Human Rights Act Repeal and Devolution

There has already been discussion of the implications of repealing the Human Rights Act (and leaving the ECHR) on devolution. Prof Christine Bell highlights that the UK government will need the consent of the devolved legislatures to proceed. 
The Conservative government’s proposed repeal of the Human Rights Act (HRA) and possible withdrawal from the European Convention on Human Rights (ECHR) and Council of Europe, would have far-reaching implications for the UK’s devolved administrations and relations with the Republic of Ireland. These run deep into the constitutional marrow of the nations involved; so deep that it is difficult to see how repeal of the Act could take place without their consent. The government’s difficulties in relation to, especially, Scotland and Northern Ireland are significant but different and worth reviewing separately. 
In Scotland, the ECHR – which the HRA establishes in UK law – is written into the legislation that created the devolved administration in the first place. The Scotland Act 1998 gives powers to the Scottish Parliament so long as it complies with the ECHR - among other things. Repealing the HRA would not, in and of itself, remove that obligation. While it would be technically possible to keep the ECHR as a framework for devolved government, even if the UK were not a member of the Council of Europe and were no longer bound by the treaty, it would be very strange to have it form a part of the constitutional basis of devolution.  Moreover, it could lead to chronic uncertainty: withdrawal from the ECHR and the European Court of Human Rights’ (ECtHR) supervision of rights, would be likely to make it unclear how ‘compliance’ with the ECHR was to be evaluated, and whether interpretations by the Strasbourg Courts were to be taken into account or not.
There are further devolved complications with repealing the Human Rights Act.  Human rights are partially devolved in Scotland, where the devolved institutions have the power to promote rights (the Scottish Parliament, for example, has set up a Scottish Human Rights Commission).  Therefore, any unilateral repeal of the HRA by Westminster would be likely to violate the Sewell Convention, whereby the Westminster government will ‘not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament’.  Similar understandings apply through memoranda of understandings with each of the devolved legislatures in the UK.  
The repeal of the HRA also raises problems in Northern Ireland, where a similar commitment not to legislate against the wishes of the NI Assembly exists.  Successive UK governments have considered proposed amendments to the HRA for Northern Ireland, to require a legislative consent motion, arguing that their hands are tied on human rights legislation if the devolved power-sharing government do not consent.  In Northern Ireland, human rights are even further devolved than in Scotland, and the Human Rights Act is explicitly mentioned in the Northern Ireland Act 1998, meaning that it would have to be amended immediately if the Human Rights Act were repealed, with a number of consequential legal amendments in other devolved legislation.  
Additionally, the commitment to the Human Rights Act mechanism was also put in detail into the Belfast or Good Friday Agreement which forms the constitutional DNA of the Northern Ireland Act 1998.  The Agreement has also been found by courts to be, in effect, the ‘constitutional underpinning’ of the Northern Ireland Act. 
The UK government as part of the peace agreement also signed a legally binding international treaty with the Republic of Ireland government, where both committed to implement the Agreement commitments that required action on each government’s part.  The Republic of Ireland, as part its implementation of the Agreement and Treaty, changed its Constitution removing the historic claims to jurisdiction over Northern Ireland, and incorporated the ECHR into its law, as part of the reciprocal agreement to ‘match’ human rights provisions in the UK (in part to assuage Unionist concerns). Any unilateral move away from these commitments carries major democratic legitimacy and bad faith consequences, with deep and problematic historical resonances. The Irish government has expressed its ‘dismay’ at the proposals.  In fact normal UK practice would be to take treaty obligations extremely seriously and not to unilaterally breach them because they have become politically difficult.  
So, to summarise, repeal of the Human Rights Act would require the consent of the devolved legislatures and the Republic of Ireland.  Even if such consent was forthcoming, moving away from the Human Rights Act could be considered a breach of the Belfast or Good Friday Agreement by the ‘people of the island of Ireland, North and South’, who formally ratified the Agreement with its explicit commitment to the Human Rights Act mechanism, in a referendum, and could be similarly so seen by all those who voted for devolution in Scotland and Wales, who view rights as part of their common and devolved constitutional framework.  Paradoxically, repeal of the Human Rights Act would also dismantle one of the increasingly few value-driven components of the Union that currently act as its fast-eroding glue.
Christine Bell is Professor of Constitutional Law and Director of the Global Justice Academy at the University of Edinburgh.

Comments policy

All comments posted on the site via Disqus are automatically published. Additionally comments are sent to moderators for checking and removal if necessary. We encourage open debate and real time commenting on the website. The Centre on Constitutional Change cannot be held responsible for any content posted by users. Any complaints about comments on the site should be sent to

Christine Bell's picture
post by Christine Bell
University of Edinburgh
17th June 2015

Latest blogs

  • 12th February 2019

    CCC Fellow Professor Daniel Wincott of Cardiff University examines how Brexit processes have already reshaped territorial politics in the UK and changed its territorial constitution.

  • 7th February 2019

    The future of agriculture policy across the United Kingdom after Brexit is uncertain and risky, according to a new paper by Professor Michael Keating of the Centre on Constitutional Change. Reforms of the EU’s Common Agricultural Policy over recent years have shifted the emphasis from farming to the broader concept of rural policy. As member states have gained more discretion in applying policy, the nations of the UK have also diverged, according to local conditions and preferences.

  • 4th February 2019

    In our latest report for the "Repatriation of Competences: Implications for Devolution" project, Professor Nicola McEwen and Dr Alexandra Remond examine how, in the longer term, Brexit poses significant risks for the climate and energy ambitions of the devolved nations. These include the loss of European Structural and Investment Funds targeted at climate and low carbon energy policies, from which the devolved territories have benefited disproportionately. European Investment Bank loan funding, which has financed high risk renewables projects, especially in Scotland, may also no longer be as accessible, while future access to research and innovation funding remains uncertain. The removal of the EU policy framework, which has incentivised the low carbon ambitions of the devolved nations may also result in lost opportunities.

  • 1st February 2019

    The outcome of the various Commons votes this week left certain only that the Government would either secure an amended deal and put it to a meaningful vote on Wednesday 13 February, or in the overwhelmingly likely absence of this make a further statement that day and table another amendable motion for the following day, the Groundhog Day that may lead to a ‘St Valentine’s Day Massacre’ for one side or the other. Richard Parry assesses the further two-week pause in parliamentary action on Brexit

  • 24th January 2019

    Concerns about the implications of the Irish backstop for the integrity of the domestic Union contributed significantly to the scale of the 118-strong backbench rebellion that led to Theresa May’s Withdrawal Agreement being defeated last week, by the extraordinary margin of 432 to 202. What do the arguments made during the Commons debate tell us about the nature of the ‘unionism’ that prevails in the contemporary Conservative Party?

Read More Posts