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The government needs to get its facts straight – it’ll struggle to get its human rights-curbing scheme past Holyrood, writes BILL BENFIELD

THE poor old Tories may have won a majority in the Westminster Parliament, but in certain fields they have some fairly restricted choices.

For Scottish Secretary, for example, they had pretty limited choice — their only MP to hold a seat in Scotland, one David Mundell.

Single-candidate selections generally don’t produce the shiniest and best of options and such would appear to have been the result here.

The unavoidable Mr Mundell came out with a right corker for his first official pronouncement.

The government plans to scrap the Human Rights Act (HRA) would definitely apply to Scotland, he told the BBC with all the authority he could muster.

“New legislation replaces existing legislation and therefore the new Act will apply in Scotland,” he pontificated.

And you might think that being the proud possessor of a degree in law from Edinburgh University, and a solicitor by profession, he knew what he was talking about.

Unfortunately for him, it’s not that simple.

The Scotland Act of 1988 devolved human rights issues to the Scottish Parliament and contained within it the commitment to honour the provisions of the European Convention on Human Rights (ECHR)  — only Belarus is outside the convention at the moment.

And the Scotland Act is quite clear that rulings by the Westminster Parliament on issues previously devolved to the Scottish Parliament will require the assent of Holyrood.

And the Scottish government has already said that it would “robustly oppose” withdrawal from the HRA.

Scotland’s Social Justice Secretary Alex Neil told the Holyrood chamber on Tuesday afternoon that: “Implementation of the Conservative government’s proposals would require legislative consent and that this parliament should make it clear that such consent will not be given.

“It would remain open to exclude Scotland from legislation to repeal the Human Rights Act or for the Scottish government to pass legislation to give effect to a range of rights in policy areas which are within devolved competence.”

Tory plans to repeal the Act and replace it with a British Bill of Rights could thus lead to a complete deadlock between Westminster and Holyrood.

The Conservatives may not grasp the complexities that their intransigence on the Human Rights Act has led it into, but even the mentally challenged Ukip seems to have a clearer understanding.

Ukip MEP Diane James flatly rejected the Tory scheme as a fraud, warning that: “Article seven of the Lisbon Treaty gives the European Council the power to strip a member state of its voting rights if it decides the state is in breach of Brussels’s definition of human rights.
“This is EU law.

“And since EU law is at all times superior to UK law, as long as we are members of the EU our supreme court will be supreme in name only.”

That statement may a bit of a balls-up as far as clarity goes, although in terms of Ukip analysis it’s a miracle of incision, but it’s substantially accurate.

And Northern Ireland has a similar situation, in that scrapping the Act would amount to a breach of the Good Friday agreement.

Across the water, Belfast-based human rights organisation the Committee on the Administration of Justice has written to Northern Ireland Secretary Theresa Villiers asking for clarification on the implications of the Tory pledge for the 1998 Good Friday Agreement.

The government’s pledge to scrap the Human Rights Act would be a “flagrant breach” of the Good Friday Agreement, the committee said.

It added that any repeal would “significantly roll back” Northern Ireland’s settlement.

The Good Friday Agreement, remember, is an international treaty signed by the British and Irish governments in 1998.

The committee warned: “The Tories have committed to plans to repeal the Human Rights Act 1998, which incorporates the ECHR into UK law, including Northern Ireland law.”

Committee director Brian Gormally said: “The Secretary of State should urgently clarify the government’s position as to whether it intends to breach the Belfast Good Friday Agreement in this way.

“Such a step would make the UK an international outlaw and significantly roll back the peace settlement in Northern Ireland.”

Les Allamby, the chief commissioner of the Northern Ireland Human Rights Commission (NIHRC), warned that it could “undermine a foundation stone of the Northern Ireland peace process.

“The Belfast Agreement committed the UK government to incorporate the ECHR into Northern Ireland law, with direct access to the courts, and remedies for breaches of the convention.

“The Human Rights Act fulfilled this commitment.

“The commission has repeatedly advised against a move which can only serve to undermine a foundation stone of the Northern Ireland peace process and reduce hard-won protections for everyone living in the UK.”

The question of the ECHR is an awkward one for the Tories.

The Human Rights Act incorporates the ECHR into itself and thus into domestic law.

Withdrawal from the convention as a necessary prerequisite for dumping the Human Rights Act would have serious consequences on the devolution settlements in Scotland, Wales and Northern Ireland.

And if the new Tory Bill of Rights similarly incorporates the convention, what’s the point of it as an alternative to the HRA?

But the Acts of Parliament devolving power to the Scottish Parliament and the Welsh Assembly assume Britain’s membership of the convention, as does the Belfast Good Friday Agreement.

Withdrawing Britain from the convention would for all practical purposes require the consent of each of the separate nations.

It’s a matter worthy of some consideration as to whether new Justice Secretary Michael Gove could ever win that consent from Nicola Sturgeon.

And then there’s Northern Ireland’s Martin McGuinness to consider.

Sinn Fein spokeswoman Caitriona Ruane has described the government’s plans as “deeply worrying,” but “not surprising coming from this Tory government.”

“Theresa Villiers is fond of telling locally elected politicians of the need to implement agreements, but seems to be oblivious to the fact that scrapping the HRA would result in a breach of the Good Friday Agreement.”

Not much hope there, then.
And even Mr Gove — who is so impervious to criticism that he managed to alienate almost every teacher in Britain in his previous incarnation as education secretary — won’t be helped when the SNP throws back in his face the statement by the Scotland Office after last year’s Tory conference heard of Mr Cameron’s plans to dump the Act.

A Scotland Office spokesman confirmed then that human rights legislation was devolved to the Scottish Parliament because it was “built into the 1998 Scotland Act and cannot be removed.”

So, Mr Gove, I’d have a quiet word with your mate dim Davy Mundell if I were you, and warn him that it’s best to keep his mouth shut until he comes to terms with his brief.

Tell him what you memorably told head teachers in your previous life: “If people say ‘It’s all just a bit too much,’ my view is ‘man up!’”


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