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Challenges to the British perspective on human rights in the devolved nations

Nationalising Human Rights: British versus Scottish Perspectives

Les droits humains dans la construction nationale : points de vue britannique et écossais
Michael Keating et Daniel Cetrà

Résumés

Si les droits humains sont universels, d’un point de vue historique, leur mise en application s’est faite à l’échelle des États-nations. Au cours des dernières décennies, ils ont été mis en exergue également au niveau supranational comme au niveau infra-étatique. Les nationalismes d’État comme les mouvements nationalistes infra-étatiques ont invoqué les droits humains afin de mettre en lumière des tensions relatives à la question de la légitimité et à celle des valeurs de la démocratie libérale. Au Royaume-Uni, les partisans d’un nationalisme britannique vilipendent la Convention européenne des droits de l’homme à la fois pour son contenu, et parce que sa portée s’étend au-delà des frontières nationales, et ils proposent de remplacer par une charte des droits britannique le Human Rights Act, qui incorpore la Convention dans le droit britannique. En Écosse, à l’inverse, il y a un large consensus en faveur du maintien de l’applicabilité directe de la Convention, ainsi que de l’extension des droits humains à d’autres domaines, dans un contexte écossais. Les projets de construction nationale écossais et britannique rivalisent pour s’approprier la cause des droits humains.

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Introduction

  • 1 Michael Keating, Re-scaling the European State, Oxford: Oxford University Press, 2013.

1Human rights are inherently universal, yet they have historically been linked to the nation-state. In recent years, the European nation-state has faced twin challenges. One is functional. The state (government and politics) has rescaled downwards to the regions and cities and upwards to European institutions.1 The other is normative. Claims to sovereignty and nationhood have re-emerged within historic sub-state territories and linked to the European level. The United Kingdom is a site of such contested sovereignty claims, pitching the Westminster model of unlimited Parliamentary sovereignty against peripheral movements asserting their own sovereignty within a European context. There is a parallel constitutional argument over proposals for a more codified constitution, including entrenched human rights and those who reject this in the name of Parliamentary sovereignty and the “political constitution”. These arguments intersect in Scotland in a way that is often not appreciated by defenders of the Westminster model. These arguments cut across the traditional left/right division of politics, although it tends these days to be the political right who argue for unbridled Westminster sovereignty.

2In this article, we discuss the arguments about human rights and nationality and then place them within the “British political tradition”. We then review the debate about a British Bill of Rights and how it intersects with the Scottish devolution settlement, which entrenches the European Convention on Human Rights (ECHR) in a stronger form than at Westminster. We trace the way in which both British and Scottish nationalists are using human rights as a nation-building instrument and show how successive attempts to introduce a British Bill of Rights have foundered, partly on the difficulty of fitting Scotland in. The Northern Ireland and Wales devolution statutes also entrench the ECHR but the Northern Ireland context is quite different, while Wales does not at present have its own legal system but remains part of the single jurisdiction of England and Wales. Reviewing the development of human rights, law and practice, we find a distinct model emerging in Scotland, while the Conservative Party continues to raise the prospect of UK withdrawal from the ECHR.

The nation and human rights

  • 2 Thomas Pogge, “Cosmopolitanism and Sovereignty”, in Garrett W. Brown and David Held (...)
  • 3 John Stuart Mill, On Liberty, Utilitarianism, and Considerations on Representative Governme (...)
  • 4 David Miller, On Nationality, Oxford: Oxford University Press, 1995; David Miller, Citizens (...)
  • 5 Richard Bellamy, A Republican Europe of States, Cambridge: Cambridge University Press, (...)
  • 6 Yael Tamir, Liberal Nationalism, Princeton: Princeton University Press, 1993; Will (...)

3There may be something paradoxical in the use of human rights by nationalists and nation-builders, given that these are, in principle, universal.2 Certainly, there are anti-universalist strands in nationalism focused on the unique qualities and distinct values of the chosen nation. Since the American and French Revolutions, however, there have been consistent claims linking the nation, and especially the nation-state, with universal rights, such as those of John Stuart Mill in the nineteenth century.3 The reasons for linking rights with the nation are, variously, normative and instrumental. David Miller4 argues for a nationally-based conception of citizenship on the grounds that we have rights and duties towards our fellow-citizens that we do not owe to all humanity. For others the argument is more institutional and focuses on the nation-state. Richard Bellamy5 argues that even basic human rights are properly conceived as the entitlements of citizens rather than of individuals and that legitimate rights claim come only through being a citizen of a democratic political community. This is an argument for liberal nationalism, a project freed from ethnic exclusion and tied to universal values.6 Yet the assumption underlying the work of these authors is that citizens do, and should, belong to a unitary national community.

  • 7 Eric Hobsbawm, Nations and Nationalism since 1780, Cambridge: Cambridge University Press, (...)

4The case that interests us is different. There are many places where the definition of the national community is contested. Nation-building projects that challenge the state are not necessarily, pace their critics,7 anti-liberal and opposed to universal rights. They may, on the contrary, rest on essentially the same normative foundations as the liberal, rights-respecting states they are challenging. In other words, rival national projects are competing for the same normative space, claiming the legitimacy that comes from a commitment to human rights. This does not mean that they will always see rights in exactly the same way. There are always local variations and emphases, but the underpinning is a universal conception. Since the Second World War, there has been an extension of international human rights regimes, recognising the universal principle. In Europe, there is a deeper application, through the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the later Charter of Rights of the European Union. Neither of these imposes a single, uniform conception of rights but they are in continual interplay with national, legal, and political systems, producing nuances in interpretation among places and across time. While it would be a category error to describe the process of European integration as nation-building, there are parallels in the way that human rights are used to legitimate the European project while Europe, in turn, provides normative and institutional support for human rights.

  • 8 Simon Langlois, “Le Choc des Deux Sociétés Globales”, in Louis Balthazar et al. (eds), Le Q (...)

