Iain Jamieson: Effect of the Bill of Rights upon the meaning of Convention Rights under the Scotland Act

The relationship between the Scotland Act 1998 (“the SA”), Convention rights and the Human Rights Act 1998 (“the HRA”) is well known.

Convention rights are embedded in the Scottish constitution. The Scottish Parliament cannot legislate, and Scottish Ministers cannot act, in any way which is incompatible with those rights (SA ss. 29(2)(d), 53,54,57(2)). 

The SA is largely independent of the HRA. 

Questions whether provisions in an Act of the Scottish Parliament are incompatible, or Scottish Ministers have acted incompatibly, with Convention rights are usually determined by proceedings under the SA but they can also be determined under the HRA. (Somerville v The Scottish Ministers [2007] UKHL 44: and my article ‘Remedies under the Scotland Act: Implications of Somerville’ 2007 SLT, 40, 289-294). 

There are now similar provisions in both Acts regarding, title and interest, time limits and damages (SA ss. 100(1),(3), (3B) and HRA ss 7(1) (5) and 8). 

The HRA is also used as a dictionary for certain expressions in the SA, as Lord Hope put it in Somerville (para 22). In particular, the expression “Convention rights” is defined in section 126(1) of the SA as having “the same meaning” as in the HRA.

Human rights as such are not listed as a reserved matter under the SA. Paragraph 7(2) of Part 1 of Schedule 5 specifically provides that the reservation of “international relations” does not reserve the observing and implementing of the Human Rights Convention which is defined as the ECHR and its protocols. However, the Scottish Parliament is prevented from making its own provision for giving effect to that Convention by section 29(2)(c) and paragraph 1(2)(f) of Schedule 4 which lists the HRA as one of the protected enactments which the Scottish Parliament cannot modify. The effect of any such provision would be to modify the HRA.

The interpretation of Convention rights

The Bill of Rights (“the Bill”) repeals, and replaces, the HRA. Does this change in any way the provisions in the SA relating to the Convention rights? 

Prima facie the Bill will make no difference at all. All that will happen is that references to the HRA and its provisions in the SA are replaced by references to the Bill and to the corresponding provisions of the Bill (see Schedule 5, paras 3-6). 

There is no material difference between the provisions referred to, except the provision concerning the limit on the amount of damages which can be awarded in respect of an act which is incompatible with any of the Convention rights. The Bill replaces the present limit on damages in section 8(3) and (4) of the HRA with a more restrictive limit in clause 18 and amends SA s 100(3) accordingly (Schedule 5, para 4(b)).

The Bill amends the definition of Convention rights in section 126(1) to substitute, for the reference to the HRA, a reference to the Bill. Section 2 of the Bill defines Convention rights as those set in Schedule 1 to the Bill and they are exactly the same as those defined in section 1 of the HRA and set out in Schedule 1 to that Act.

However, although the list of Convention rights remains the same as under the HRA, their meaning is different.   When section 126(1) of the SA refers to “Convention rights” as having “the same meaning” as in the HRA or in the Bill, this refers not just to the list of those rights set out in Schedule 1 but also imports how they fall to be interpreted under that Act or under the Bill. This is clear from the use of the words “the same meaning” and also because, without such a construction, there would be nothing to indicate to the courts how it was intended that they should interpret what is meant by those rights.

Under the HRA, section 2 requires the courts, when determining any question in connection with a Convention right, to take account of Strasbourg jurisprudence.  In other words, Convention rights fall to be interpreted in a similar way as the European Court of Human Rights (“ECrtHR”) would do so.

Under the Bill, however, Convention rights will fall to be interpreted in a significantly different way.  

Clause 1(2) of the Bill sets the tone by providing that the Bill 

“clarifies and re-balances the relationship between courts in the UK, the [ECrtHR] and Parliament by ensuring that (a) it is the Supreme Court (and not the [ECrtHR]) that determines the meaning and effect of the Convention rights for the purposes of domestic law (see section 3(1))”

Clause 3(1) provides that:  “The Supreme Court is the ultimate judicial authority on questions arising under domestic law in connection with the Convention rights”

There is no equivalent in the Bill to section 2 of HRA, On the contrary, clause 3(2) requires the courts, when determining any question in connection with a Convention right, to:

“(a) have particular regard to the text of the Convention right and, in interpreting the text, may have regard to the preparatory work of the Convention….”

and clause 3(3) underlines the importance of the original text of the Convention by providing that a court

“(a) may not adopt an interpretation of the right which expands the protection conferred by the right unless the court has no reasonable doubt that the [ECrtHR] would adopt that interpretation if the case were before it [and]

(b)….may adopt an interpretation of the right that diverges from Strasbourg jurisprudence.”

