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Notes
Home Office, Rights Brought Home: The Human Rights Bill, CM3782, The Stationery Office, October 1997, 2.13. For an in-depth discussion of the challenge which the HRA embodied of reconciling the idea of a bill of rights with the doctrine of parliamentary sovereignty, see Vernon Bogdanor, The New British Constitution, Oxford and Portland: Hart Publishing, 2009, 58-62.
Section 29(2)(d) of the Scotland Act 1998 provides that an Act of the Scottish Parliament is outside the competence of the Parliament if it is incompatible with any of the Convention rights or with Community law, while Section 57(2) states that “a member of the Scottish Executive has no power to make any subordinate legislation or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law”.
Scottish Human Rights Commission, Submission: UK Government Consultation to reform the Human Rights Act 1998, proposals for “A Modern Bill of Rights”, March 2022, 12.
Conservative Party, Invitation to Join the Government of Britain, 2010, 79.
The Liberal Democrat manifesto for the general election of 2010 contained the commitment to “ensure that everyone has the same protections under the law by protecting the Human Rights Act”. Change that Works for You, 94.
Conservative Party Conference, Birmingham, 1 October 2014.
Conservative Party, Strong Leadership, A Clear Economic Plan, A Brighter, More Secure Future, 2015, 58 & 60.
Conservative Party, Get Brexit Done – Unleash Britain’s Potential, 2019, 48.
Scottish National Party, Elect a Local Champion, Manifesto 2010, 16.
The Centre for Policy Studies is the think-tank founded in 1974 by Keith Joseph and Margaret Thatcher.
David Cameron, Balancing Freedom and Security : A Modern British Bill of Rights, Speech to the Centre for Policy Studies, 26 June 2006.
Ibid.
A group of nine Afghan nationals arrived in the UK in February 2000 after they had hijacked a plane on an internal flight in Afghanistan in order to flee from the Taliban regime. They were convicted in December 2001, but their conviction was quashed in 2003 by the Court of Appeal which found that they had been acting under duress. In June 2004, a panel of Immigration Adjudicators upheld the Afghans nationals’ claim for humanitarian protection under Article 3 of the ECHR. At the time, the Home Secretary applied to the Immigration Appeal Tribunal for permission to appeal against the adjudicators’ decision, but permission was refused on the ground that the decision of the adjudicators was based on factual findings. The Home Secretary could then have appealed to the High Court for a judicial review of the decision by the Immigration Appeal Tribunal to refuse the appeal, but chose not to. Instead, the nine Afghan hijackers were granted temporary admission to the UK in November 2005. The High Court ruling in 2006 did not entitle them to full refugee status, but allowed them to work in the UK.
House of Commons, Public Accounts Committee, Returning Failed Asylum Applicants, Thirty-Fourth Report of Session 2005-2006, HC 620, 14 March 2006.
For a discussion of the potential for conflict brought about by the HRA between the government and the judiciary in matters concerning the government’s asylum and counter-terrorism policies, see BOGDANOR, Vernon, The New British Constitution, op.cit., 68-73.
Department for Constitutional Affairs, Review of the Implementation of the HRA, July 2006, 37-39. The Home Office review, meanwhile, was not published. Instead, two papers were published, both in July 2006, the first entitled Rebalancing the Criminal Justice System in Favour of the Law-Abiding Majority, and the second entitled Fair, effective, transparent and trusted – Rebuilding confidence in our immigration system.
United Kingdom Government, The Governance of Britain, Cm 7170, July 2007, para. 210.
Liberal Democrats, For the People, By the People, Policy Paper 83, August 2007, 4.2.4.
Ibid., 4.2.3.
House of Lords, House of Commons, Joint Committee on Human Rights, A Bill of Rights for the UK?, Twenty-ninth Report of Session 2007-2008, Volume II Oral and Written Evidence, HL Paper 161-II, HC 150-II, 10 August 2008, EV 59.
House of Lords, House of Commons, Joint Committee on Human Rights, A Bill of Rights for the UK?, Twenty-ninth Report of Session 2007-2008, HL Paper 161-I, HC 150-I, 10 August 2008, para.100.
Ibid., paras. 104 & 107.
Ministry of Justice, Rights and Responsibilities: developing our constitutional framework, Cm 7577, March 2009, 4.32-4.42.
British Labour Party, A Future Fair for All, 2010, 9:4.
British Conservative Party, Invitation to Join the Government of Britain, 2010, 79.
The Liberal-Democrat manifesto for the 2010 general election contained a pledge to ensure the same protections under the law for everyone by protecting the HRA.
United Kingdom Government, The Coalition : our programme for government, May 2010, 11.
Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us, Volume 1, December 2012, para.74.
Scottish Government, Response to the UK Bill of Rights discussion paper -2011, 16 November 2011. 1; Scottish Government, Response to second consultation on a UK Bill of Rights -2012, 27 September 2012, 2.
Scottish Government, Response to the UK Bill of Rights discussion paper -2011, op.cit., 2.