5At the same time, there has been nation-building in sub-state territories with historic, cultural, or institutional identities. National movements have developed from representing partial claims and grievances, such as cultural or economic disadvantage, to the claim to being “global societies”8 covering the whole range of collective life. This includes being the primary focus of citizenship and rights. The case of Canada and Quebec is exemplary. Pierre Elliot Trudeau sought to build a civic Canadian nation based upon equal citizenship shared by individuals. This clashed with a Quebec movement, stemming from the Quiet Revolution and including many of Trudeau’s erstwhile allies, seeking to build Quebec on the same principles, as opposed to the old Quebec particularism.

The British Political Tradition

  • 9 A.V. Dicey, Introduction to the Study of the Law of the Constitution, Basingstoke: Macmilla (...)
  • 10 Iain McLean, What’s Wrong with the British Constitution?, Oxford: Oxford University Press, (...)

6The “British political tradition” refers to the doctrine and practice of British constitutionalism in the absence of a codified and binding constitution. It has long combined an emphasis on individual liberties with a doctrine of parliamentary sovereignty and supremacy, the celebrated Westminster doctrine, according to which the supreme principle of authority is the Monarch-in-Parliament. The doctrine itself can easily be criticised as incoherent since its most celebrated exponent A.V. Dicey claimed that it does not depend on extrinsic bases but only on Parliament itself;9 whether Parliament itself is subject to the rule of law is an issue that has generally been avoided. Alternative views about sovereignty have long persisted, especially in Scotland, where legal and other scholars have insisted that the 1707 Union between England and Scotland abolished the parliaments of both nations, so that to trace the sovereignty of Westminster back to the English Parliament is wrong; the Scottish Parliament had never asserted such a claim.10

  • 11 Herbert Butterfield, The Whig Interpretation of History, Harmondsworth: Penguin, 19 (...)
  • 12 Barry Jones & Michael Keating, Labour and the British State, Oxford: Oxford Univers (...)

7In the absence of entrenched constitutional provisions, political conventions serve to ensure restraint and that parliamentary supremacy is not abused. These were underpinned by myths of progress and British exceptionalism resting on a teleology of the march towards freedom and democracy, a set of ideas characterised and criticised as the “Whig” history.11 The myth did not encompass colonized peoples. Nor was it always extended to Ireland, where members of the majority religion were long denied rights, and exceptional laws (known as “coercion”) were regularly brought in after the union with Great Britain in 1801. Even after the advent of democracy in the United Kingdom, egregious abuses of human and civil rights were tolerated in the autonomous province of Northern Ireland. Yet the British left, notably the Labour Party, remained suspicious of entrenching rights provisions, fearing that it would put power into the hands of judges, whom they regarded as inherently hostile.12

  • 13 Lord Hailsham, “Elective Dictatorship”, The Richard Dimbleby Lecture Series, London, Britis (...)
  • 14 Andrew Gamble, The Free Economy and the Strong State: The Politics of Thatcherism, (...)
  • 15 Labour Party, Rights Brought Home: The Human Rights Bill, CM 3782, October 1997.
  • 16 Ibid, 1.14.
  • 17 Bingham Centre for the Rule of Law, A Constitutional Crossroads: Ways Forward for t (...)

8In the post-war years, there was sporadic concern about the reach of the state, mostly from the political right. Lord Hailsham, referring to the Labour government of the 1970s, famously wrote about an “elective dictatorship”.13 It was in the 1980s, however, that sections of the political centre-left began to question the parliamentary constitution under the impetus of the Thatcher government and its “free economy and strong state”.14 There were calls for a written constitution, electoral reform and legally-enforceable human rights, for example from the pressure group Charter 88. Although these were more associated with the Liberal (later Liberal Democrat) Party, the thinking began to influence the Labour Party, which eventually adopted the policy of incorporating the European Convention on Human Rights into UK law so that it could be enforced by the domestic courts. In its pamphlet Rights Brought Home: The Human Rights Bill,15 the Labour Party argued that incorporation of the ECHR would enable the enforcement in UK courts of a suite of rights that were at least in part inspired by the common law tradition and by the work of British lawyers, especially given that the ECHR is, at least, partly British. The party also claimed that the Human Rights Bill would reduce the cost and time of pursuing and enforcing the rights while allowing British judges “to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe”.16 A section of the left, however, remained opposed to the intervention of the judiciary into what it regarded as political matters.17

9The 1998 Human Rights Act, introduced by the incoming Labour government, incorporated the Convention into the law of the United Kingdom. This did not create new rights, as the UK was already a signatory to the Convention, but it did provide for Convention rights to be applied directly in UK courts; previously litigants had to go directly to the European Court of Human Rights (ECtHR) in Strasbourg. As a compromise with the principle of parliamentary authority, domestic courts could pronounce on alleged breaches of the Convention but not disallow laws of the Westminster Parliament. Instead, a fast-track procedure was introduced, allowing Parliament to remedy defects itself. In this way, legally enforceable rights are reconciled with the principle of parliamentary sovereignty. When the European Union negotiated its own Charter of Fundamental Rights in 2000, the UK Labour government was less keen. After ensuring that it would only apply to matters of EU law, it then sought to opt out anyway, although this proved harder than it appeared. In so far as it applied within the UK, the Charter, as EU law, was binding. While the ECHR continues to apply across the UK, the EU Charter ceased to apply on the UK’s withdrawal from the EU.

Devolution

  • 18 Michael Keating, State and Nation in the United Kingdom: The Fragmented Union, Oxford: Oxfo (...)
  • 19 As did Ireland and, after 1921, Northern Ireland with a subordinate Parliament.
  • 20 Initially, the National Assembly for Wales lacked powers of primary legislation but that wa (...)

10The Westminster view of the constitution (as a unitary state based on parliamentary sovereignty) long co-existed with a view of the United Kingdom as a plurinational union in which demos (the people), telos (the constitutional trajectory), ethos (dominant values) and sovereignty were contested.18 Yet Westminster majorities had long resisted what might appear the logical conclusion, a federal state. While Westminster retained supreme legislative authority, Scotland retained its own jurisdiction19 with its own statute book and courts, allowing for some autonomous development of Scots law. There were sporadic demands for Home Rule on federal principles, the main response to which was administrative devolution and favourable economic treatment. The last quarter of the twentieth century saw the longest and most powerful Home Rule movement, which finally achieved a devolved Scottish Parliament at the very end of the century. At the same time, assemblies were established in Northern Ireland and Wales. They represented a step change in a process of Scottish and Welsh nation-building (or rebuilding) which continued apace after devolution, especially following the accession to government of the Scottish National Party in 2007. The legislative bodies in Scotland, Wales20 and Northern Ireland have legislative powers over all matters not expressly reserved to the centre, but Westminster retains the right to legislate within devolved fields, subject only to a non-binding consent mechanism, raising numerous questions as to whether the locus of sovereignty has changed.

