Scotland politics

Can MSPs block human rights reform?

The Scottish government says it will "robustly" oppose UK government proposals to change human rights laws, but can it block the reforms in Scotland? Constitutional experts say the issue is not clear cut.

Image caption Alex Neil says it is incumbent on the Scottish Parliament to send a message that the UK government proposals are not acceptable

Can the UK government repeal the Human Rights Act in Scotland?

Christine Bell, Professor of Constitutional Law at Edinburgh University, said the UK government does have the power to repeal the Human Rights Act throughout the UK.

She said: "The Human Rights Act is Westminster legislation applying throughout the UK, if it is repealed in its entirety it will be repealed for the whole of the UK.

"However, human rights are also partially devolved, and so any unilateral repeal of the Human Rights Act by Westminster would violate the Sewel Convention, whereby Holyrood must give consent to legislation falling within its devolved powers."

Aileen McHarg, Professor of Public Law at Strathclyde University, agrees.

She said: "The Human Rights Act is a protected enactment under schedule 4 of the Scotland Act and I think that means that the Scottish Parliament's consent would not be required for any attempt at repeal.

"However, human rights as a topic are not a reserved matter and therefore I think that any attempt to replace the Human Rights Act with a British Bill of Rights would require Scottish Parliament consent because it would affect devolved issues."

What about the European Convention on Human Rights?

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Image caption Critics say the Human Rights Act has led to "perverse" judgements, including a ruling that found the UK's blanket ban on prisoners voting was unlawful

Prof Bell said Westminster could not push through any changes that would prevent Scottish Ministers working within the European Convention on Human Rights (ECHR.)

She said: "The Scotland Act gives powers to the Scottish Parliament, so long as they comply with the ECHR (among other things). This would not change with repeal of the Human Rights Act alone."

Prof McHarg said: "The issue would not be whether or not it conflicted with the ECHR, but whether the Scottish Parliament was prepared to agree to any weakening of domestic human rights protection - the indication is that it would not.

"It is possible that Westminster could repeal the Human Rights Act, but exclude Scotland from the scope of any replacement Bill of Rights, allowing the Scottish Parliament to enact its own legislation."

What happens when Scotland gets more powers?

Image caption The Scottish Parliament is due to get more powers under the Smith Commission agreement

The Smith Commission recommended strengthening the Sewel Convention, by putting it into statute. Prof Bell said this could make it harder for Westminster to push through human rights reforms in Scotland.

She said: "The issue raises the prospect of a very real clash between the Conservative Party's commitments to revise and reduce the role of the European Convention on Human Rights in UK Law, and its commitments to the Scottish electorate to implement 'the vow'. And one could surmise the real possibility of a clash and even constitutional crises between the Scottish and Westminster Parliament."

Alan Miller, chairman of the Scottish Human Rights Commission, said he hoped the Smith proposals would give Scotland more say over human rights.

He said: "The Commission has previously called for the Sewel Convention to be given statutory effect in order to provide a democratic check on any changes to human rights laws that would affect Scotland.

"We would therefore hope that the Smith Commission's recommendation to do just that will be implemented, so that the UK Parliament will be obliged to seek the consent of the Scottish Parliament before repealing or replacing the Human Rights Act."

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