The UK Constitutional Law blog has recently seen posts addressing the UK’s relationship to the European Convention of Human Rights – here and here. In this post we will seek to extend that debate to the issue of Scottish independence. The framework for human rights protection contained in the Scottish Government’s recent publication, the Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland (see Boyle, Tierney and McHarg) is notable in promising a more robust form of legal protection for fundamental rights (what we might call a ‘rights affirmative’ constitutional arrangement) at a time when the prevailing mood in Whitehall is for a restriction in the role of the courts.

In substantive terms the rights to be protected in the interim constitution of an independent Scotland are those contained in the European Convention of Human Rights (ECHR), which thereby becomes part of the Bill’s foundational constitutional framework. In this sense the arrangements mirror those of the Human Rights Act regime. But the constitutional status of these rights is potentially radically different. If the Bill is viewed through a Westminster prism as a ‘constitutional statute’ (see page 62 of the consultation paper) then the rights it contains could be subject to amendment during the period of transition to a permanent constitution if the Scottish Parliament expressly chooses to repeal or amend the Bill. However, there is some ambiguity in the Bill and broader consultation paper, since at other times it seems to be the intention of the Scottish Government that rights contained in the Bill will not be subject to parliamentary authority, but will be, in effect, entrenched. And in any case rights entrenchment is likely to be solidified following the work of the proposed Constitutional Convention process and the adoption of a new permanent written constitution. The consequence of these two processes is that the constitutionalisation of human rights – both in transition and in an envisaged permanent constitution – will require a reconceptualisation of the legislative role in Scotland and the drawing of an ever more stark contrast between the relationship of courts v legislature in Scotland on the one hand, and that between courts and Parliament in London on the other. Such a radical realignment of institutional powers should be made clear to citizens, enabling an open and inclusive debate in Scotland concerning how or indeed whether human rights should be protected from legislative will in a new Scottish constitution.

Section 26(2) of the proposed Bill provides that Scots law is of no effect in so far as it is incompatible with Convention rights. Page 56 of the consultation proposes that the Human Rights Act 1998 and Scotland Act 1998 be amended to ensure that those matters currently reserved under the Scotland Act 1998 and legislation currently exempt from an ultra vires declaration (i.e. primary legislation emanating from Westminster) should, under the Bill, be subject to the same compatibility requirements under a revised Scotland Act. This would extend the protection of those rights contained in the European Convention of Human Rights from devolved to reserved matters and create a more robust human rights framework than is currently available under the Westminster system. The courts would be able to declare legislation ultra vires the interim constitution should a breach of Convention rights be established, rendering the contravening provision or act unlawful and of no effect. This is clearly a stronger remedy than the declaration of incompatibility option available under section 4 of the Human Rights Act which does not affect the operation of a non-compatible provision and therefore defers to the doctrine of parliamentary sovereignty. In this sense the proposed Bill appears to place limitations on the competence of the newly independent Scottish Parliament, creating a framework model of constitutionalism potentially very different from the Westminster process model (for a discussion on framework v process models of constitutionalism see Feldman). This would be complemented by the existing duty to read legislation as compatible in so far as it is possible to do so under section 101 of the Scotland Act.

However, this is where it gets slightly complicated. The Bill proposes affording ECHR rights constitutional status yet at the same time it also nods towards parliamentary supremacy, suggesting at least the theoretical possibility that the ECHR protection mechanisms could be repealed if the Scottish Parliament expressly chose to do so. Furthermore, perhaps by omission, the section dealing with ECHR protection mentions that the Scottish Government and public bodies are bound to comply but does not expressly provide that the Scottish Parliament’s legislative competence is limited. This omission would be overcome by the overarching provision in section 26(2) that declares Scots law to be of no effect so far as it is incompatible and, under the continuation of laws (section 34) an amended version of section 29 of the Scotland Act could continue to apply, limiting the competence of the Scottish Parliament in relation to ECHR rights and EU law. This is clarified in the explanatory notes to the Bill,

‘The Scotland Act’s human rights ‘bite’ is sharper than that of the Human Rights Act. The renewed Scotland Act will apply the higher threshold – that only applies to Scottish Parliament legislation at present – across all legislation, whether passed at Westminster or by the Scottish Parliament.’

So, whilst the wording of the Bill is unclear on this, it can be implied that the Bill proposes to retain the current, limited, legislative competence framework of the Scotland Act and extend it to reserved matters. By way of example, this would mean that on independence day all reserved matters that are currently in ‘ECHR limbo’ (such as the blanket ban on prisoner voting rights and the Strasbourg judgment in the Hirst case) would need to be remedied, otherwise an application to a Scottish court could result in an ultra vires declaration, rendering the offending provision unconstitutional and of ‘no effect’ in Scots law. In this sense we can see a ‘rights affirmative’ approach at play in relation to those rights recognised under the ECHR.

With the ECHR as the substantive benchmark the Bill does not extend legal coverage to the broad spectrum of rights recognised in international law, such as the right to adequate housing, the right to the enjoyment of the highest attainable standard of physical and mental health, the right to work, the right to an adequate standard of living, the right to take part in cultural life and so on (see for example the scope of rights covered in the International Convention on Economic, Social and Cultural Rights which the UK is party to but which it has not incorporated into domestic law). There is reference in the Bill to some additional rights, such as equality, children’s wellbeing, the interests of the island communities, entitlement to a healthy environment and protection of natural resources (sections 28-32). Although the Bill would codify these references under a single statute, it would appear for the most part that there is nothing in the substance of the provisions that goes any further than protections currently available under existing legislation which would continue to operate under the continuation of laws in section 34 of the Bill. For example, the provisions relating to equality do not go any further than the procedural protections available under the Equality Act 2010. The reference to children’s wellbeing confers a duty on public authorities to ‘seek to safeguard, support and promote the wellbeing of children in Scotland.’ Again, this arguably does not go any further than existing legislation such as the duties conferred on public authorities under the Children (Scotland) Act 1995. The right to a healthy environment potentially extends the scope of justiciable environmental rights in the Bill. On the other hand, the intention could be merely to codify already existing case law under Article 8 of the ECHR. The references to additional rights are therefore better considered as overarching principles rather than substantive provisions that confer additional rights. In the explanatory notes the Scottish Government explains that the intention of this approach is to assist in mainstreaming existing mechanisms. Many human rights advocates may well argue that this does not go far enough.