  • 21 Ewart Communications, “Equality, Human Rights and Constitutional Reform in Scotland: A Repo (...)

11At the same time, the Convention was incorporated into the devolution settlements for Scotland, Wales, and Northern Ireland in a stronger form. Any court in Northern Ireland, Scotland, or England & Wales can strike down statutes of the relevant devolved legislatures, with appeal to the Supreme Court of the United Kingdom. The reasoning is that the devolved legislatures are not sovereign bodies. The Equalities and Human Rights Commission monitors rights in England and Wales, and reserved matters in the devolved territories. The Scottish Human Rights Commission, established in 2006, has the task of developing rights in Scotland. This represents a permitted exception to the rule of the International Co-ordinating Committee for National Human Rights Institutions that each member state should have only “one ‘A’ Status body”, a concession granted because of the UK’s constitutional system.21

12The incorporation of the ECHR into the devolution settlement, like the direct application of EU law, allowed for a more extensive devolution settlement than might otherwise have been possible. It also allowed the UK to dispense with a state-wide charter of rights such as is found in many federal and federal-type systems. Crucially, it also separated human rights from the vexed question of nationality in a way that a UK-wide charter would not have done. A substantial sector of the population of Northern Ireland does not identify as British and could not easily have accepted that their rights stem from either British nationality or citizenship. In a less dramatic, but important, way, many Scots do not identify as British and see Scotland as their primary national reference. All this paved the way for divergence in human rights regimes across the United Kingdom.

  • 22 House of Commons, “The Constitution”, Hansard, Volume 294, col. 350, May 16, 1997.
  • 23 House of Commons, “Human Rights Bill Lord”, Hansard, Volume 306, col. 828, February 16, 199 (...)
  • 24 Ibid, col. 789.

13The 1998 parliamentary debates on these matters reflect an alignment between positions on devolution and the HRA. For the Labour party, both measures were part of a process of constitutional reform to strengthen representative and democratic government. Former Secretary of State for Wales Ron Davies argued that legislation to incorporate ECHR would “re-balance the relationship between the citizen and the state and strengthen the commitment to individual rights and freedoms which lies at the heart of our constitution”.22 Opponents invoked an absolutist idea of sovereignty and argued that both the Human Rights Act and devolution undermined the sovereignty of Parliament. The claim was that the incorporation of ECHR interfered in areas that are the preserve of the legislator to make legitimate decisions and upholding the rule of law. In the words of Conservative MP David Ruffley, incorporation meant that “all sorts of public policy issues could fall to be determined by domestic judges”, thus resulting in the “inevitable politicisation of the judiciary”.23 According to Brian Mawhinney, also a Conservative MP, by placing authority into the hands of judges who were not seen as representative or accountable, “unelected judges would be enabled to override elected members of Parliament”.24 As a result, incorporation would undermine democracy.

Rebuilding the British nation and human rights

  • 25 Daniel Cetrà & Coree Brown Swan, “Speaking for ‘Our Precious Union’: Unionist Claims in the (...)
  • 26 Gordon Brown, “Full text of Gordon Brown speech”, Commonwealth Club, February 2007.

14The idea of a British Bill of Rights has been circulating since the constitutional reform movements of the 1980s but starting from very different points. On the centre-left, it is motivated by a desire to deepen and strengthen human rights and put them in a national framework. On the right, it is about escaping from what is seen as the power of “foreign” judges and from European jurisdiction. On both left and right, there is an explicit or implicit nation-building aim, seeking to rebuild the United Kingdom on the basis of shared values. This ties into the debate about “Britishness” and “British values”, themes deployed as a response to what is often seen as the dangers of multiculturalism, devolution and, more recently, Scottish independence.25 Under the New Labour government, there was an increasing emphasis on “British” values identified as “British tolerance, the British belief in liberty and the British sense of fair play”.26

  • 27 Mary Arden, Human Rights and European Law: Building New Legal Orders, Oxford: Oxfor (...)

15There has been opposition to incorporation of the ECHR into UK law and to the EU Charter of Rights, from several different perspectives. Eurosceptics on both left and right see it as an encroachment on parliamentary sovereignty. The English tabloid press makes a great deal of this, suggesting that it allows “foreign judges” to rule on UK domestic matters. This is a misreading of the way it works and was intended to work which, rather, encourages a dialogue between European and British norms and practices, rather than an imposition from above.27 Yet even that idea arouses opposition from British nationalists wanting to keep their system free of foreign impurities. At the same time, the idea of a home-grown system of human rights has been deployed to create a modern British nation in the face of challenges from above (Europe) and below (nationalisms in Scotland, Wales, Northern Ireland and, in its own way, England).

  • 28 David Cameron, Balancing Freedom and Security – a Modern British Bill of Rights, Centre for (...)
  • 29 Gordon Brown, My Scotland, Our Britain, London: Simon and Schuster, 2014, 37.

16The 2010-2015 Conservative-Liberal Democrat coalition government saw democracy, the rule of law, individual liberty, mutual respect, and tolerance of different faiths and beliefs as fundamental British values giving the UK its identity as a free nation.28 Some centre-left unionists have extended the argument to social rights, worrying that devolution has created different social entitlements across the United Kingdom. Gordon Brown provides the clearest exposition of the Labour view that values of fairness and solidarity are essentially British. He does not deny that there are Scottish values but argues that these have blended with English ideas to create a greater whole: “it was Scottish ideas of solidarity that combined with English ideas of toleration and liberty to create a union that remains greater than the sum of its parts”.29 Following moves by the Coalition, there is a requirement to promote British values in school but, ironically, this applies only in England, the one place where the UK government controls the curriculum. It has often been pointed out that none of these values are exclusively British but that is not the main problem. It is not unusual to build modern nations on the basis of universal values rather than on exclusive values of cultural particularism. The difficulty arises, rather, in making the UK the privileged site for these higher norms and linking them to the national project at a time when exactly the same norms are being deployed to rebuild the nations of the periphery and to underpin secessionist projects. So rival nationalisms are seeking to occupy (and perhaps monopolise) the same normative space. This once again exposes fundamentally different views of the unwritten constitution and any more codified replacement. One sees it as a mechanism to underpin a unitary state and people; the other sees it as a set of mechanisms to manage a plurinational union.

