THE European Court of Human Rights and the Convention on Human Rights could play a vital part in Scotland’s post-Brexit position and Scottish and Catalan independence, according to a former Labour first minister.
Speaking exclusively to The National, Henry McLeish said neither institution had played “centre stage” in events surrounding Brexit.
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He said Scotland voted to stay in the UK in 2014 and, two years later, to stay in Europe – despite the two going hand in hand, or as McLeish puts it, “buy one get one free”.
“In 2016 we voted to stay in the EU and whilst the Westminster government has paraded its constitutional authority we haven’t really had it couched in terms of human rights within the context of the convention,” he said.
“These are serious issues that should be taken up because what we’re trying to establish here is that since the referendum in 2014 through to 2016 the Westminster government ... have bullied [devolved] governments and individuals into submission.
“As a consequence the real legal implications of what is happening haven’t been fully exposed.”
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McLeish said a written question in the European Parliament last November expressed EU support for the Spanish government’s decision to impose direct rule in Catalonia, but the question added: “However, Spain’s suspension of Catalonia’s autonomy is not supported by the European Court of Human Rights, whose rulings the EU institutions are bound by Treaty to abide by.
The European Court of Human Rights in Strasbourg
“The European Court of Human Rights considers that it is legitimate for a region of a member state to secede, even if the country’s constitution does not provide for that possibility.”
It said to succeed, secession was subject to two conditions – use of democratic means, so no violence – and the societal model must be democratic. Catalonia fulfilled both conditions.
Four months later, European Parliament president Jean-Claude Juncker, responded: “Beyond the purely legal aspects of this matter, the commission believes that these are times for unity and stability, not divisiveness and fragmentation.”
McLeish said it was an important exchange: “This is a new avenue to be opened up because you cannot have important – in Europe sub-national governments, here we call them nations – autonomous regions like Catalonia and Scotland being treated by both the Westminster government and the EU Commission in such an intolerable way.
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“You get to the point where human and political rights have to be protected by someone and some institutions and it seems to me that a logical place to further explore is the question of the Strasbourg court, the convention and the procedure which are talking about political rights but also human rights.
“It’s not just a partisan political matter, this is an issue about the constitutional integrity of Scotland post-devolution and if the human rights door is also to be slammed in our face this would be a really bad day for democracy ... It would prove that... no matter what happens, Westminster keeps control over everything.”
The former FM, who now lectures on European law and other topics, added: “Scotland should not be party to clearing up the mess of this Conservative government and we should be fighting for legitimate rights to be upheld, human rights to be supported and applauded and at the end of the day assert our political rights which in the context of Westminster.
“We have to start posing some serious questions about what status devolved entities in the UK have ... at the end of the day there are many unanswered questions that this government is sweeping under the carpet in a very contemptuous and arrogant way.”
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