Scottish Government, Response to the UK Bill of Rights discussion paper-2011, op.cit., 3; Scottish Government, Response to second consultation on a UK Bill of Rights-2012, op.cit., 5.
Conservative Party, Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws, October 2014.
Scottish National Party, Stronger for Scotland, 2015, 23.
Conservative Party, Forward Together – Our Plan for a Stronger Britain and a Prosperous Future, 2017, 37. Yet, as Home Secretary in David Cameron’s Coalition government, Theresa May’s ambition had initially been to withdraw from the ECHR, which she argued was more vital and beneficial to the UK than leaving the EU.
Conservative Party, Get Brexit Done – Unleash Britain’s Potential, 2019, 48.
Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights – A consultation to reform the Human Rights Act, CP 588, December 2021.
Scottish Government, Human Rights Act - The UK Government’s consultation paper on “Human Rights Act Reform: A Modern Bill Of Rights” – Response by the Scottish Government, 8 March 2022, para.3.
Scottish Government, Response to the UK Independent Human Rights Act Review’s Call for Evidence, March 2021, para. 117.
Ibid., para. 39. The claim was corroborated by the reference to the two government motions presented at Holyrood in November 2014 (S4M-11484) and January 2017 (S5M-03297) and adopted with the votes of four of the five parties represented in the Scottish Parliament, the Conservative Party being the only party to vote against the motions. The first motion renewed the Parliament’s support fo the HRA which provided effective implementation of the ECHR into Scots law, while the second called on the UK government not to take action which would weaken or undermine participation in international human rights mechanisms such as the ECHR, and committed the Parliament to acting “to the full extent of its powers to ensure that the rights and interests of all of the people of Scotland are safeguarded and protected.” For the minutes of the debates on the two motions, see Scottish Parliament, Official Report, 11 November 2014, col. 22-68, and Scottish Parliament, Official Report, 10 January 2017, col. 10-67.
Scotland Act 1998, Schedule 4 para.1(2)(f).
Chris Himsworth, Devolved Human Rights, n° 2011/22, Edinburgh School of Law Working Paper Series, 2011, 7-8.
Scotland Act 1998, Schedule 5, para. 7(1).
Scotland Act 1998, Schedule 5, Section L2.
The EHRC was set up to replace three statutory equality commissions – the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission. Both the EHRC and the SHRC are National Human Rights Institutions (NHRI) within the United Nations system. Consequently, they can report directly to the United Nations on human rights issues, and make direct contributions to the UN Human Rights Council.
Equality Act 2006, Section 9(1).
Ibid., Section 7(1).
Ibid., Section 7(4).
Scottish Commission for Human Rights Act 2006, Sections 2(1), 3(1) and 4(1).
Equality and Human Rights Commission, Memorandum of Understanding between the Equality and Human Rights Commission, the Northern Ireland Human Rights Commission and the Scottish Human Rights Commission, 5 April 2010, para.1.
Ibid., paras.4 &5.
Equality and Human Rights Commission, Memorandum of Understanding between the Scottish Human Rights Commission and the Equality and Human Rights Commission, 1 December 2016, para.1.
Ibid., para.4.
Ibid., para.6.
Ibid., para.12.
Scottish Human Rights Commission, Submission: UK Government Consultation to reform the Human Rights Act 1998, proposals for “A Modern Bill of Rights”, 9 March 2022, paras.1-3.
Equality and Human Rights Commission, Response to UK consultation on Human Rights Act Reform - a Modern Bill of Rights, 8 March 2022, 3.
Equality and Human Rights Commission, Response to UK consultation on Human Rights Act Reform - a Modern Bill of Rights, op.cit., 4.
Equality and Human Rights Commission, Response of the Equality and Human Rights Commission to the Consultation, 18 October 2018, para.4.
Equality and Human Rights Commission, Response to the Review of the Gender Recognition Act 2004 Consultation, 1 March 2018, Question 1.
Equality and Human Rights Commission, Letter to the Cabinet Secretary for Social Justice, Housing and Local Government, 26 January 2022.
Ibid.
Scottish Human Rights Commission, Statement: Clarifying the mandates of the Scottish Human Rights Commission and the Equality and Human Rights Commission in Scotland, 24 February 2022.
Scottish Human Rights Commission, Strategic Plan 2008-2012, July 2009, 7. The third goal centred on good practice as the SHRC pledged to adopt a human rights-based approach to its own work.
Scottish Human Rights Commission, Scotland’s National Action Plan for Human Rights 2013-2017, 2013, 17.
Ibid., 6.
Quoted on the SHRC website, at <https://www.scottishhumanrights.com/news/launch-of-scotlands-national-action-plan-for-human-rights/>, accessed on 1 October 2022.
Scottish Human Rights Commission, Scotland’s National Action Plan for Human Rights, op.cit, 10 & 19.
Scottish Parliament, Official Report, 10 December 2013, col. 25461.
Speech at the Pearce Institute, Glasgow Govan, 23 September 2015.