17There have been several attempts since devolution and the Human Rights Act to introduce a new Bill of Rights (variously termed a “British” or “UK” bill) seeking to link human rights to the rebuilding of the British national project. There have been some common features but differences in emphasis. Under the Labour government, the British Bill was seen as supplementary to the European Convention, while including duties as well as rights in order to foster active citizenship and responsibility, in line with New Labour philosophy. Conservative proposals have been strongly informed by Euroscepticism and laced with arguments about the need to reduce the influence of “foreign judges”. They have included populist suggestions that human rights law is too lenient towards suspected criminals, terrorists, refugees and migrants. They also reflect increasing resentment at the way that judges have curtailed ministers’ use of prerogative powers and powers granted in legislation. These judicial tendencies have been attacked as undermining parliamentary sovereignty and accountability and, thereby, democracy.

  • 30 Labour Party, The Governance of Britain, CM 7170, July 2007.
  • 31 Ministry of Justice, Rights and Responsibilities: Developing Our Constitutional Fra (...)
  • 32 Alice Donald, The Implementation and Impact of the Human Rights Act 1998 in the UK, (...)
  • 33 Alice Donald, Developing a Bill of Rights for the UK, Equality and Human Rights Com (...)

18The first effort was the Labour government’s consultation on its 2009 Green Paper on a Bill of Rights and Responsibilities, which was run by civil servants in the Ministry of Justice as part of Gordon Brown’s political agenda as Prime Minister to promote a unifying sense of Britishness and greater social cohesion.30 The Green Paper, entitled Rights and Responsibilities: Developing Our Constitutional Framework,31 justified the initiative on quasi-communitarian concerns around collective responsibility. The key argument was that social and economic change had brought about a more atomised society, a “me” society rather than a “we” society, and that it was necessary to promote social responsibilities in order to achieve greater social cohesion and stability. Labour argued that responsibilities such as obeying the law and paying taxes deserved the same prominence as rights in the UK constitutional architecture. The Green Paper devoted a section to stress that the initiative would need to involve the devolved legislatures and executives, as well as the Human Rights Commissions which operate in the different parts of the UK, on the grounds that each has its own history, conventions, and identity. The public consultation consisted mostly of a series of deliberative events attended by around 500 randomly-selected participants.32 The consultation lacked coverage and meaningful public engagement from the wider public, and it failed to overcome a sense of unease and disengagement with the bill in the devolved nations.33 As a result, no concrete proposal materialised.

  • 34 The parties in the Scottish Parliament have all been pro-immigration, seeing it as (...)
  • 35 Dominic Grieve, “Can the Bill of Rights Do Better than the Human Rights Act?”, Middle Templ (...)
  • 36 Note that the Coalition Agreement speaks of a “British” Bill of Rights while Commission on (...)
  • 37 UK Government, The Coalition: Our Programme for Government, May 2010, 11.

19The second attempt was yet another consultative exercise, this time led by the Conservative-Liberal Democrat coalition government, after the two coalition partners had entered the 2010 general election with divergent positions on the HRA. While the Liberal Democrats were committed to protecting it, the Conservative manifesto pledged to repeal it and replace it with a new UK Bill of Rights. Two recurrent Conservative arguments at the time were, on the one hand, individual responsibilities (similarly to the Labour party argument, the claim that a better balancing of rights and responsibilities was needed) and, on the other hand, security (the claim that the HRA eroded the government’s ability to tackle terrorism, migration34 and crime, a salient narrative after the attacks in London in 2005).35 The coalition compromise was to establish a Commission on a Bill of Rights as a balancing act: to investigate the creation of a British Bill of Rights36 that “builds on all our obligations under the ECHR, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties”.37 Two of the Commission’s eight members (excluding the chair) were Scottish, while none was based in Wales or Northern Ireland.

  • 38 Commission on a Bill of Rights, Discussion paper: Do we need a UK Bill of Rights?, August 2 (...)
  • 39 Commission on a Bill of Rights, A UK Bill of Rights: The Choice Before Us, December (...)
  • 40 Christine Bell, Scotland and the British Bill of Rights Proposals, London: The British Acad (...)

20In August 2011, the Commission issued a discussion paper that, unlike Labour’s attempt, omitted any discussion of why a Bill of Rights might be needed.38 This elicited a much greater response than the Labour consultation, with more than 2,000 submissions. In July 2012, the Commission issued a second, more substantial consultation document.39 Its chair, Sir Leigh Lewis, declared at the outset that the Commission was “acutely conscious” of the devolution dimension and the Commission met representatives of the devolved administrations and legislatures in two-day visits to each nation. It also established an Advisory Panel of individuals nominated by the devolved governments. The Commission resulted in a majority and minority report, the latter rejecting the idea of a Bill of Rights completely and the former recommending creating a new Bill of Rights principally on its perception of public alienation from the HRA. There was a major rift over the application of the report to Scotland. Advisory panel members from Scotland and Wales argued that a new UK bill of rights was generally perceived to be emanating from England, and the Commission itself acknowledged that its consultations revealed that there was “little or no call” for a new bill of rights in Scotland, Wales, or Northern Ireland.40 The majority report underlined again that the meetings in Scotland and Wales produced very little support for one. The coalition, divided on this issue, did not act upon the outcome of the Commission’s recommendations.

  • 41 However, while the 2015 Conservative manifesto promised to scrap the HRA, its 2017 (...)
  • 42 Conservative Party, Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Br (...)
  • 43 Cited in Alice Donald, The Implementation and Impact of the Human Rights Act 1998 in the UK(...)
  • 44 Michael Gove, 2015. See for example Mark Elliott, “Michael Gove, the Justice Commit (...)

