Quality | 2010.02.08
Scotland and N Ireland could reject bill of rights
Proposals to change the Human Rights Act could become a \'legal and political nightmare,\' experts have said
Plans for a British bill of rights supported by both Labour and the Conservatives could be vetoed by Scotland and Northern Ireland, a report warns.
The proposals to change the Human Rights Act could become a "legal and political nightmare," experts have said, with England and Wales, Scotland and Northern Ireland all left with different levels of human rights protection.
"The devolution statutes and the Human Rights Act are legally and constitutionally tied together," said Qudsi Rasheed, legal officer at Justice, which released the report. "Constitutionally, for there to be a change to the act, the consent of the devolved bodies would be needed."
All the political parties in Westminster have discussed changes to the Human Rights Act. Last year, the government published a green paper on rights and responsibilities, which would add to the Human Rights Act, while the Conservatives insist they would repeal the act altogether.
But the Justice report argues that plans to change the act have been poorly thought through and could be unlawful.
"For Northern Ireland, the Human Rights Act formed part of the Good Friday agreement," said Fiona Murphy of the Committee on the Administration of Justice. "Not only would creating a \'British\' bill of rights be unacceptable to people in Northern Ireland, it would undermine an international peace agreement.
"If people don\'t identify themselves as British, a UK bill of rights is not going to be helpful. In fact it could seriously destabilise. There is a huge backlash against a bill of rights in Scotland. Multiply that by 100, and you are getting close to what the difficulties in Northern Ireland are going to be."
Support for a bill of rights in Northern Ireland has been strong since the end of the conflict, with estimates that 83% of both loyalist and republican communities support strengthening protection for human rights.
On Friday, Northern Ireland\'s power-sharing government agreed to transfer policing and justice powers to Stormont creating further areas of devolved competence which would be affected by any changes to the Human Rights Act, according to the report.
In Scotland, criminal justice is already the responsibility of the Scottish parliament, where cases have been brought under the Scotland Act, not the Human Rights Act. "All major claims against the Scottish government for human rights violations have been brought on the basis of the Scotland Act since before the Human Rights Act came into force," said Aidan O\'Neill QC, a Scottish barrister. "Abolishing the act in Britain would not stop it being used in Scotland."
Experts say the incorporation of human rights into the devolution statutes means attempts to repeal the law in Westminster could leave different parts of the UK with different human rights protection.
"Disentangling the rights from the devolution states would be a very difficult thing to do," said John Wadham, legal director of the Equality and Human Rights Commission. "You would have bizarre situation where there was different set of rights in devolved matters and non-devolved matters, and people in England would have fewer rights than people in the devolved jurisdictions."
Attitudes towards human rights vary widely across the UK. Although there has also been discontent towards the human rights act in Scotland, Scottish ministers have voiced their support.
"We have the Human Rights Act and ECHR incorporated into our founding principles … We are happy with that," said SNP justice minister Kenny MacAskill, giving evidence to the Joint Committee on Human Rights.
"Are we British? No, we are not. We consider ourselves Scottish and we consider those south of the border to be English. That is perfectly legitimate."
"The problem with talking about a British bill of rights is that it assumes there is a common notion of what it is to be British," said O\'Neill. "When that gets analysed, the rights referred to are often said to go back to the Magna Carta, or the bill of rights. Both of those are purely English phenomena, from the period before Britain was created formally in 1707."
"Trial by jury for example is not seen as a fundamental right in Scotland, it is seen as purely a matter for a prosecutor, and is only available for the most serious offences," O\'Neill added. "It\'s opening a whole can of worms reassessing what the United Kingdom is."
Both Labour and the Conservatives denied they had failed to take the devolved legislatures into account. Labour plans to keep the Human Rights Act, with added "responsibilities", would not affect the substance of the act and would only require superficial changes to the devolution statutes, a spokesperson said.
The Conservatives said that they would not impose changes on the devolved areas without consulting them: "We have made it abundantly clear that we would not be wishing to impose something in Scotland against their will," said the shadow justice minister, Dominic Grieve.
"In Northern Ireland we continue to have primary legislative responsibility. The Good Friday agreement says that Britain undertook to incorporate the European Convention on Human Rights into our law, and if we do our bill of rights properly, there is nothing that would break that undertaking," Grieve added.
The Ministry of Justice said the devolved legislatures would be consulted on the bill.
"Our green paper makes it clear that this is an important UK-wide discussion," a spokesman said. "It is of course essential to work with the devolved legislatures and administrations to consider how a UK bill of rights could be drawn up in way that is consistent with our governance arrangements. It is by no means a certainty that any future bill would require amendment to the devolution acts … We have and are continuing to consult as widely as possible – our consultation remains open to everyone across the UK until 26 February."
For more information, please visit
http://www.guardian.co.uk/uk/2010/feb/07/northern-ireland-bill-of-rights
