Tory attack on human rights will help drive up support for Scottish independence

No-one should be in any doubt that they intend to achieve a seismic shift in the way in which human rights are enforced across the UK. The contents of the bill also mean major changes to the devolved settlement and will necessitate the amendment of the Scotland Act.

The Tory manifesto promised simply to “update” the HRA, but this bill goes a lot further. While it purports to protect the same convention rights as the HRA (with one or two cosmetic extras), it directs the domestic courts to a much narrower interpretation of those rights and limits the enforceability and universality of those rights by introducing a new requirement for permission to proceed with a claim and by creating categories of individuals who are exempt from some of the Convention rights or for whom damages for breach can be curtailed.

Here is one particularly shocking example. The bill purports to strengthen the right to free speech (already protected under Article 10 of the ECHR) by mandating that domestic courts give “great weight” to the right but then it exempts criminal proceedings from this duty, thereby insulating its anti-protest laws in the Police Act and Public Order Bill from challenge by those penalised or silenced by the draconian measures in that legislation.

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So, as leading human rights lawyer Adam Wagner neatly puts it – free speech is protected unless you are charged with a criminal offence for expressing yourself. If nothing else, this should cause any democrat to shudder. It also exposes the Tories’ utter hypocrisy.

The irony is that by staying in the ECHR but restricting the ability of people in the UK to bring a case in the domestic courts when their Convention rights are breached, the UK Government is likely to be found in breach of the Convention by the European Court of Human Rights in Strasbourg far more frequently than is currently the case. But perhaps this is what the Government wants, so it can continue to rile up its base by railing against “foreign courts”.

It’s my privilege at this anxious time for human rights across the UK to have taken over as chair of the Joint Committee on Human Rights while Harriet Harman steps aside to chair the Privileges Committee inquiry about whether the Prime Minister knowingly misled Parliament over partygate. We will be carrying out in-depth scrutiny of the bill, and we started our preparations to do so at our weekly meeting the same day the bill was introduced.

We don’t think this is evidence-based policy making. We have already published two unanimous cross-party reports, which concluded that the Human Rights Act is working well and does not need to be repealed or replaced. That was also the conclusion of an independent review of the HRA, which the Government commissioned last year and then ignored.

When a JCHR delegation visited Strasbourg last week, we were told that UK Government ministers have given repeated assurances that the UK will remain in the ECHR, and I was pleased to hear the Secretary of State reiterate that assurance in Parliament this week. However, the Prime Minister made some veiled threats about leaving last week after Strasbourg’s Rwanda ruling, so I am not betting on the British Government keeping its word. Frankly, who would?

In any event, even if the UK stays in the ECHR, it needs to do so with integrity. The UK cannot pick and choose which Convention rights it wants to observe or for whom it wants to observe them. This bill is a calculated attempt to disengage from the ECHR by watering down the rights it ensures, limiting the ability for them to be enforced and permitting the domestic courts of the UK to ignore judgments, decisions, and interim measures of the European Court of Human Rights.

This last measure is in clear violation of Article 34 of the Convention, and therefore a breach of the UK’s international treaty obligations. But then we know that the current UK Government is happy to breach other international treaties, including one they signed just recently – the Withdrawal Agreement and the Northern Ireland Protocol – and another which is a guarantee of peace on the island of Ireland – the Good Friday Agreement (GFA). Incidentally, the Bill of Rights may also breach the GFA.

Another issue on the international front is that the UK’s disengagement from the ECHR risks giving encouragement to populist governments in eastern Europe which have scant regard for human rights or, indeed, the rule of law.

If the above is not enough to make you angry and alarmed, then the implications for devolution should be. The UK Government’s own explanatory notes to the bill accept that large parts of it will require legislative consent motions for Scotland, Wales and Northern Ireland.

At present, ECHR rights apply in Scotland both via the HRA and the Scotland Act. “Convention rights” in the Scotland Act are defined by reference to the HRA so that’s going to need amended for a start. But it goes further than that.

When Professor Aileen McHarg gave evidence to the JCHR on what might occur if the HRA was “updated”, she said changing the rules on how the courts interpret convention rights would change the ways in which those rights limit the actions of the Scottish Government and the competence of Scottish legislation.

Changes to the remedies available for breach of Convention rights could have knock-on effects for legal action taken under the Scotland Act.

The Scottish Human Rights Commission warned us that proposals to create a right to a jury trial, a permission stage hurdle for human rights claims and reduction of damages for the conduct of the claimant would impact the administration of justice, which is a devolved matter.

The commission also expressed extreme concern about the impact of proposals curtailing human rights protections on access to justice.

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The JCHR concluded that reform of the HRA really should not go ahead without devolved consent.

The problem is, of course, that we know the Scottish Parliament will never consent to this but that the UK Government will proceed anyway. The Sewel Convention is as dead as a dodo.

On the upside, at a time when preparations for a second independence referendum are under way such a root-and-branch attack on a fundamental aspect of the Scotland Act – which has widespread support in Scotland across party lines and in civic society – can only aid the case for independence. It also reminds us of the importance of embedding the ECHR in the constitution of an independent Scotland.

It’s really no accident that this bill was published on the eve of the sixth anniversary of the Brexit referendum. Distancing the UK from the ECHR is simply the next step in the “take back control” agenda. However, what is important to appreciate is that is not the parliaments of the UK that are taking back control, far less the people, but the UK Government, which is anxious to avoid scrutiny and being held to account and therefore on a mission to curtail the ability of the courts and indeed our parliaments to do that.