Professor Mark Elliott, who is fast becoming our most important academic public lawyer, has recently written on the ability of the devolved nations to block the enactment of a new British Bill of Rights. Those interested are urged to read what he has to say. What I say here is just a gloss.
I shall confine my discussion to the Scottish position, and will not touch on any differences from Wales. As part of the Good Friday Agreement the UK government agreed to incorporate the European Convention on Human Rights into the law of Northern Ireland (which it subsequently did through the Human Rights Act). Although this does not entrench the Act itself (which did not exist at the time), it does mean that something looking almost identical to it is required.
What does the Human Rights Act do?
The European Convention on Human Rights imposes duties on signatory states to act in compliance with the values therein set out. Article 13 requires that individuals should have an effective remedy before national courts for violation of Convention Rights. Before the HRA came into force, the UK was often found in breach of this provision, and UK judges did their best to stretch (distort?) other means of redress in order to ensure that the UK was in compliance with its international obligations.
The Human Rights Act, in the phrase of the Labour party consultation paper of 1996, sought to bring rights home by providing such an effective remedy. This it did in two ways. First, all public authorities (not including Parliament) were subject to a duty to act in compliance with Convention rights. Breach of this duty may result in an award of damages. Second, Parliamentary legislation is to be interpreted, so far as possible, so as to be Convention compliant, with a power to declare that legislation is incompatible where this cannot be done.
The list of rights enshrined in the Act does not include Article 13, because it was unnecessary to do so. The Human Rights Act is itself the means by which the UK is compliant with Article 13.
It is sometimes claimed that human rights are embedded in the devolution settlement. What does this mean?
The competence of the Scottish Parliament is restricted in two ways. First it may not repeal the Human Rights Act. Further, the Scottish Parliament, unlike the UK Parliament, cannot validly pass legislation that is incompatible with Convention Rights.
The Human Rights Act itself is not therefore a devolved matter, and its repeal by the UK Parliament would neither impact upon the devolution settlement nor offend the Sewel Convention that the UK government does not legislate without the consent of the Scottish Parliament in relation to devolved matters.
However, and perhaps surprisingly in the light of the above, observing and implementing international obligations under the Human Rights Convention are not reserved matters. Anything that is not reserved is devolved. This means that if the Human Rights Act is repealed, what (if anything) replaces it in Scotland is a devolved matter. In principle the UK Parliament could defy the Sewel Convention and impose a British Bill of Rights upon Scotland, but in practice it will not do so.
The end result is that although there is nothing preventing the repeal of the Human Rights Act, the Sewel Convention bars its replacement by the UK Parliament with something else that implements our obligations under the Human Rights Convention, and the Scottish Parliament has the power to enact any replacement imposing duties upon public bodies as the Human Rights Act currently does.
What options are available therefore so as not to impact upon the current devolution settlement.
First, the restriction on the competence of the Scottish Parliament to enact legislation should be left in place if the devolution settlement is not to be altered. It is true that the definition of Convention Rights contained in the Scotland Act cross refers to the definition contained in the Human Rights Act, but this can be overcome with careful drafting (“The Human Rights Act is hereby repealed, save to the extent that the list of rights enumerated shall continue to apply for the purposes of section 126 of the Scotland Act.”)
Second if the UK Parliament chose to repeal the provision relating to the interpretation of its legislation so as to be Convention compliant, it is very doubtful whether the Scottish Parliament could enact legislation replicating this. The interpretation of UK legislation is not a devolved matter, and the Scottish Parliament does not have the power to control UK legislation by setting down rules of interpretation for Scottish courts.
No such interpretive rule is required for Scottish legislation. If it is not Convention compliant, it is invalid.
Third the Scottish Parliament has within the scope of its competence the power to enact laws to implement the UK’s international obligations under the European Convention on Human Rights. This means that if it chooses to do so it can subject Scottish public bodies to the same duties, with the same or greater remedial consequences as are contained in the current Human Rights Act.
The end result is that the UK legislature may repeal the Human Rights Act. The adoption of any proposed British Bill of Rights to replace it would however be a matter for the Scottish legislature, which would be unlikely to adopt it. The end result will be different regimes north and south of the border.
As the entire point of devolution is to allow the different constituent parts of the United Kingdom to have different laws, I am sanguine about that development, but it means that we are far more likely to see an English than a British Bill of Rights.