21Despite this, the Conservative Party continued to deploy a plethora of arguments to justify repealing and replacing the HRA.41 In a 2014 White Paper, the party returned to the nationalist argument of “putting Britain first”, which fundamentally meant protecting the Supreme Court and other UK courts against the perceived European Court of Human Right’s (ECtHR) expansion of Convention rights into new areas.42 A second argument was the alleged impact of the HRA on efforts to tackle crime and terrorism. In 2013, the then Home Secretary Theresa May stated that temporary withdrawal from the ECHR was one option being considered by the UK government in its efforts to deport the Islamic cleric Omar Mohammed Othman (Abu Qatada). A third argument linked the HRA to unrest through the English riots in 2011. For the then Prime Minister David Cameron, the Human Rights Act and “the culture associated with it” were exerting “a corrosive influence on behaviour and morality […] twisting and misrepresenting human rights in a way that has undermined personal responsibility”.43 A fourth strand of arguments has continued to emphasise “traditional British liberties”,44 implying that they are threatened by, or at least preferable to, European jurisdiction.

  • 45 Secretary of State for Justice, The Independent Human Rights Act Review, December 2 (...)
  • 46 UK Government, Human Rights Act Reform: A Modern Bill of Rights, December 2021.
  • 47 Dominic Raab, “Ripping up the edicts of European Human Rights judges will make us f (...)
  • 48 Ministry of Justice, Bill of Rights Bill, June 2022.

22The last effort from the Conservative government was to draft a Bill of Rights Bill, which ignored most of the findings and recommendations of the Independent Human Rights Act Review,45 introduced to Parliament by the then Secretary of State for Justice Dominic Raab in June 2022. Much of the political impetus behind this came from a desire to reassert parliamentary sovereignty and to roll back judicial review of ministerial decisions, as evidenced in the Conservative consultation paper Human Rights Act Reform: A Modern Bill of Rights,46 but inevitably once again opened up the issue of the nations. The Bill’s stated purpose was to give primacy to decision-making by Parliament, rather than any court, in instances where competing rights and interests are at stake. The UK Supreme Court, not the European Court of Human Rights, would be the ultimate arbiter of rights and Parliament would have also the power to set aside judgements of the former. Dominic Raab justified the introduction of the Bill on recurrent Conservative arguments around restoring parliamentary democracy, strengthening traditional UK rights, and preventing the Supreme Court’s “subordination” to Strasbourg.47 The UK Government also argued that abolishing the duty on courts to interpret domestic legislation compatibly with human rights would increase democratic oversight by ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning.48 Under the brief premiership of Lizz Truss, the Bill of Rights Bill was removed from the parliamentary timetable but in November 2022, with Raab returning to the Ministry of Justice, it was revived, only to disappear again in the turbulence of the late years of the Conservative government. This debate intensified during the 2024 general election campaign, when then Prime Minister Rishi Sunak indicated that the UK might consider withdrawing from the ECHR if the Rwanda asylum scheme continued to face legal obstacles. Following the 2024 election, with the Conservatives back in opposition, the idea resurfaced again. Conservative Party leader Kemi Badenoch suggested that the UK should “look again” at international agreements like the ECHR to assess their compatibility with national interests, particularly concerning border control and sovereignty.

Scottish nation building and human rights

  • 49 Wales is technically not a jurisdiction with its own legal system (as opposed to la (...)
  • 50 Jack Straw, Modernising the Magna Carta, Washington DC: George Washington University, Febru (...)
  • 51 Gordon Brown, The Future of Britishness, London: Fabian Society, January 2006.
  • 52 Neil MacCormick, Questioning Sovereignty. Law, State and Nation in the European Commonwealt (...)

23The failure both of Conservative governments to repatriate human rights and rein in judges, and of reformers to move towards a codified constitution with stronger rights protection owes something at least to the inability to accommodate the devolved jurisdictions.49 This is not merely a matter of post-devolution law. The broader constitutional histories of England and Scotland differ. For example, the Magna Carta (1215), used as the mythical starting point for rights in England, never applied in Scotland as it came five hundred years before the Union. The Declaration of Arbroath (1320), in turn, is relevant only in Scotland. The English Bill of Rights (1689) is not the same as the Scottish Claim of Right (1689) following the so-called Glorious Revolution. These points escaped Jack Straw, Lord Chancellor (of England and Wales) and minister for constitutional reform when, lecturing in the United States on modernising the Magna Carta, he gave a view of British constitutional history that included a list of English milestones as well as developments in the nineteenth and twentieth centuries but failed to mention the acts of union with Wales, Scotland and Ireland; he also incorrectly told his audience that the House of Lords was currently the “final court of appeal for the UK court system”, after referring to 2,000 years of British history.50 Writing in 2006, Gordon Brown cited Runnymede (Magna Carta) but made no reference whatever to non-English constitutional history.51 While it is true that, following the union, many Scottish intellectuals did adopt the English constitutional tradition, that has been reversed since the late twentieth century, with much more emphasis on Scotland’s constitutional traditions. This includes an increasing scepticism about Westminster sovereignty.52

  • 53 Scottish Constitutional Convention 1995, Scotland’s Parliament: Scotland’s Right, E (...)

24Since devolution, Scottish debates on human rights have moved in a different direction from England. The Scottish Constitutional Convention, which brought the Labour and Liberal Democrat parties together behind devolution, advocated the adoption and improvement of international conventions such as the ECHR that protected rights “firmly based on Scottish traditions and values”.53 There have also been appeals to national values but linked to a different political community, Scotland, portrayed as having an internationalist outlook on human rights. There is little complaint in Scotland about “foreign judges” ruling on our laws and few demands to repatriate powers from Strasbourg. As with the debates about Brexit, this may reflect longstanding Scottish assumptions about the plurality of legal systems (Scottish and British in the past) and the way they interact. There is an old tradition of Scottish “legal nationalism”, referring to the resentment among Scottish lawyers about the erosion of Scots legal norms under the influence of English law and the way the UK Parliament was not always sensitive to Scottish difference. The jurisprudence of the European Court of Human Rights and Court of Justice of the European Union have not been similarly systematically targeted. In the early days of devolution, successful challenges were made to existing pre-devolution laws in matters like rights of prisoners or the appointment of sheriffs (judges). Since these old provisions now came within the devolved sphere, they could be struck down by the courts. The Scottish Parliament accepted this without complaint, bringing in new provisions that could withstand the challenge. Nor have Scottish politicians politicised ECHR provisions or made political capital out of ECtHR decisions, although most legal challenges to devolved laws or competence have been made under ECHR and EU provisions rather than the Scotland Act and domestic constitutional arrangements. This contrasts with the systematic exploitation of European human rights provisions by UK politicians, notably in the Home Office, for populist advantage.

