Every year a guest speaker from the Government Legal Service for Scotland is invited to give a presentation on an aspect of constitutional law to students on the undergraduate Constitutional law module at RGU Law School. This year our guest speaker was Fraser Gough whose presentation was entitled, ‘An Overview of the protection of human rights in Scots law: How we got here, and where next?’ The presentation can be viewed here.
The presentation provided a thought-provoking overview of key constitutional moments in the UK’s approach to human rights and its incorporation of the European Convention on Human Rights (ECHR) via the Human Right Act 1998 (HRA 1998). In particular, the presentation noted the tension between the doctrine of UK parliamentary sovereignty and judgments from the European Court of Human Rights (ECtHR). The initial attitude of Clement Attlee’s Labour Government in signing up to the Convention in 1951 was characterised by a certain insouciance, believing that the Convention merely contained rights which the UK already respected and upheld. The ECHR was not seen as presenting much in the way of a challenge, politically or legally, to the UK. Secondly, as a dualist state, the ECHR would not impact on parliamentary sovereignty without incorporation into domestic law by Act of Parliament. Essentially, the thinking of the UK Government at the time was that the ECHR was for the benefit of other countries and to address human rights atrocities committed during the Second World War.
Arrival of the Labour Government in 1997
Until the Human Rights Act 1998, the ECHR was largely treated as something ‘external’ to UK law but that all changed when Blair’s New Labour Government swept to power in 1997. The Blair Government ushered in a programme of wide-ranging constitutional reform. Some critics would label this ‘constitutional vandalism’ but others such as Charter 88, the Scottish Constitutional Convention and the Electoral Reform Society all supported the need for constitutional reform.
The Labour Government’s incorporation of the Convention via the HRA 1998 came into effect in 2000. Now the tension between parliamentary sovereignty and compliance with the judgments of the ECtHR would begin to emerge in full. The HRA 1998 had been carefully crafted to retain UK parliamentary sovereignty, with section 2 of the Act obliging UK courts to take into account the jurisprudence of the ECtHR, but without explicitly stating that they must follow it. Section 3 of the Act ensured that the interpretation of UK legislation should be in line with Convention rights but only ‘so far as it is possible to do so’.
The legal position regarding compliance with the ECHR is not the same in Scotland, with s29 (2)(d) of the Scotland Act 1998 stating that no Act of the Scottish Parliament is valid if it is incompatible with Convention rights. As the Scotland Act 1998 came into force before the HRA, the effects of compliance with the ECHR were felt first in Scotland. Indeed, the very first Bill of the new Scottish Parliament was introduced under emergency procedure in response to the ruling in the case of Ruddle v Secretary of State or Scotland that a person could not be detained, despite representing a threat to public safety, where his condition was untreatable in accordance with the Mental Health (Scotland) Act 1984. Detention would be in breach of Article 5 of the Convention and the right to liberty unless prescribed by law. To avoid the release of dangerous individuals into the community, the Scottish Parliament passed the Mental Health (Public Safety and Appeals) (Scotland) Act 1999.
Other challenges followed, in Scotland and England, changing the landscape of human rights in the UK and challenging politicians of all parties and their support for the ECHR.
To see oursels as ithers see us!
No one likes to have their faults pointed out to them by others and so it was with irritation that governments of all hues, Labour, SNP and Conservative, reacted when the ECtHR and domestic court rulings on human rights went against established UK law.
The enthusiastic support for the Human Rights Act from the party which had introduced it quickly evaporated following 9/11 and the so-called ‘war on terror’. The Blair Government introduced the Anti-terrorism, Crime and Security Act 2001 which allowed for the detention without charge or trial of foreign suspects and resulted in The Belmarsh case with the suspects claiming breach of Article 5 of the Convention. The House of Lords (the predecessor of the UK Supreme Court) issued a declaration of incompatibility under section 4 of the HRA 1998 that the Act was in breach of the Convention. Politics and the law clashed again. While the declaration of incompatibility did not invalidate the Act, the political pressure which ensued did bring about the release of the suspects.
Cadder v HM Advocate led to over 850 criminal cases being abandoned and emergency legislation introduced in the wake of the judgment to amend the law. The UK Supreme Court (UKSC) held that Scots law was in breach of Article 6 of the Convention in allowing for the detention and questioning of suspects without access to a solicitor. The case is also notable for the open criticism from the then First Minister Alex Salmond and Justice Secretary Kenny MacAskill against the UKSC, and Lord Hope in particular, for a judgment which fundamentally altered established criminal procedure in Scotland.
The expansive approach to the interpretation of human rights by the ECtHR and the conception of it as a ‘living instrument’ has led to accusations of overreach by judges. Political discontent continued with Hirst v United Kingdom (No2) in which the ECtHR ruled that the Representation of the People Act 1983 breached Article 3 of Protocol 1 by placing a blanket ban on all prisoners from voting. Asked about the prospect of granting voting rights to prisoners, PM David Cameron responded that he felt ‘physically ill’.
The negative reactions of politicians serve as a reminder of the fragility of human rights when even political parties supportive of Convention rights become hostile in the face of ECHR judgments from the ECtHR or domestic courts. Proof perhaps that an independent judiciary is best placed to defend human rights and that human rights need to be protected from political considerations and populist pressures.
Judicial independence becomes even more crucial in human rights cases where judges are asked to make decisions having a political significance. Little wonder that the executive branch of government, generally in control of Parliament, and able to introduce law immune from challenge by virtue of parliamentary sovereignty, is particularly critical where it perceives judges challenging law made by elected politicians.
Where next for human rights in the UK?
In considering ‘where next?’ for human rights in the UK, two very different approaches emerged. Firstly, with the UK Government’s Bill of Rights and, secondly, the Scottish Government’s desire to embed a range of international treaties, such as the United Nations Convention on the Rights of the Child, into Scots law. The Bill of Rights seeks to weaken the impact of the ECHR and the ECtHR in a variety of ways by repealing the HRA 1998. For example, it seeks to remove the obligation on UK courts to interpret law ‘so far as possible’ in accordance with the ECHR and the requirement of UK courts to take into account the jurisprudence of the ECtHR (clause 3(1)) with the UK Supreme Court replacing the ECtHR in determining the meaning and effect of Convention rights in domestic law. Courts, when determining the compatibility of Convention rights against a UK Act, are to give the greatest possible weight to the aims of Parliament in passing the Act (clause 7 (1)). If the Bill is passed, a substantial increase in appeals to the ECtHR appears likely.
The Independent Human Rights Act Review Panel noted that the vast majority of submissions to the Government’s Call for Evidence were strongly in support of the HRA and the Joint Committee on Human Rights likewise observed that the majority of respondents wanted to retain the HRA as it is. The UK Government pressed ahead with the Bill regardless. However, according to The Times of 8 May 2023, the Bill has reportedly been shelved for the third and perhaps final time, following the resignation of former Lord Chancellor and Secretary of State for Justice, Dominic Raab.
Our guest’s presentation ended with a question to which there are no easy answers: who is best placed to decide matters involving human rights? Is it judges who need not concern themselves with the political consequences of their decisions or elected politicians facing criticism from electorates? No simple answers indeed here. Arguments could be made in support of either approach, but your answer might depend on your views about politicians and their motivations.