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Can Sturgeon Save the Human Rights Act and Prevent ‘Brexit’?

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About The Author

Josh Dowdall (Writer)

Josh is a final year law student at Durham University. His primary interests lie in private law, public law and EU Constitutional law. Outside of academics, Josh is involved in a number of pro bono projects, and is passionate about diversity within the legal profession.

Image © Nicolas Raymond

A strong executive who can use parliamentary sovereignty to pass its legislative programme relatively easily is a hallmark of the UK’s constitution. The 2015 General Election returned a majority Conservative government for the first time since John Major left office in 1997. As the campaigns fade into distant memory, it is time to consider the implications of the result. Notably, the Tory manifesto includes pledges to scrap the Human Rights Act 1998 and to hold a referendum on the UK’s membership of the European Union. The fact of the Conservative majority would logically suggest that David Cameron will face little Parliamentary opposition to either repealing the Act or pulling the UK out of the EU in the event of a ‘no’ vote in the referendum. However, this conclusion simply ignores the practical reality of the devolution arrangements in the UK. I have argued in previous Keep Calm Talk Law articles (‘Death of the Unitary State’: part one and part two) that the UK is moving towards a quasi-federal constitutional settlement. This article discusses the draft Scotland Bill, and how Nicola Sturgeon may be able to save the Human Rights Act and prevent ‘Brexit’, concluding that the untested ability of the devolved administration to block these constitutional reforms provides significant further evidence of the federalisation of the UK.

The political context

For the purposes of my argument, it is necessary to outline the basic political context behind the Conservative’s pledge to repeal the Human Rights Act and to hold a referendum on EU membership. The following analysis assumes that there is some substance to the political context, and that it is not simply the Government pandering to rebellious Conservative backbenchers or the UKIP threat in order to retain its short term and slender majority (although, I have my doubts!).

The Tories have arguably had an uneasy relationship with human rights legislation ever since the European Court of Human rights held that the UK’s blanket ban on prisoner voting disproportionately violated article 3 of protocol 1 of the European Convention on Human Rights (Hirst v UK). Many of the party’s senior figures have repeatedly denounced both the Convention and the Human Rights Act, which transposes the Convention into domestic law. For example, the Home Secretary, Theresa May, has chastised the Act for allegedly preventing the deportation of a Bolivian immigrant because he had bought a cat (the actual judgment referred to the fact the buying of a cat demonstrated he had strength and quality of family life). The media has also zealously contributed to unjust criticism of the Act on the basis of a few difficult or contentious judgments. Many of these criticisms have stemmed from the use of the Human Rights Act to prevent the deportation of suspected terrorists – most notably the recent decision to allow a suspected terrorist known only as ‘ZZ’ to remain in the UK.

This discontent has manifested itself in a pledge to repeal the Human Rights Act and replace it with a British Bill of Rights in the Conservative’s manifesto. Although the failure to include a British Bill of Rights in the Queen’s speech has been interpreted by some commentators as evidence that the Government is reconsidering its plans, the Government continues to insist that it intends to press on with its manifesto commitment to repeal the Act. For a much more detailed discussion of the implications of repealing the Human Rights Act, which is outside of the scope of my argument, see Francesca Norris’ article: ‘Scrapping the Human Rights Act: What Do We Stand to Lose?

In a similar vein the Conservative party repeatedly exhibits dissatisfaction and open hostility towards the European Union, and the UK’s place within it. In recent days 50 Conservative MPs have formed the Conservatives for Britain group. The group states that it will vote to leave the EU unless fundamental changes to the UK’s relationship with the EU are achieved. The primary demand of the group is that Westminster must reclaim sovereignty over EU law. In addition to bombastic statements about reclaiming sovereignty, usually in the context of immigration and benefits, for example – the political right of the party is also fundamentally opposed to the concept of ‘ever closer union’ (Costa v ENEL). The sovereignty clause in the European Union Act 2011 has done little to soothe these criticisms and a European Union (Referendum) Bill 2015-16 has been introduced to Parliament in accordance with the Conservative’s manifesto pledge.

