History may record that Britain finally died the day the UK Government decided to rip the European Convention on Human Rights from the heart of Scotland’s devolution settlement.
The leader of the group which drew up the Convention, in 1950, was a Scottish lawyer, Sir David Maxwell-Fyfe. As a prosecutor at the Nuremberg Trials, David had seen first-hand how international justice could be effectively applied to support universal rights for individuals. He guided the draft, which has influenced the understanding of human rights throughout Europe ever since.
At one time, this Convention would have been regarded as the bedrock of British values. But now the Government in Westminster seeks to cross out the bits it doesn’t like. It has declared its intention to remove these from the Scotland Act without the consent of the Scottish Parliament.
Perhaps history will record that the values enshrined in the European Convention on Human Rights turned out to be Scottish values and that English values are rather different.
Fundamental disregard for the devolution settlement
The Convention was used to halt a flight deporting refugees against their will to Rwanda, and now the UK Government intends to excise sections from British law. The changes it intends to make include removing the right to trial by jury - for indidviduals the Government doesn’t like.
The Bill makes clear that the UK Government intends to amend the Scotland Act of 1998 by replacing all references to the Convention with the UK Government’s own Bill - that will clearly have to take place without the consent of the Scottish Parliament. That shows a fundamental disregard for the principle that the devolution settlement would be respected, and should not be changed by Westminster against the will of Holyrood.
The UK Government has decided not to submit its Bill for pre-legislative scrutiny by the House of Commons or the Scottish Parliament. The UK Government has made it clear it doesn't recognize any sovereignty for Holyrood so it doesn't matter if the Scottish people and their representatives consent or not.
Those who voted No in 2014 believing assurances by Unionist parties that the devolution settlement would be respected have every right to feel betrayed.
The referendum for the Scottish Parliament had overwhelming support
The battle for Home Rule had been raging for a century or more when, in 1979, Scotland voted in favor of a Scottish Assembly. Despite the fact that the margin for Yes was similar to Brexit, Scotland didn’t get its own Parliament because a clause had been inserted by the then Labour government that said 40% of the electorate had to vote ‘yes’ in order to succeed.
So throughout the subsequent 18 years of Conservative rule, Scotland’s governance was left entirely in the hands of Westminster. Most of the time, the ruling party didn’t have enough Scottish MPs to fill the Grand Committee so it was packed with English MPs from the Shires who knew little and cared less about Scottish affairs.
Scotland’s industries, many of which had been thriving in the post-war years, were decimated. Workers were let down by a complacent, London-based managerial elite and didn't have the government backing other small countries had. Economically, socially and culturally, Scotland struggled, feeling its own powerlessness and lack of ability to influence Westminster’s policies.
In 1997, the Labour government was swept into power. It was led by several prominent Scots, (including Donald Dewar) who had promised to introduce - finally - Home Rule for Scotland. The referendum of 1997 was greeted with an overwhelming yes - 75% of the vote.
The Scotland Act of 1998 was based on the shared values of the Convention
The Scotland Act of 1998 was supposed to be the bedrock of a new relationship within the UK. Woven into it was the European Convention of Human Rights, representing a framework of shared values on which to build a strong democratic Union.
That dream died with Brexit. The UK Government removed Scotland from the European Union against its will, without consent or consultation. Since then it has taken every opportunity to undermine the devolution settlement, repatriating powers to itself with a series of Acts starting with the Internal Markets Act.
This new plan demonstrates that Holyrood has no sovereignty. The Scottish parliament is powerless to defend the rights of Scottish citizens.
A “deeply regressive” Bill
The Scottish Human Rights Commission called the provisions "deeply regressive". It has particular concerns about the following proposals in the bill:
- directing national courts as to how to interpret and apply human rights, which it says would interfere with the role of courts, undermine the separation of powers, and reduce accountability for breaches of rights;
- decoupling UK courts’ interpretation of Convention rights from the European Court of Human Rights, which will introduce confusion and uncertainty for rights holders and duty bearers alike, and may further reduce rights protection;
- requiring a rights holder to demonstrate "significant disadvantage" before being permitted to pursue a remedy for a breach of their human rights in court, which would "severely undermine the development of a rights-respecting culture and the international human rights requirement to provide an adequate remedy for all human rights breaches";
- requiring UK courts to take into account the wider conduct of rights holders, undermining the universality of human rights, a fundamental principle of human rights law; and
- the impact of repealing the Human Rights Act in Scotland – the Act is embedded into the Scotland Act, and "The potential impact of repealing the Human Rights Act, in terms of the fulfillment of human rights in Scotland, does not appear to have been adequately considered."
The Law Society of Scotland's President Murray Etherington said:“For over 70 years we have benefited from the protections offered by the European Convention on Human Rights. Since 1998 those rights have been built into UK and Scottish law and it is vital that they are not diminished as a result of new legislation.”
There are of course many English people who are also concerned, and see the damage that is being done, although many of the same people supported or facilitated Brexit, despite knowing it was not supported by Scotland or Northern Ireland. Edward Garnier QC, former solicitor-general warned in a column in the Times that:
The Bill of Rights will “further bolster the concerns of those who believe with some justification that this government has a reckless disregard for domestic and international law.”