Union Jack, from Flickr, creative comms, Dave King

Union Jack, from Flickr, creative comms, Dave King

Nicola Sturgeon, the Scottish First Minister, yesterday said that it was ‘inconceivable’ that Holyrood would consent to Conservative plans to scrap the Human Rights Act.

This news comes after the justice secretary Michael Gove’s recent announcement about a long anticipated commitment to scrapping the Human Rights Act (HRA) and a plan to replace it with a British Bill of Rights (BBR). Sturgeon argues that this ‘commitment’ and the proposals which will follow in the next few months may be stopped in their tracks if Scotland doesn’t approve. Speaking at the Pearce Institute in Glasgow, she said: ‘Human rights itself is a devolved issue. That means that any attempt to amend the Human Rights Act is likely, in our view, to require the legislative consent of the Scottish Parliament.’

The reasons why Sturgeon is in favor of the Human Rights Act are clear. As a lawyer by training the First Minister of Scotland would be aware that the HRA’s scheme is a careful model that builds effective human rights protection into the UK system of government without upsetting existing British constitutional traditions. She was joined on stage yesterday by another lawyer and human rights campaigner, Shami Chakrabarti, who shared these sentiments and praised Ms Sturgeon’s defence of the Act.

There have been three reviews in to the efficacy of the HRA since its enactment. Each of these has acknowledged that the HRA’s scheme and scope works. Not only are the rights that it contains a restrained catalogue of human rights, the HRA’s scheme builds upon the Sovereignty of Parliament and prevents courts from striking down an Act of Parliament. It is a fundamentally conservative scheme.

While the Government yesterday acknowledged the need for a framework to protect human rights in the UK they responded to Sturgeon’s comments by saying that: ‘The Bill of Rights will reform and modernise our human rights legal framework and restore common sense to the application of human rights laws.’

The subject of  human rights has always attracted tension between politicians because it is an area that goes to the heart of democratic accountability. It is the fact that the UK is held to account before domestic and international courts that allows the British Government to speak out for the rights of others. This is both attractive and problematic for the Conservative party who argue that Parliamentary sovereignty should be paramount. Whether or not the Conservative party will be able to push through their proposals is yet to be seen but it is clear that Westminster will have a significant Scottish-shaped hurdle to get over if they still want to go ahead.

In an article in 2011, Nicolas Bratza, the President of the European Court of Human Rights, said that there should be healthy dialogue between the Strasbourg Court and the UK Supreme Court. This dialogue should assist in developing Strasbourg jurisprudence, but it does not and should not preclude UK common law from continuing to develop its own fundamental rights based on case law. Perhaps a similar dialogue may need to occur between the Conservative Government and the Scottish contingent in the Westminster Parliament?

The debate about how best human rights should be protected in this country will inevitably continue over the next few months. While the protection afforded to the Act by Sturgeon is being praised by human rights campaigners, it is perhaps wise to ask whether politics is the right forum in which to hold such discussions at all. The human rights barrister, Jonathan Cooper OBE, previously said in an article published in Counsel Magazine, that there is a danger in politicising how the UK protects human rights because we may end up with all sorts of unintended consequences. Perhaps this is something all politicians should consider – whatever side they are on.

Author: Alex Cisneros

Alex Cisneros is a barrister practising out of No5 Chambers. He specialises in public law

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