In his otherwise excellent entry to the UKCLA blog, Mark Elliot states that the repeal of the Human Rights Act (“HRA”) by itself, without anything more, such as its replacement by a British Bill of Rights or the withdrawal of the UK from the ECHR, would not trigger the Sewel Convention which would normally require the consent of the Scottish Parliament. However, I suggest that there may be at least 4 possible arguments for thinking otherwise.
But first a word about the Sewel Convention.
Lord Sewel indicated during the passage of the Scotland Bill 1998 that “we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.” (HL Deb 21 July 1998 c. 791) This wording has been reflected in every Memorandum of Understanding (“MOU”) between the UK Government and the devolved administrations since 1999. It is also reflected in clause 2 of the Scotland Bill 2015 which proposes to amend section 28 of the Scotland Act 1998 (“Scotland Act”) to provide-
“(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
Quite apart from the issue as to whether this amendment would, or could, ever be legally enforceable (see Mark Elliot’s post here and Kenneth Campbell’s here), there are two further problems about it.
Firstly, this is the first time that the expression “devolved matters” would be used in the Scotland Act. As it is used without definition, it is not clear what meaning a court would give to it if that amendment was ever sought to be relied on in court proceedings. (MOU 2013 note 1 defines “devolved”, in relation to Scotland, as meaning “any function not reserved to the UK Government or Parliament under Schedule 5 to the Scotland Act or transferred to the Scottish Ministers under other legislation.”) The courts in the Imperial Tobacco case drew attention to the significance of the absence of such a concept when interpreting whether a provision in an ASP related to reserved matters in that Act. (Imperial Tobacco v HMA  CSIH 9, Lord Reed at para 121;  UKSC 61, Lord Hope at para 15)
Secondly, and more importantly for present purposes, the proposed amendment does not take account of how the Sewel convention has been interpreted in practice since 1999. Devolution Guidance Note No 10 made it clear that the convention applied not only (a) to provisions in Westminster Bills applying to Scotland “which are for devolved purposes” but also (b) to provisions in such Bills “which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers”, even although such provisions strictly relate to reserved matters. However, as Chris McCorkindale has pointed out, this is how it has been applied in practice since then. This position is also reflected in Standing Orders of the Scottish Parliament. (See Rule 9B.1 of the Standing Orders 4th Edition 8th Revision (June 2014))
As the amendment will have the effect of replacing the Sewel Convention, it is important that it should be amended to reflect how that convention is at present applied. For the purposes of this post, it is assumed that it will be.
The repeal of the HRA
There are only two references to the HRA in the Scotland Act. These are in section 126(1) which defines “Convention rights” as having the same meaning as in the HRA and in paragraph 1(2)(f) of Schedule 4 which lists the HRA as one of the enactments which the Scottish Parliament cannot modify. If the HRA was simply to be repealed, it would not matter whether or not the Bill doing so contains provisions repealing, or for the repeal of, those references as consequential amendments. In any event, the effect of that Bill would be that those references would cease to have effect and be spent.
Human rights as such is not a reserved matter and paragraph 7(2) of Part 1 of Schedule 5 specifically provides that the reservation of “international relations” does not reserve the observing and implementing of the Human Rights Convention which is defined as the ECHR and its protocols. However, the Scottish Parliament is prevented from making its own provision for giving effect to that Convention in Scots law by section 29(2)(c) and paragraph 1(2)(f) of Schedule 4 because the effect of any such provision would be to modify the effect of the HRA. It therefore follows that, if that paragraph is spent or repealed with the repeal of the HRA, this would have the effect of increasing the competence of the Scottish Parliament. It could even re-enact the HRA for Scotland. Therefore the Sewel convention would be triggered.
Similarly, even although the HRA is only being used as a dictionary in order to define what is meant by “Convention rights” for the purposes of the Scotland Act, the repeal of the HRA would mean that there would no longer be any substance to that definition. It would, as we used to say, beat the air and the courts would not know how to interpret that expression. This would have the effect of removing the restrictions on the competence of the Scottish Parliament in section 29(2)(d) and of the Scottish Ministers in sections 53, 54 and 57 and, as a result, increasing their competence. This again would trigger the Sewel convention.
Similarly, the repeal of the HRA would have the effect of increasing the powers of the UK Government to intervene in Bills passed by the Scottish Parliament under section 35, or in actions, or proposed actions, by Scottish Ministers under section 58, if the Secretary of State considered that the Bill contained provisions, or the action or proposed action, would be incompatible with any international obligations. This is because the definition of “international obligations” in section 126 (10) would no longer have the exception for Convention rights if that reference ceased to have any meaning. This would have the effect of restricting the competence of the Scottish Parliament and Scottish Ministers by subjecting them to an increased control by the UK Government and therefore triggering the Sewel convention.
Finally, the repeal of the HRA would affect the definition of “compatibility issue” in section 288ZA of the Criminal Procedure (Scotland) Act 1995, and the operation of the provisions of that Act which were inserted by Part 4 of the Scotland Act 2012. These make provision for the reference to the High Court or the Supreme Court of those issues, in criminal proceedings, regarding the compatibility of certain actions with section 6 of the HRA or of certain provisions in an ASP with Convention rights. This would have the effect of triggering the Sewel convention both in its original sense as used by Lord Sewel and in its extended application.
Avoidance of these effects
The application of the Sewel convention could, of course, be avoided if the HRA was not repealed so far as Scotland was concerned.
Iain Jamieson is a retired UK and Scottish Government lawyer. He headed a small team of lawyers who instructed the drafting of the Scotland Act 1998.
This post first appeared on the UK Constitutional Law Association blog.