authorities under the Human Rights Act, and the more specific human rights duties—tied to the Convention itself, not the Human Rights Act—under the devolution statutes (see s29(2)(d) of the Scotland Act 1998; s6(2)(c) of the Northern Ireland Act 1998; and s81(1) of the Government of Wales Act 2006).

Should the Government want to apply the Bill of Rights to devolved legislatures, their legislative competence would be altered, triggering a requirement for legislative consent under the Sewel Convention. This, it had been hoped, would give the devolved legislatures an effective “veto” on reform, leading to suggestions that the UK Government would avoid the issue entirely by limiting the UK Bill of Rights to reserved matters only, allowing the devolved “status quo” to continue (see comments of the Scottish Human Rights Commissioner here). Not a perfect solution, but at least a partial mitigation of the Bill of Rights’ effects.

Miller and Sewel

The Supreme Court’s unanimous agreement on the devolutionary issues in Miller has rather thrown a spanner in the works. The Court agreed that the alteration of EU constraints would alter the competence of devolved institutions and that such alterations must be enacted by statute, not by prerogative powers [130–132]. But the Sewel Convention provides no defence against such alterations. Even with its explicit incorporation into statute, Parliament intended only to enshrine a political convention, unenforceable before the courts [148–149]. Accordingly, Parliament has no legal requirement to consult or secure the agreement of the devolved legislatures prior to enacting such measures.

So while Miller may have created a (small) Parliamentary hurdle for leaving the EU, it appears to have rather simplified the process for future human rights reform. Provided the UK Bill of Rights passes through Parliament, explicitly “breaking the link” with Strasbourg in devolved as well as reserved matters, the devolved legislatures would be unable to stop it.

Nonetheless, as the Court was right to point out, the Sewel Convention retains great political significance. The European Court of Human Rights enjoys far greater support outside of England. Stripping away its protections without the approval of those legislatures—particularly in Northern Ireland, which has long called for its own Bill of Rights—would be a political minefield. The Prime Minister acknowledged at the start of her term that there was insufficient support for leaving the Convention altogether, and plans for the UK Bill of Rights appear to have been put on hold until post-Brexit. But some type of reform looks likely to reappear in the Conservative’s 2020 manifesto.

Perhaps the UK can survive Brexit intact. But can it survive another?

David Scott is a Master’s student at the University of Helsinki and a research assistant at the University of Zurich.

(Suggested citation: D. Scott, ‘Miller, Sewel, and the Human Rights Act’, U.K. Const. L. Blog (8th Feb 2017) (available at https://ukconstitutionallaw.org/))