Scottish Government, A Nation with Ambition – the Government’s programme for Scotland, 2017-18, September 2017, 21.
Ibid., 113.
First Minister’s Advisory Group on Human Rights Leadership, Recommendations for a new human rights framework to improve people’s lives, December 2018, 4.
First Minister’s Advisory Group on Human Rights Leadership, op.cit., 1.
Ibid., 31.
National Taskforce for Human Rights Leadership, National Taskforce for Human Rights Leadership Report, March 2021, 17.
Scottish Government, Programme for Government – Protecting Scotland, Renewing Scotland, September 2020, 14.
Equalities and Human Rights Committee, Scottish Parliament, Getting Rights Right: Human Rights and the Scottish Parliament, 6th Report 2018, SP Paper 431, 28 November 2018, 8.
While all parliamentary committees are responsible for promoting and protecting the human rights that fall within their remit, the fact of adding human rights explicitly to the remit of a single committee was a clear indication on the part of the Scottish Parliament of its willingness to become a “human rights guarantor”.
Commission on Parliamentary Reform, Your Parliament, Your Voice, 20 June 2017, Recommendation 30.
Equalities and Human Rights Committee, Scottish Parliament, Getting Rights Right: Human Rights and the Scottish Parliament, op.cit., 2.
Equalities and Human Rights Committee, Scottish Parliament, Getting Rights Right: Human Rights and the Scottish Parliament, op.cit., 1-2.
The Scotland Act 1998 contained a list of the powers reserved to Westminster. Consequently, anything which did not feature in the list was devolved. Regarding local elections, the only aspect which was reserved to Westminster was the franchise. There was therefore no need for a Section 30 Order from Westminster for the Scottish government to introduce legislation to change the electoral system.
The Edinburgh Agreement signed on 15 October 2012 by the British and the Scottish governments included a draft Section 30 Order devolving to the Scottish Parliament the competence to legislate for a referendum on whether Scotland should become independent from the rest of the United Kingdom, and a Memorandum of Agreement. While the Memorandum of Agreement established that both governments “agreed that anyone entitled to vote in the Scottish Parliament and local government elections in Scotland would be able to vote in the referendum”, it also acknowledged that the final decision on the question of extending the franchise to include 16- and 17- year-olds belonged to the Scottish government.
The Scottish Elections (Reduction of Voting Age) Act 2015 was passed unanimously by the Scottish Parliament.
The Scotland Act 2016 contained a provision for a super-majority requirement for certain Bills deemed to deal with “protected subject-matters”, including elections. Consequently, any Bill aimed at introducing electoral reform required to be passed by a super-majority of 2/3s of the 129 MSPs, i.e. 86 MSPs.
Scottish Government, Delivering for Today, Investing for Tomorrow- The Government’s Programme for Scotland 2018-19, September 2018, 28.
Scottish Government, Consultation on Electoral Reform, December 2017, 24.
Equalities and Human Rights Committee, Scottish Parliament, Prisoner Voting in Scotland, 3rd Report 2018, SP Paper 315, 14 May 2018.
In 2005, in the case of Hirst v the United Kingdom, the European Court of Human Rights ruled that the UK’s blanket ban on prisoner voting rights was in breach of Article 3 of Protocol 1 of the ECHR.
The measure came into effect in the summer of 2018.
Scottish Parliament, Official Report, 27 June 2013, col. 21795-21797.
Scottish Government, Consultation on Prisoner Voting – Analysis of Responses, June 2019.
Scottish Government, New Scots Refugee Integration Strategy 2018-2022, 10 January 2018, 11.
It is worth underlining that at Stage 2, when the Bill was being examined by the Standards, Procedures and Public Appointments Committee, Mark Ruskell, Deputy Convener of the committee, had lodged a similar amendment which was voted down by the committee by 5 votes to 2.
Scottish Parliament, Official Report, Session 5, 20 February 2020, col. 59-73. The amendment was rejected by 87 votes to 32.
Mark Ruskell, who tabled the amendment in the name of the Scottish Greens, cited the example of the Welsh Parliament which in their discussion on prisoner voting had drawn the line at sentences of 4 years or less, on the basis that it marked a clear distinction between short-term sentences and sentences of over 4 years for serious offences such as rape, attempted rape, homicide, etc..
Indeed, under the Wales Act 2017, full legislative competence over parliamentary and local government elections was also transferred to the Welsh Parliament, and the Welsh government introduced legislation on electoral reform. Consequently, the Senedd and Elections (Wales) Act 2020 and the Local Government and Elections (Wales) Act 2021 brought voting age down to 16, and also extended the franchise to qualified foreign nationals for local government and Welsh Parliament elections. The provisions came into force for the Senedd election of 2021 and the local elections of 2022.
The Bill did not create new rights, but listed the Convention rights to which it gave effect.
Scottish Human Rights Commission, State of the Nation: Civil and Political Rights in Scotland, 2024, Foreword from the Chair of the Commission.
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