  • 54 Scottish Human Rights Commission, Commission Details Concerns About UK Government P (...)

25The Scottish government, Scots lawyers and the Scottish Human Rights Commission have consistently criticised proposals for a British Bill of Rights on the ground that it could undermine devolved powers. There is persistent fear that a British (or UK) Charter might fail to understand the distinct features of Scots law, for instance in the different mix of measures protecting prosecutors and accused in criminal trials. Scotland has a rule requiring that suspects be charged or released within 140 days, while England-and-Wales has stronger guarantees for trial by jury. While there has been some concern that the common law basis of Scots law might be challenged by ECHR and EU provisions, this has not been politically salient. The Scottish Human Rights Commission (SHRC) denounced the last Conservative UK government’s proposal of a Bill of Rights in the strongest terms and defended the way ECHR is entrenched into Scotland’s law, judicial analysis, and legislative competence, arguing that human rights are best protected building on the HRA instead of replacing it. The SHRC has argued that the UK government’s proposals signal an intent to water down human right protections, that it is based on false premises (such as the lack of ownership of human rights), and that it constitutes a regressive proposal that risks undermining 20 years of human rights law and policy development.54

  • 55 The Scotland Declaration on Human Rights is a paradigmatic example of the way Scottish nati (...)

26At the same time, there has been a steady development of a distinct Scottish human rights regime. In spite of assumptions often made at the centre, human rights are not expressly reserved, although the subject of the Human Rights Act is, as are some of the key policy fields. This provides some scope for the incorporation of rights into devolved fields. This should not be seen as a nationalist move in the narrow sense, as it commands a consensus across the parties, but it certainly represents a state in nation-building.55

  • 56 Scottish Human Rights Commission, Submission: Independent Review of the Human Rights Act, C (...)

27The Scottish Human Rights Commission (SHRC) has been an active player in the development of a distinct Scottish human rights regime. Active since 2008, the SHRC fosters human rights awareness, reviews and recommends changes to policies and practices of Scottish public authorities, and intervenes in civil court proceedings. The Commission initiated the first and only National Action Plan on Human Rights in the UK and it seeks to develop “a human rights based approach” that goes beyond mere civil and political rights (such as freedom of expression and the right to vote) to encompass social, economic, and cultural rights. These include the right to adequate standards of living, food, housing, sanitation, water, and education, as well as rights at work.56 Its stated goal is that everyone in Scotland can live with dignity. Work by the commission has included a human rights framework to address historic child abuse and the development of training materials on developing human rights impact assessments for staff in local authorities. Other initiatives have focused on promoting respect for dignity and rights in health and social care, especially concerning the needs of older people through the Care about Rights project. There is an explicit goal to lead by example and showing international leadership in human rights protection, an ambition also repeatedly stated by the Scottish government. A First Minister’s Advisory Group on Human Rights Leadership was set up in 2017.

28The Scottish Parliament has also sought to extend the application of international human rights law in devolved matters. In 2021 it unanimously approved the incorporation of the UN Convention on the Rights of the Child and the European Charter of Local Self Government into Scots law. The UK government, in what was then an unusual step, referred the bills to the Supreme Court as ultra vires. The Court, in a significant judgment, ruled that the bills, while only applying to devolved powers, were unconstitutional on the ground that Westminster retains the power to legislate in devolved areas and so might be caught up in the provisions. Following the “reconsideration” procedure, however, the Rights of the Child Bill was modified to bring it within legislative competence (by applying only to devolved authorities) and it was enacted in 2024.

29While Scotland continues to pursue an agenda of embedding international human rights law in devolved policy, constitutional boundaries and judicial interpretation remain significant checks on how far that ambition can be realised in practice. The Scottish government has delayed the introduction of a long-promised Scottish Human Rights Bill, which was intended to embed a broad range of international human rights treaties into Scots law (including rights not yet incorporated by the UK government), citing legal complexities, especially in the wake of the Supreme Court’s earlier intervention. Additionally, in April 2025, the UK Supreme Court ruled that the definition of “woman” under the Equality Act 2010 refers solely to biological females, prompting the Scottish government to review and potentially overhaul policies related to single-sex spaces and services. The ruling reaffirms that UK-wide legislation constrains how devolved governments can reinterpret rights.

Conclusion: diverging politics

30The entrenchment of the European Convention on Human Rights in the devolution settlement was not an idea that came easily to the Labour Party – which had opposed it in the 1980s – but provided an elegant way of combining the decentralisation of power with uniformity of basic rights. It detached rights from contested issues of national identity, a matter of even greater urgency in Northern Ireland. It encouraged an interpenetration of Scottish, British, and European norms in a multi-level rights regime, paralleling the multilevel arrangements whereby Scotland, Wales, and Northern Ireland were able, within devolved fields, to apply EU rules, exercising the same discretion as member states.

  • 57 Alexander Horne et al., A British Bill of Rights?, House of Commons Library Briefing Paper (...)

31In practice, both doctrine and practice have diverged. The principle and application of the ECHR in Scotland has been almost entirely non-contentious while the particular way it has been applied has allowed for some autonomous development. Matters are very different in England. Entrenchment of European human rights has come under attack from Eurosceptics, the political right, the political left, and exponents of the parliamentary sovereignty. The debate in England about the ECHR and a British Bill of Rights has been conducted largely with reference to English law and politics and the old Westminster constitution. The Commission on a Bill of Rights was “surprised” to learn of the strength of opposition to the proposed Bill in Scotland.57 The early documents make little reference to devolution and the historical milestones cited refer to English constitutional development. In the later proposals, there is an obligatory mention of the smaller nations but it tends to be perfunctory and cited as a problem to be sorted out rather than a starting point for the process.

