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Academic warning on rights act plan

Published 17/06/2015

Nicola Sturgeon has strongly criticised plans to replace the Human Rights Act with a British bill of rights
Nicola Sturgeon has strongly criticised plans to replace the Human Rights Act with a British bill of rights

Conservative plans to repeal the Human Rights Act (HRA) could threaten the future of the United Kingdom, damaging part of the "fast-eroding glue" that holds the nations together, a leading academic has warned.

Christine Bell, Professor of Constitutional Law at the University of Edinburgh, said if the Tory government at Westminster scrapped the legislation it would have "far-reaching implications for the UK's devolved administrations and relations with the Republic of Ireland".

With human rights partially devolved, Prof Bell argued if the law was repealed without the consent of Holyrood this would be likely to violate the Sewell Convention - which stipulates that Westminster will not normally legislate on such matters without the agreement of the Scottish Parliament.

Abolishing the Act could also put the UK "in violation of the letter of the Good Friday Agreement" on which the devolved administration in Northern Ireland is based, and risks being seen as a " signal that the Government were no longer committed to the agreement and that all its provisions were up for grabs".

Scotland's First Minister Nicola Sturgeon has strongly criticised plans to replace the HRA with a British bill of rights, which was an election pledge by the Conservatives which has now been put on hold for at least a year.

The SNP leader has pledged she will urge Holyrood to withhold consent for the abolition of the Act in Scotland.

Now, Prof Bell has argued that human-rights legislation is so "deep into the constitutional marrow" of the UK that it is difficult to see how it could be repealed without the permission of the devolved administrations.

Prof Bell made the argument in a blog post published by the Centre on Constitutional Change highlighting that "human rights are partially devolved in Scotland, where the devolved institutions have the power to promote rights".

She added: " Therefore, any unilateral repeal of the HRA by Westminster would be likely to violate the Sewell Convention, whereby the Westminster government will 'not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament'."

There would also be difficulties in Northern Ireland, " where a similar commitment not to legislate against the wishes of the NI Assembly exists" and where " human rights are even further devolved than in Scotland".

Prof Bell claimed that as part of the peace agreement reached in Northern Ireland the UK Government " signed a legally-binding international treaty" with the Republic of Ireland government, where both committed to implement the commitments in the Good Friday Agreement.

"Any unilateral move away from these commitments carries major democratic legitimacy and bad faith consequences, with deep and problematic historical resonances," she warned.

The academic concluded: "Repeal of the Human Rights Act would require the consent of the devolved legislatures and the Republic of Ireland.

" Even if such consent was forthcoming, moving away from the Human Rights Act could be considered a breach of the Belfast or Good Friday Agreement by the 'people of the island of Ireland, North and South', who formally ratified the Agreement with its explicit commitment to the Human Rights Act mechanism, in a referendum, and could be similarly so seen by all those who voted for devolution in Scotland and Wales, who view rights as part of their common and devolved constitutional framework.

"Paradoxically, repeal of the Human Rights Act would also dismantle one of the increasingly few value-driven components of the Union that currently act as its fast-eroding glue."

Prof Bell's blog can be read at www.centreonconstitutionalchange.ac.uk.

SNP MSP Sandra White said: "The SNP is committed to opposing the repeal of the Human Rights Act for the whole of the UK, not just for Scotland. While the Tories ill-thought through and totally counter-productive plans on the Human Rights Act have been kicked into the long grass for now thanks to pressure from the SNP, it's clear that David Cameron is intent on bringing this foolish plan back as soon as he can get away with it.

"Repealing key human rights in order to appease the more extreme Tory backbenchers would be simply unacceptable to people in Scotland - and that's why a key SNP objective will be to continue working across party lines at Westminster and in Holyrood to prevent the Tories following through with this dangerous plan."

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