It is not even clear whether, or to what extent, a court may have regard to such jurisprudence when interpreting a Convention right. This is because Clause 1(3)(a) “[affirms]” that such jurisprudence “[is] not part of domestic law.”

 Prior to the HRA, Lord Ross took the view in Kaur v Lord Advocate  that Scottish courts were

 “not entitled to have regard to the [ECHR] either as an interpretative aid or otherwise….unless and until its provisions have been incorporated or given effect to in legislation.” 

In view of the express denial in clause 1(3)(a) that ECrtHR jurisprudence is part of domestic law, a similar view may well be taken with regard to such jurisprudence. At least, there will be some uncertainty until it is resolved by judicial decision.

The courts are also required, when interpreting Convention rights, to comply with clauses 4 to 8. Those clauses make provision as to how Convention rights are to be interpreted in various circumstances. For example, clause 5 prevents a court from adopting an interpretation of a Convention right 

“that would require a public authority to comply with a positive obligation.”

It is therefore clear that it is intended that Convention rights will fall to be interpreted under the Bill in a completely different, and more restrictive, way than under the HRA or by the ECrtHR. 

Consequences for devolved competence

This will mean that, when a court is determining under the SA whether a provision in an ASP is incompatible, or Scottish Ministers have acted incompatibly with a Convention right, a court could find that, when they interpret that right in accordance with the Bill, there has been no incompatibility whereas there would have been if the right had been interpreted under the HRA.

This, in turn, would have the effect of altering by increasing, in various ways, the legislative and executive competence of the Scottish Parliament and Scottish Ministers. This will trigger the Sewel convention.

The Sewel Convention

The Sewel convention as expressed in section 28(8) of the SA provides that the UK Parliament will not normally legislate “with regard to devolved matters” without the consent of the Scottish Parliament. However, since 1999, it has been recognised by both the Scottish and the UK Governments that the convention applies in practice not only (a) to such provisions but also (b) to provisions in such Bills which alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers.

Professor McHarg stated in her evidence to the Joint Committee on Human Rights on 11 May 2022: 

“There is no doubt that because of the way the Human Rights Act and the devolution statutes interact, any changes to the Human Rights Act will have knock-on consequences for the scope of devolved competence. I would be very confident that that second limb of the Sewel convention is engaged. The first limb is perhaps more arguable, and it would depend on exactly what is proposed in the end. (Q.58)

In their letter to the Deputy Prime Minister on 30 June 2022, the Joint Committee on Human Rights stated that they believed that both limbs of the convention “may be engaged by the Bill” but gave no reasons for their belief.

This also appears to be the view taken by the UK Government in the Explanatory Notes to the Bill. Paragraphs 37 and 38 sets out both limbs of the convention. Annex A to those Notes indicates, in summary and without giving any reasons, the various provisions in the Bill which require a Sewel or legislative consent motion in the Scottish Parliament. 

The second limb of the convention is clearly engaged by those provisions indicated in Annex A which are related to how Convention rights are to be interpreted, such as clause 3 (interpretation of Convention rights) and clauses 4-8. 

There may be some difficulty in understanding why exactly the first limb of the convention is triggered by the other provisions in the Bill, which are indicated in Annex A as requiring a Sewel motion, such as those concerned with proceedings under the Bill. It may be that some relate to devolved matters which the Scottish Parliament could have legislated upon were it not for the fact that that Parliament is prevented by the fact that the HRA is a protected enactment from making any provision to give effect to the Convention. Does the fact that the HRA is to be repealed by the Bill alter this position? It is difficult to understand why it should do so as the Bill will immediately become a protected enactment upon the repeal of the HRA. Any such argument is therefore open to considerable doubt.

Be that as it may, there is no doubt that the consent of the Scottish Parliament is clearly required under the second limb of the Convention for those provisions in the Bill which change how Convention rights are to be interpreted in the SA.Accordingly, the UK Government should seek, and obtain, the consent of the Scottish Parliament to the Bill.

It may be unlikely that such consent will be given and, in that event, if the UK Government proceed to enact the Bill without such consent, this will further  exacerbate relations between the UK and Scottish Governments at a time when the Union is under stress with the prospect of a second Scottish referendum on independence.

I would like to thank Professor McHarg for her assistance in commenting upon an earlier version.

Iain Jamieson, retired Government lawyer in the UK and Scottish Governments.

(Suggested citation: I. Jamieson, ‘Effect of the Bill of Rights upon the meaning of Convention Rights under the Scotland Act’, U.K. Const. L. Blog (5th July 2022) (available at https://ukconstitutionallaw.org/))