32The death of the British Bill of Rights idea has been pronounced several times but it keeps on coming back. Were the proposals to proceed further, they would raise serious constitutional questions. Even if the Human Rights Act were repealed, the devolved bodies would still be bound by the ECHR, as that was provided for in the devolution statutes. In such a scenario, human rights would be likely to diverge further across the United Kingdom. The Westminster Parliament could remove the provision by amending the devolution acts but this would trigger the legislative consent convention (Sewel Convention) whereby Westminster will only “normally” legislate in devolved fields or to change develop provisions with the consent of the relevant devolved legislature. It is true that the convention has been over-ridden several times during and after the Brexit process, with the explicit endorsement of the Supreme Court, but to do so, in this case would be highly politically sensitive. The British Bill of Rights would take precedence over the devolution statutes, constraining the competence of the devolved legislatures and governments. Its passage would also trigger the consent procedure, and such consent would almost certainly not be forthcoming.

  • 58 Michael Keating, State and Nation in the United Kingdom: The Fragmented Union, op.c (...)

33Just as Brexit has destabilised the domestic political settlement,58 so proposals to withdraw, wholly or partially, from the ECHR and ECtHR disrupt the multi-level rights regime. This is occurring at a time when ideas about the scope of human rights and the mechanisms for their application are diverging across the United Kingdom. As Brexit and opposition to ECHR are used to create a unitary UK state and nation, so they are serving to rebuild and redefine a distinct Scottish national consciousness, embracing not only nationalists but many unionists favourable to the post-1999 settlement. There are differences of substance, with English political opinion suspicious of enforceable rights as favouring criminals, immigrants and minorities, while opinion within the Scottish Parliament is more liberal. There are also differences in the degree to which rights should be enforceable against governments and parliaments, with Westminster stressing absolute sovereignty, a concept that is much weaker in the Scottish political tradition. There are, lastly, disagreements over the level of application of rights and the relevant national community; Westminster politicians, especially on the Conservative side, stress a unitary “British” nation while in Scotland the focus is on both the sub-state and the supranational level, and there is a tendency to conceptualise the nation as Scotland rather than the United Kingdom. The human rights debate has, thus, exposed the fundamental differences in conceptions of state and nation underpinning the current constitutional deadlock.

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Notes

1 Michael Keating, Re-scaling the European State, Oxford: Oxford University Press, 2013.

2 Thomas Pogge, “Cosmopolitanism and Sovereignty”, in Garrett W. Brown and David Held (eds.), The Cosmopolitanism Reader, Cambridge: Polity, 2010, 114-33.

3 John Stuart Mill, On Liberty, Utilitarianism, and Considerations on Representative Government, London: Dent, 1972.

4 David Miller, On Nationality, Oxford: Oxford University Press, 1995; David Miller, Citizenship and National Identity, Cambridge: Polity, 2000.

5 Richard Bellamy, A Republican Europe of States, Cambridge: Cambridge University Press, 2019.

6 Yael Tamir, Liberal Nationalism, Princeton: Princeton University Press, 1993; Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship, Oxford: Oxford University Press, 2001; David Miller, “The Coherence of Liberal Nationalism”, in Gina Gustavsson and David Miller (eds.), Liberal Nationalism and Its Critics: Normative and Empirical Questions, Oxford: Oxford University Press, 2019, 23-37.

7 Eric Hobsbawm, Nations and Nationalism since 1780, Cambridge: Cambridge University Press, 1995; Ralf Dahrendorf, “Preserving Prosperity”, New Statesman and Society, vol. 13, n° 29, 1995, 36-40.

8 Simon Langlois, “Le Choc des Deux Sociétés Globales”, in Louis Balthazar et al. (eds), Le Québec et la Restructuration du Canada, 1980-1992, Saint-Laurent: Septentrion, 1991, 93-108.

9 A.V. Dicey, Introduction to the Study of the Law of the Constitution, Basingstoke: Macmillan, 1959.

10 Iain McLean, What’s Wrong with the British Constitution?, Oxford: Oxford University Press, 2010.

11 Herbert Butterfield, The Whig Interpretation of History, Harmondsworth: Penguin, 1968.

12 Barry Jones & Michael Keating, Labour and the British State, Oxford: Oxford University Press, 1985.

13 Lord Hailsham, “Elective Dictatorship”, The Richard Dimbleby Lecture Series, London, British Broadcasting Corporation, 1976.

14 Andrew Gamble, The Free Economy and the Strong State: The Politics of Thatcherism, London: Macmillan, 1988.

15 Labour Party, Rights Brought Home: The Human Rights Bill, CM 3782, October 1997.

16 Ibid, 1.14.

17 Bingham Centre for the Rule of Law, A Constitutional Crossroads: Ways Forward for the United Kingdom, London, 2015; Richard Ekins & Graham Gee (eds), Judicial Power and the Left. Notes on a Sceptical Tradition, London: Policy Exchange, 2017.

18 Michael Keating, State and Nation in the United Kingdom: The Fragmented Union, Oxford: Oxford University Press, 2021.

19 As did Ireland and, after 1921, Northern Ireland with a subordinate Parliament.

20 Initially, the National Assembly for Wales lacked powers of primary legislation but that was later changed.

21 Ewart Communications, “Equality, Human Rights and Constitutional Reform in Scotland: A Report for the Equality and Human Rights Commission”, Glasgow, 2013.

22 House of Commons, “The Constitution”, Hansard, Volume 294, col. 350, May 16, 1997.

23 House of Commons, “Human Rights Bill Lord”, Hansard, Volume 306, col. 828, February 16, 1998.

24 Ibid, col. 789.

25 Daniel Cetrà & Coree Brown Swan, “Speaking for ‘Our Precious Union’: Unionist Claims in the Time of Brexit (2016-2020)”, Territory, Politics, Governance, vol. 10, n° 5, 2021, 646-660.

