Human Rights Act and Devolution (OCR A-Level Law): Revision Notes
Human Rights Act and Devolution
Understanding the entrenchment of the Human Rights Act 1998
The Human Rights Act 1998 is deeply embedded (entrenched) in the UK's domestic legal system. This entrenchment means the Act has become a fundamental part of UK law that cannot easily be removed or replaced.
What is entrenchment?
Entrenchment refers to legislation that is so firmly established within a legal system that attempts to repeal or significantly alter it face substantial obstacles. In this context, the HRA 1998's entrenchment creates particular challenges because of its connection to devolution arrangements.
The potential blocking power of devolved nations
If the UK Government attempted to repeal the HRA 1998 and replace it with a Bill of Rights, the three devolved nations—Wales, Scotland and Northern Ireland—may have the power to prevent such changes.
This potential blocking power arises because the HRA 1998 is not simply a matter of reserved UK law. The Act has become integrated into the constitutional arrangements of the devolved nations, meaning changes to it affect devolved competences and powers.
A Bill of Rights would be a new constitutional document that could potentially replace the Human Rights Act 1998, establishing different protections or mechanisms for safeguarding human rights in the UK.
Scotland's firm position on human rights protection
Scotland's Government has taken a particularly strong stance on maintaining human rights protections. In 2014, the Scottish Government publicly stated that it would not tolerate any attempt by the UK Government to remove Scotland from the protection of the European Convention on Human Rights.
Scotland's 2014 Declaration
The Scottish Government's declaration demonstrates the strength of feeling in Scotland about maintaining ECHR protections and highlights the constitutional tensions that could arise if Westminster attempted to weaken human rights legislation. This represents a firm constitutional position that any UK Government would need to address.
The European Convention on Human Rights (ECHR) is the international treaty that the Human Rights Act 1998 incorporates into UK law. Scotland's commitment to the Convention goes beyond simple political preference—it reflects the Convention's integration into Scottish constitutional arrangements.
Complications facing the UK Government
The UK Government faces significant legal and constitutional difficulties if it wishes to repeal the HRA 1998. The complications arise from two connected requirements:
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Repealing the Human Rights Act 1998 itself - This would require an Act of Parliament, which is straightforward from a procedural perspective.
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Amending the devolution statutes - This is more complex because the HRA 1998 is referenced in and forms part of the constitutional settlement for Wales, Scotland and Northern Ireland. Their devolution statutes would need amendment to remove these references.
While the UK Parliament technically has the legislative power to both repeal the HRA 1998 and amend devolution statutes, constitutional convention requires that such changes follow proper consultation procedures.
Devolution statutes are the Acts of Parliament that established devolved governments in Wales (Government of Wales Act), Scotland (Scotland Act) and Northern Ireland (Northern Ireland Act). These statutes define the powers of devolved institutions and their relationship with Westminster.
The Sewell Convention and the requirement for consent
The Sewell Convention creates a significant constitutional obstacle for any UK Government attempt to make changes affecting devolved matters without proper consent.
The Sewell Convention
The Sewell Convention establishes that when the UK Parliament wishes to legislate on devolved matters, it must first seek the consent of the relevant devolved legislature. This principle is also known as the "legislative consent motion" or "Sewel motion."
In practical terms, this means:
- The UK Government cannot simply impose changes to human rights law that affect devolved competences
- Devolved parliaments/assemblies must be consulted
- The UK Government should seek their consent before proceeding
Devolved matters are policy areas where the devolved governments of Scotland, Wales and Northern Ireland have legislative and executive responsibility. These include areas like health, education, and aspects of justice. Human rights protection intersects with many devolved policy areas.
Current uncertainties about permissions and procedures
There is presently significant uncertainty about exactly what permissions the UK Government would need to obtain, and precisely how such consent should be sought and granted.
Key Unanswered Questions
This quandary (difficult situation requiring a decision) includes questions such as:
- Must the UK Government obtain formal consent from all three devolved legislatures?
- What happens if one or more devolved nations refuse consent?
- Could the UK Parliament proceed despite refusal of consent?
- What is the legal status of the Sewell Convention—is it legally binding or merely a political convention?
These unresolved questions mean that any attempt to repeal or substantially amend the Human Rights Act 1998 would likely face both legal challenges and significant constitutional controversy.
The constitutional relationship between Westminster and the devolved nations continues to evolve, and the issue of human rights protection sits at the heart of debates about the nature and extent of devolution in the UK.
Key Points to Remember:
- The Human Rights Act 1998 is so deeply entrenched in UK law that devolved nations could potentially block its repeal or replacement.
- Scotland has explicitly stated it will not accept being removed from ECHR protection, demonstrating the strength of devolved nations' positions.
- The Sewell Convention requires the UK Government to seek consent from devolved legislatures before legislating on devolved matters.
- The UK Government faces the complication of needing to both repeal the HRA 1998 and amend devolution statutes for Wales, Scotland and Northern Ireland.
- There is currently significant uncertainty about what permissions are required and how consent should be obtained, creating a constitutional quandary for any government wishing to change human rights legislation.