Human Rights and Devolution

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.

Scotland

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.

Options

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.

Drone Strikes in Syria

The UK has been carrying out drone strikes on targets in Syria. One of the targets was a man from Cardiff, Reyaad Khan. This was initially justified by the Prime Minister as based upon the UK’s inherent right to self defence. There was said to be evidence of the individuals killed planning and directing attacks against the UK.

Some commentators, notably Joshua Rozenberg and Carl Gardner, thought that this action by the UK could be justified on this basis, under Article 51 of the UN Charter. Although this is possible, it is for the reasons given by David Allen Green, doubtful. Pre-emptive acts of self-defence are possible, but only where the need is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” We cannot know for sure without more facts, but it seems unlikely that these conditions could all be met in relation to those killed.

There is however an easier route to provide a legal justification for the UK’s actions. This involves invoking Iraq’s right to self defence, rather than the UK’s. The argument proceeds as follows.

1. Iraq is entitled to act in self defence against those attacking it (ie Daesh). These attacks are current and all too real: there is no need to rely upon any argument based upon pre-emptive action.

2. The UK is acting under the Iraqi government’s request and authorisation. The UK has the same freedom of action as Iraq does as a result.

3. Military action against Daesh in Syria is legal because the Syrian government has proven “unable or unwilling” to stop military action against Iraq from their bases there. This is well explained by Carl Gardner here.

4. The people killed were acting for Daesh in Syria as part of the ongoing conflict against Iraq. Their deaths were therefore lawful.

5. If they were planning terrorist attacks in the UK, that provides an incidental benefit for their deaths, but not the proximate legal justification under public international law.

In a letter to the United Nations Security Council, the UK’s ambassador Matthew Rycroft now invokes this argument to justify the air strikes (see the third paragraph in particular). This seems correct.

Two objections have been made to this analysis.

First, didn’t the UK Parliament vote against military action in Syria? This is a political, not a legal argument, and doesn’t impact upon the legality of the UK’s actions under international law. Even so, the UK Parliament voted against military action against the Assad regime (which would not have been justified under international law), not airstrikes against Daesh (which are justified under international law).

Second, Carl Gardner asks whether this justification could work if the targets were not acting against Iraq at all, but were merely plotting UK terrorist attacks? As such terrorist planning would be undertaken in order to deter the UK from giving the Iraq government military assistance, that would make such activity a legitimate military target for Iraq, and consequently for those authorised to act on Iraq’s behalf (ie the UK).

The human rights of those killed is a separate question. Unlike the (in)famous killing of the three IRA terrorists in Gibraltar, these Daesh fighters were killed lawfully in a war, the UK operating for the the Iraq government in its defence,

The conclusion is that these deaths were lawful, but that does not mean that the UK has the legal freedom to assassinate potential terrorists wherever they may be in the world.