So, although the interim constitution Bill provides a more robust human rights protection framework than is currently available under the Westminster model, it is also quite restrictive in the wider recognition of additional rights beyond those contained in the ECHR – the ECHR predominantly focusing on civil and political, and not economic, social and cultural rights. Having said that, the proposals leave the future of human rights protection mechanisms in Scotland open for deliberation under the Constitutional Convention process. It is proposed that the interim constitution would be replaced by a written constitution post-independence day following the deliberation and constitution-framing exercise to be conducted by the Constitutional Convention established under an Act of the newly elected independent Scottish Parliament (section 33). And, whilst the interim constitution is a robust (wide reaching with effective remedies) but restricted (only protecting a limited number of rights) model, it does not mean that the same would apply under the terms of a permanent written constitution. The permanent constitution could well embed more wide-reaching human rights protections. In the same vein, the Constitutional Convention might recommend that existing protection mechanisms be reduced or their justiciability qualified (although this might cause significant difficulties if these were deemed to be at odds with Scotland’s obligations under the Council of Europe and European Union). This brings us back to the idea of the interim constitution as a ‘constitutional statute’. This term as understood within a ‘Westminster’ constitutional mentality would make it exempt from implied repeal but not express repeal: in this sense the Scottish Parliament could legislate expressly to amend initial rights protection mechanisms contained in the interim constitution should it so choose. But given the ambiguity in the Bill and supporting documentation to which we have alluded, such an eventuality would raise an interesting issue of legality for the legislation in question. A case might well come before the courts which would test the limits of the Scottish Parliament’s competence in relation to the interim constitution’s authority to bind this Parliament into the future, offering the prospect of a clean break with the very notion of legislative supremacy.

The Scottish Government points out that enhancing rights protection is something that it would suggest be included in the permanent written constitution. Under this proposal, it would be for the Constitutional Convention to decide whether additional protections be afforded to economic, social and cultural rights as well as civil and political rights, such as has recently been recommended by Constitutional Conventions in Ireland and New Zealand. The Bill’s proposed approach differs from the path taken in the interim constitution of South Africa which set out ‘constitutional principles’ to be embedded in the permanent constitution – including equality measures and extensive human rights protection – meaning the road map for human rights was much clearer and more prescriptive in the South African interim arrangements than that set out in the Scottish Government’s proposals. The much broader (and less prescriptive) road map is arguably no bad thing – leaving the decisions on what ought to be included in the final written constitution to the participative Constitutional Convention process.

On the other hand, much of the Scottish Government’s rhetoric around the referendum debate has been about securing a fairer and more inclusive society in an independent Scotland. There ought to be a debate about whether this could, or should, be reflected in any proposed interim or permanent constitution. There also needs to be a debate about how this commitment could be, or whether it ought to be, protected from change by successive political administrations. It is crucial that the people of Scotland should have the opportunity to consider and contribute to the potential models of constitutionalisation of such aspirations – whether they be through channels of political representation in Parliament, through general mission statements or overarching principles, or through the entrenchment of fundamental values in a framework constitution that binds the legislature, executive and the judiciary in the exercise of state power. The consultation process on the proposed Bill offers an opportunity to begin this discussion even before the referendum is held. Interested parties can now begin to contribute to the debate on the future of human rights protection in Scotland should the referendum result in a yes vote. Regardless of differing views as to whether or how human rights should be entrenched, and if so which are suitable for such constitutional protection, what is surely critical is that in the exercise of these debates the process of decision-making about constitution framing be genuinely deliberative, informed and inclusive. In this sense we would reassert that, should there be a yes vote, the Constitutional Convention ‘be designed very carefully if it is to be genuinely deliberative and representative’.

In the event of a no vote the future of human rights is perhaps even less certain – the recent UK Cabinet reshuffle suggests that a move towards human rights reform is very much on the Conservative agenda with Prime Minister David Cameron promising to alter, potentially radically, the UK’s relationship to the ECHR. The Shadow Justice Secretary Sadiq Khan has also set out Labour’s plans for a less intrusive Human Rights Act, offering to limit the extent to which Strasbourg jurisprudence is treated as binding and thereby seeking to shift the balance of judicial power back towards the British courts (for a discussion on this see Elliot and Mead). In light of these proposals, the regime offered in the Scottish Government’s proposed Bill strikes a very different tone, seeking to legally enshrine European human rights provisions ever further in Scotland by transferring ECHR devolved protection mechanisms to reserved matters. If indeed the legal guarantees offered to human rights are further restricted by Westminster in the next few years then it would appear that, in the area of human rights law, an independent Scotland may well look remarkably different from the rest of the UK.

Katie Boyle is a constitutional lawyer and Economic and Social Research Council Fellow at the University of Edinburgh working on the ESRC funded research project ‘The Scottish Independence Referendum: A Democratic Audit’. Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme and leads the ‘The Scottish Independence Referendum: A Democratic Audit’ research project.

The research for this blog was funded by Stephen Tierney’s ESRC Senior Research Fellowship under the ESRC Future of the UK and Scotland programme.