26 Gordon Brown, “Full text of Gordon Brown speech”, Commonwealth Club, February 2007.

27 Mary Arden, Human Rights and European Law: Building New Legal Orders, Oxford: Oxford University Press, 2015.

28 David Cameron, Balancing Freedom and Security – a Modern British Bill of Rights, Centre for Policy Studies, London, June 2006; UK Government, Prevent Strategy, June 2011: <https://www.gov.uk/government/publications/prevent-strategy-2011>.

29 Gordon Brown, My Scotland, Our Britain, London: Simon and Schuster, 2014, 37.

30 Labour Party, The Governance of Britain, CM 7170, July 2007.

31 Ministry of Justice, Rights and Responsibilities: Developing Our Constitutional Framework, CM 7577, 2009.

32 Alice Donald, The Implementation and Impact of the Human Rights Act 1998 in the UK, Doctoral Thesis, Middlesex University Open Access Repository, September 2014.

33 Alice Donald, Developing a Bill of Rights for the UK, Equality and Human Rights Commission, Research Report 51, Spring 2010.

34 The parties in the Scottish Parliament have all been pro-immigration, seeing it as it as an economic and demographic asset rather than a cultural threat. This could change if Reform UK make political progress in Scotland.

35 Dominic Grieve, “Can the Bill of Rights Do Better than the Human Rights Act?”, Middle Temple Hall, London, November 2009.

36 Note that the Coalition Agreement speaks of a “British” Bill of Rights while Commission on a Bill of Rights refers consistently to a “UK” Bill of Rights.

37 UK Government, The Coalition: Our Programme for Government, May 2010, 11.

38 Commission on a Bill of Rights, Discussion paper: Do we need a UK Bill of Rights?, August 2011.

39 Commission on a Bill of Rights, A UK Bill of Rights: The Choice Before Us, December 2012.

40 Christine Bell, Scotland and the British Bill of Rights Proposals, London: The British Academy, 2016: <https://www.thebritishacademy.ac.uk/publications/europe-futures-scotland-and-british-bill-rights-proposals/>.

41 However, while the 2015 Conservative manifesto promised to scrap the HRA, its 2017 manifesto stated that it would not repeal the HRA while the Brexit process was underway, while its 2019 manifesto committed only to update the HRA.

42 Conservative Party, Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws, October 2014.

43 Cited in Alice Donald, The Implementation and Impact of the Human Rights Act 1998 in the UK, op.cit., 62.

44 Michael Gove, 2015. See for example Mark Elliott, “Michael Gove, the Justice Committee and the Human Rights Act”, Public Law for Everyone, 15 July 2015: <https://publiclawforeveryone.com/2015/07/15/michael-gove-the-justice-committee-and-the-human-rights-act/>.

45 Secretary of State for Justice, The Independent Human Rights Act Review, December 2021. The Review found that the HRA had been largely successful and did not advocate for radical change. Rather, it made several recommendations including the development of a programme of civic and constitutional education, focusing on human rights, and amending section 2 of the HRA to clarify the order of priority in which judges should apply domestic law and case law from the ECHR.

46 UK Government, Human Rights Act Reform: A Modern Bill of Rights, December 2021.

47 Dominic Raab, “Ripping up the edicts of European Human Rights judges will make us freer and our streets safer”, The Sun, June 2022.

48 Ministry of Justice, Bill of Rights Bill, June 2022.

49 Wales is technically not a jurisdiction with its own legal system (as opposed to laws applying in Wales) but there is a movement to make it such.

50 Jack Straw, Modernising the Magna Carta, Washington DC: George Washington University, February 2008.

51 Gordon Brown, The Future of Britishness, London: Fabian Society, January 2006.

52 Neil MacCormick, Questioning Sovereignty. Law, State and Nation in the European Commonwealth, Oxford: Oxford University Press, 1999.

53 Scottish Constitutional Convention 1995, Scotland’s Parliament: Scotland’s Right, Edinburgh: Convention of Scottish Local Authorities, 19.

54 Scottish Human Rights Commission, Commission Details Concerns About UK Government Proposals to Replace the Human Rights Act, March 2022.

55 The Scotland Declaration on Human Rights is a paradigmatic example of the way Scottish nationhood is often linked to human rights. The Declaration, run by the Scottish Council for Voluntary Organisations and Human Rights Consortium Scotland with support from institutions including the SHRC, emphatically states that human rights and equalities must remain at the heart of Scottish society despite Brexit. Signatories include trade unions, faith groups, national charities, and several professional bodies.

56 Scottish Human Rights Commission, Submission: Independent Review of the Human Rights Act, Call for Evidence, March 2021.

57 Alexander Horne et al., A British Bill of Rights?, House of Commons Library Briefing Paper 7193, London: House of Commons Library, 2015.

58 Michael Keating, State and Nation in the United Kingdom: The Fragmented Union, op.cit.

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Michael Keating et Daniel Cetrà, « Nationalising Human Rights: British versus Scottish Perspectives »Revue LISA/LISA e-journal [En ligne], vol.23-n°60 | 2025, mis en ligne le 01 décembre 2025, consulté le 17 décembre 2025. URL : http://journals.openedition.org/lisa/17758 ; DOI : https://doi.org/10.4000/157i2

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Auteurs

Michael Keating



Michael Keating is Emeritus Professor of Politics at the University of Aberdeen and has taught in universities in Scotland, England, Canada, the United States and Spain and at European University Institute in Florence. He has written or edited some forty books and numerous articles on territorial politics, nationalism, Europe and public policy. His most recent book is State and Nation in the United Kingdom: The Fractured Union (Oxford University Press, 2021).

Daniel Cetrà



Daniel Cetrà is a Ramón y Cajal Senior Research Fellow in Political Science at the University of Barcelona. He has published extensively on nationalism, minority rights, and Scottish and UK politics in journals including West European Politics; Territory, Politics, Governance; Nations and Nationalism: The Journal of Common Market Studies; Ethnicities; and The Political Quarterly. He is also the author of Nationalism, Liberalism and Language in Catalonia and Flanders (Palgrave Macmillan, 2019).

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