UK Parliament Joint Committee on Human Rights - legislative scrutiny: Bill of Rights Bill - evidence submitted by the Scottish Government

The Human Rights Act and the devolved nations

20. How would repealing the Human Rights Act and replacing it with the Bill of Rights as proposed impact human rights protections in Northern Ireland, Scotland and Wales?

Scottish Government Response

The HRA is central to the devolution settlement in Scotland^[37]. Its repeal will alter the competence of Scotland's democratic institutions and diminish the rights enjoyed by individual members of Scottish society. Both changes are unwelcome. In contrast to UK ministers, the Scottish Government has no desire to acquire new powers which would permit it to circumvent ECHR obligations.

21. Should the Government seek consent from the devolved legislatures before enacting the Bill and, if so, why?

Scottish Government Response

The requirement for legislative consent is central to the constitutional settlement established by the Scotland Act 1998^[38].

The Scottish Government is clear that consent must be sought for all UK legislation that would be within the legislative competence of the Scottish Parliament or which alters legislative or executive competence. Where consent is not granted, the relevant provisions (or as the case may be, the Bill as a whole) should not extend to Scotland. The significance of the HRA is such that the imposition of any changes affecting Scotland, without the consent of the Scottish Parliament, would profoundly undermine the Scottish Parliament and Scotland's devolution settlement.

The Scottish Government's preferred outcome, in this instance, would be for the UK Parliament to decline to pass the Bill of Rights Bill. The HRA should remain in force. Failing that, the provisions of the Bill should not be extended to Scotland. The Scottish Parliament will be asked to reach a definitive view on the question of legislative consent in due course^[39].

Scottish Government

August 2022