Civil society has fought back, dubbing this disastrous legislation the ‘Rights Removal Bill’, and setting out clearly that – despite any spin from Downing Street – this has nothing to do with tinkering around the edges of rights protections and everything to do with removing them entirely.
The Human Rights Act is to be repealed in its entirety and the Scotland Act will be simultaneously amended.
It should come as no surprise that the politicians who could be held accountable by the HRA are the same people who want to scrap it. What we’ve seen from this Westminster government is an ongoing raid on ordinary people’s rights, designed to wipe out accountability and create a chilling effect on freedom of expression – the likes of which many British people probably thought they would never experience.
The highly contested Nationality and Borders Act 2022 and the Police, Crime, Sentencing and Courts Act 2022 attempted to smash a wrecking ball through the right to protest in England and Wales and the right to seek asylum in the UK.
Until now, Scotland has avoided bearing the brunt of the Westminster rights raid – but the Bill laid before the Commons this week has untold implications for Holyrood.
For the whole of the UK, this Bill will do away with numerous basic rights protections including the obligation on public bodies – from local authorities to the police and the state itself – to uphold the European Convention on Human Rights (ECHR), where the UK has introduced contradictory primary legislation.
It will make it more difficult for someone to bring a human rights claim by introducing an additional “permission threshold obligating the claimant to show they have faced a ‘significant disadvantage’ caused by the abuse of their rights”.
The Bill proposes to give the UK the ability to override rulings of the European Court of Human Rights (ECtHR) – which has been vital to ordinary people seeking justice.
It will prevent courts from finding any new “positive obligations”, which oblige state authorities to take active steps to safeguard convention rights, and will limit the use of existing ones.
The European court’s rulings have set numerous legal precedents in the UK and Scotland, including on processes following deaths at the hands of the state; corporal punishment in schools, and the rights of victims and witnesses.
The convention, as well as being incorporated into Scots law by the HRA, is also protected by the Scotland Act 1998 – the law which sets out Scotland’s devolution arrangements. It is tightly interwoven into the workings of the Scottish Parliament and has been since Holyrood came into being over 20 years ago.
The Scotland Act gives the convention enhanced effect in Scotland as Acts of the Scottish Parliament which are incompatible with the ECHR rights will be invalid and can be struck down by the courts.
The Act has impacted on Scottish law and policy in other ways. As a result of Scottish courts engagement with the convention and the jurisprudence of the European court, important aspects of Scots law have been led and influenced by the convention’s provisions and the HRA has led to a more rights-based approach in Scottish case law.
Given the independence of the Scottish legal system and the inability of English legislators to interfere with that, how will the human rights be interpreted going forward? What does this mean for our existing case law? How can the UK Government legislate to repeal the HRA without creating a domino effect which will tug at the foundations of devolution and the Scottish Parliament?
These are questions that simply haven’t been posed, less answered. The recent Ministry of Justice consultation on the UK Government’s proposals gave scant regard to the separate legal system in Scotland, asking only one vague question about reforms reflecting the different legal traditions across the UK.
Scottish civil society responded en masse to the consultation but we have no confidence that the issues raised with the proposals and their impact on devolution and the Scottish courts have been properly considered.
Despite being backed by Westminster’s Joint Committee on Human Rights, calls by 150 civil society organisations for pre-legislative scrutiny of the Bill have been rejected, leaving many, including Conservative MPs to ask what the government is so afraid of?
In short, we have no confidence that any of these issues will be properly considered during the process of this Bill.
That is why Amnesty, alongside other leading rights organisations in Scotland, has written to the Scottish Parliament’s Constitution, External Affairs and Culture Committee urging members to establish an urgent inquiry into the impact these proposals will have on Scotland.
Scotland – while no means a nirvana for human rights – is on an entirely different trajectory. The Scottish Government intends to lay a very different human rights Bill before Holyrood soon, proposing to incorporate further international rights treaties into Scots law.
The move towards a rights-based approach in Scotland is gaining momentum while Westminster moves backwards. How these laws and legislators will interact with each other going forward is difficult to fathom – but the Scottish Parliament must take a proactive role in answering these questions.
Naomi McAuliffe is the Scotland programme director at Amnesty International UK