By Aileen McHarg
Professor of Public Law and Human Rights, Durham Law School
The Interaction of the Human Rights Act and the Devolution Statutes
Human rights regimes in the devolved territories are more complex than in England. While devolved public authorities (including the devolved governments) and devolved legislation are subject to the Human Rights Act 1998 (HRA), Convention rights are also – and more strongly – incorporated via the devolution statutes. Devolved legislation is “not law” so far as it breaches Convention rights, and devolved ministers cannot act incompatibly with Convention rights even if (in Scotland and Northern Ireland, though not in Wales) they are compelled to do so by UK legislation. For these purposes, the HRA acts as a “dictionary” for the devolution statutes. Convention rights have the same meaning as they do under the HRA, which refers not only to the specific rights incorporated by the HRA, but also the interpretive rules it lays down.
The HRA thus provides for a minimum floor of rights across the UK – the HRA is a protected (or in Northern Ireland, entrenched) statute under the devolution legislation, which means that the devolved legislatures cannot repeal or amend it. However, it does not act as a ceiling. “Human rights” as a policy area is not reserved to the UK Parliament; hence the devolved legislatures may legislate to enhance human rights protection in their territories, including by implementing international human rights treaties, albeit only within the limits of devolved competence more generally.
In fact, the Belfast/Good Friday Agreement explicitly envisaged the adoption of a bespoke Bill of Rights for Northern Ireland, although this has not yet come to fruition. The Scottish and Welsh Parliaments have also already taken steps to incorporate the United Nations Convention on the Rights of the Child and both the Scottish and Welsh Governments have ambitious plans to incorporate a range of other human rights treaties.
The Impact of the Bill of Rights Bill on Devolution: Political Issues
Although repeal of the HRA and its replacement by the Bill of Rights Bill (BoRB) is itself a reserved matter, the legislative consent (or Sewel) convention is nevertheless engaged by the BoRB, due to the interaction between the HRA and the devolution statutes, as the Explanatory Notes to the Bill accept. As a general rule, references in the devolution statutes to the HRA will be replaced by references to the BoRB. The constitutional arm of the Sewel convention is thus engaged because the changes to the meaning to be given to Convention Rights under the BoRB will have implications for the scope of devolved legislative and executive competences. Some provisions of the BoRB also engage the policy arm of the convention – such as clause 40, which allows the Secretary of State to preserve s3 HRA statutory interpretations, including (it appears) within devolved areas.
Because the BoRB weakens the meaning to be given to Convention rights (other than freedom of speech), its effect will be to widen the scope of devolved competence – although the devolved legislatures will not benefit from the extreme deference that is to be accorded to the UK Parliament (under clause 7) in assessing proportionality questions. Nevertheless, the Scottish and Welsh Governments have made it clear that they are strongly opposed to any weakening of rights protection in their territories. Repeal of the HRA also raises particular issues for Northern Ireland, where the Belfast/Good Friday Agreement includes a commitment to incorporation of the ECHR into Northern Ireland law.
On the assumption (based on recent experience) that the BoRB will not be significantly amended in response to the views of the devolved legislatures, we can expect the devolved governments to consider what options are available to them to counteract the effects of the Bill. One possibility might be to require devolved ministers to continue to report on the compatibility of legislative proposals with European Court of Human Rights jurisprudence, so as to head off potential Strasbourg challenges.
Another is to incorporate the International Covenant on Civil and Political Rights, which contains many of the same rights as the ECHR. This is not precluded by protection/entrenchment of the HRA/BoRB, which applies only to the domestic treatment of “Convention rights” as such, not to the substance of the rights protected by the Convention. But, thanks to the Supreme Court’s decision in the UNCRC Reference, the effect of any such incorporation would be strictly limited in scope, and it would also significantly complicate the human rights landscape in the devolved territories, with apparently similar rights applying in different contexts and with different legal effects.
The Impact of the Bill of Rights Bill on Devolution: Technical Problems
If enacted in its current form, the BoRB will also create several other technical difficulties and anomalies.
Most seriously, it could open up differences in the treatment of the Convention compatibility of devolved legislation under the BoRB and the devolution statutes. For instance, there are interpretive duties in the devolution statutes which instruct the courts where possible to read legislation as being within devolved competence. These duties are narrower in scope than s.3 HRA, and so rarely relied on at the moment, but they will become more important given the lack of any duty to try to achieve Convention-compatible interpretations under the BoRB. This creates a risk that devolved legislation could be read as being compatible with Convention rights for the purposes of the devolution statutes, yet incompatible with the Convention under the BoRB, and (as subordinate legislation for the purposes of the BoRB, like in the HRA) therefore liable to be quashed or subject to a declaration of incompatibility.
It is similarly possible that, thanks to the enhanced protection given to freedom of speech under the BoRB, legislation which has already been enacted by the devolved legislatures compatibly with Convention rights as they are currently understood might become newly open to challenge under the BoRB, but not (on the assumption that changes to devolved competence will not have retrospective effect) under the devolution statutes.
There are other anomalies too. The new permission test in clause 15 will not apply to judicial review cases brought in Scotland or Northern Ireland, which could create a risk of forum shopping in respect of decisions applying throughout the UK. There is also a significant omission from the Bill in the failure to amend the compatibility issues procedure created by the Scotland Act 2012, which allows issues of compliance with Convention rights arising in Scottish criminal cases to be referred to the Supreme Court.
The Impact Assessment accompanying the BoRB states that the UK Government’s “intention is to undertake human rights reform that respects the diverse legal traditions across the UK” and that it “will consider any particular sensitivities in the devolved nations” (paras 44 and 45). In fact, the content of the Bill, and the process though which it was developed, suggest that the impact on devolution was an afterthought, and a poorly understood one at that.