It is my contention that repealing the Human Rights Act and withdrawing from the EU would be a disaster – legally, politically, and economically. It would send a clear signal that the UK refuses to wake up to the reality of both transnational constitutionalism and the vertical distribution of power to supranational institutions, which arguably characterise our globalised world. Pulling up the drawbridge is not a convincing solution to legitimate concerns about the allocation of scarce resources in times of economic austerity. It is not in the long-term national interest to renegade on our human rights commitments or walk away from a single market of over 800 million people. This article will now consider the role the devolved administrations might play in helping to save the Human Rights Act and prevent ‘Brexit’.

Sturgeon’s role

It is in the nationalist First Minister of Scotland, who still harbours dreams of Scottish Independence and a rejection of Westminster authority, that we arguably find an unlikely champion of what I believe to be the British national interest. Nicola Sturgeon has repeatedly stated that Scotland will oppose repeal of the Human Rights Act, as well as opposing a UK exit from the EU against the will of the Scottish people. Her comments have also been echoed by the First Minister of Wales, Carwyn Jones. Yet what can the leaders of the devolved administrations do in order to block this constitutional change? Especially when we consider that one of the legislative aims of the devolution acts was to preserve the sovereignty of the Westminster Parliament (Scotland Act 1998, s 28(7)).

Francesca Norris correctly observes that under the Scotland Act, acts of the Scottish Parliament must comply with EU law, the Human Rights Act, and the ECHR. This allows the courts to strike down legislation if it is incompatible. In addition, it must also be noted that human rights have been devolved to the Scottish Parliament. Although the Scotland Act ‘does not affect the ability of the Westminster Parliament to make law for Scotland’, any student of the UK constitution will know that the legal constitution is tempered by the political constitution. In this context, regard must be had to the Sewel convention. The Sewel convention is a constitutional convention under which the UK Parliament has agreed not to legislate in areas in which the devolved administrations have competence. Given the strength of opposition to repeal of the Human Rights Act and exit from the EU within the Scottish National Party (as reflected in its manifesto) and the wider Scottish Parliament, Sturgeon is unlikely to sign a Sewel motion. The implication being that if the UK Government tried to repeal the Human Rights Act or withdraw from the EU without the consent of the Scottish people its actions would be unconstitutional, even if not illegal per se.

Significantly, however, Sturgeon’s hand has been further strengthened by clause 2 of the proposed Scotland Bill 2015-16, which places the Sewel convention on a statutory footing. Clause 2 adds to s 28 of the Scotland Act, which will, if passed, read as follows:

(7) – This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

(8) - But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.

On the one hand, it is possible to suggest that the addition will allow the Scottish Parliament to effectively veto a repeal of the Act on the grounds that Scotland’s separate legal jurisdiction would make it impossible for Westminster to act without the consent of Holyrood. The same may also apply to an act which withdraws the UK from the EU. On the other hand, some might argue that clause 2 of the Scotland Bill does not have this effect because the use of the word ‘normally’ suggests Westminster retains residual power to legislate for Scotland in areas which have been devolved. Certainly this was the intention behind the Scotland Act and the system of ‘triple locks’, but it is submitted that this suggestion ignores the reality of the political constitution. As Bogdanor concludes, ‘power devolved is power transferred, and it is not possible to recover that power except under pathological circumstances.’ Given the SNP majority in the Scottish Parliament and its success in the general election, I am sceptical as to whether our great union could survive if the government attempted to legislate against the will of the Scottish people.

It has also been noted elsewhere that if Scotland were to veto the HRA a possible solution would be to allow Scotland to retain the HRA and enact an ‘English Bill of Rights’. Allowing the HRA to continue in force in the Scottish legal system would have the advantage of appeasing the Scottish Parliament. However I am sceptical whether this solution would be desirable. Creating two different statutory human rights regimes in force across the UK would create legal disharmony. At worst, it could create conflict between the two regimes if the level of protection were different in the two jurisdictions. Should the HRA continue in Scotland, the UK government might once again be unable to deport a suspected terrorist, resident in Scotland, under article 8. The Conservatives have made no secret of their disdain for article 8. Assuming the government would seek to dilute the protection given to article 8 under a new English Bill of Rights, it is conceivable that the UK government would be able to successfully deport that same suspected terrorist if he resided in England.  

Unfortunately for the Scottish Parliament the European Communities Act 1972 could not be repealed in England and left in force in Scotland – the implication being that Scotland would remain a member of the EU. In any federal order the competence to conduct foreign affairs and conclude treaties belongs to the federal legislature. Thus, we might provisionally conclude that quasi-federalism in the UK constitution would prevent Scotland alone from remaining within the EU. Even if Parliamentary sovereignty could be used to transfer to the Scottish Parliament the competence to enter into treaties, Scotland would still be unable to remain a member of the EU. This is because article 49 of the Lisbon Treaty, which governs accession rules, makes it clear only states can accede to the Union. So long as Scotland remains part of the UK it is not a state under international law, so it cannot unilaterally fulfil the conditions of membership.

Further evidence of the federalisation of the UK

Quite clearly the provisional conclusion that the Scottish Parliament may be able to veto a repeal of the Human Rights Act and prevent ‘Brexit’ poses difficulties for the orthodox view of the UK constitution. British constitutionalism, as traditionally expounded by A V Dicey, rests upon the sovereignty of the Westminster Parliament. Parliamentary sovereignty means that Parliament has the legal competence to enact legislation on any topic – no matter how abhorrent – free from the threat of having that legislation struck down by the courts. This distinguishes the UK constitution from other constitutional systems in which judges are empowered to invalidate legislation on the grounds that the legislature does not have the constitutional competence to enact it. The most notable example of strong judicial review is found in the US (Marbury v Madison). Lord Hoffmann’s famous dicta recognises this: ‘Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights’ (R v Secretary of State, ex parte Simms). By implication, therefore, it should be theoretically impossible for the Scottish Parliament to stop Cameron from using his Commons majority to repeal the Human Rights Act or to take the UK out of the EU.

However, it is possible to question whether the Diceyan view of the UK constitution remains accurate in the twenty first century. Constitutional change in the last few decades has seen power vertically transferred away from Westminster towards the EU and horizontally transferred to the devolved administrations. As such there are now multiple loci of governmental power within the British constitutional order – language more consistent with federalism than unitarianism. As I have argued elsewhere, it is my opinion that unitarianism is dead within the UK’s constitution. I believe that it has been replaced with a form of quasi-federalism. That the Scottish Parliament may be able to veto repeal of the Human Rights Act or prevent ‘Brexit’ suggests that the UK’s devolution arrangements have created something akin to a system of dual federalism. Dual federalism means that either the state or the national government has the competence to legislate within a given policy field. One loci of constitutional power occupies the whole of the policy field. Dual federalism was the system of federal thought which prevailed in American federalism until Roosevelt’s New Deal legislation in the 1930s (see: Hammer v Dagenhart; US v Knight). German federalism still adheres to the concept of dual federalism because either the Lander (state) or the national government has competence to legislate (articles 70-72 German Basic Law). Applying this to the British constitution would mean that either Westminster or Holyrood has the competence to act within a given policy field. The real possibility of the Scottish Parliament being able to veto the repeal of the Human Rights Act or prevent Westminster from pulling the UK out of the EU if the majority of the Scottish people vote ‘yes’ in the referendum serves to reinforce the argument that the UK has indeed moved towards a quasi-federal constitutional settlement.

Over the course of the next Parliament the Conservative government are planning two significant constitutional changes. It is my opinion that repealing the Human Rights Act and leaving the EU are ill-conceived responses to short term political pressures, rather than in the long term national interest. The UK’s devolution arrangements give Nicola Sturgeon a strong hand to play, which I believe provides significant further evidence of the federalisation of the UK. Although I find it somewhat ironic that Sturgeon finds herself in a position to defend the British national interest, it is to her who I now call upon to save the Human Rights Act and prevent ‘Brexit’.

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Tagged: Brexit, Constitution, European Union, Human Rights

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