100. Rather surprisingly, the devolution of power
within the UK is not mentioned in the Governance of Britain
Green Paper. Reviewing the Green Paper, the Political
Studies Association stated, "When it comes to devolution
the Green Paper has a primary focus on the need to consider its
implications for Britishness".
101. In the Constitution Unit's response to the
Green Paper, Professor Robert Hazell stated:
The Green Paper is generally rather restrained on
issues connected with devolution. One area of concern is the proposals
for a British statement of values and a British bill of rights.
These suggest that consultation will be directly with the general
public across the UK, but not their governments. Presumably, however,
any statement or bill will (to the extent it is binding) be binding
on the devolved administrations and legislatures as well as UK-level
institutions. If that is to be the case, those devolved institutions
also need to be involved in the process of formulating the statement
or bill, and to agree to it. Otherwise, the introduction of the
statement or bill risks being seen as an imposition on the devolved
institutions, and provoking a serious breach in relations with
102. Professor Hazell went on to note that a
similar issue arose in Canada during the introduction of the Canadian
Charter of Rights and Freedoms without Quebec's consent, which
led to Quebec refusing to accept the new constitution as a whole.
According to Professor Hazell, this "has proved to be an
enduring sore point in Quebec-Canada relations generally".
He recommended that devolved institutions be involved in formulating
any statement or Bill of Rights, and their agreement obtained,
in order to avoid this.
103. We asked Kenny MacAskill MSP, Cabinet Secretary
for Justice in the Scottish Government, about the extent to which
the Scottish Government had been involved in discussions on a
Bill of Rights. He said:
Not really a great deal at all and I think the fact
that devolution is not mentioned is perhaps an indicator of that.
104. The Justice Secretary accepted that the
Government had "to ensure that what we say does not collide
with the devolution settlement and, if there is a question of
that, it has the consent of the devolved administrations".
We agree. A
UK Bill of Rights must be based on a detailed dialogue between
central government and the devolved administrations. We note that
this dialogue does not yet seem to have begun.
105. The situation is further complicated by
the work being undertaken to draw up a Northern Ireland Bill of
Rights, as a result of the Belfast (Good Friday) Agreement 1998.
Professor Brice Dickson and Professor Chris Sidoti, Chair of the
Northern Ireland Bill of Rights Forum, who have both been heavily
involved in this initiative, argued that the two processes could
be run in parallel and be mutually reinforcing.
Professor Dickson explained how the two Bills of Rights could
complement each other:
There should be a Bill of Rights for the whole of
the United Kingdom
each separate legal system within the
UK should then be free to devise an additional Bill of Rights
going further than the national Bill of Rights has gone and dealing
with particular matters that are of concern to that legal system.
These additional Bills of Rights would best be enacted as Westminster
legislation, thereby placing them beyond repeal or amendment by
any devolved legislature.
106. Emphasising the need for dialogue with the
UK Government, Professor Dickson said:
If certain rights
are to be protected by the
Bill of Rights for Northern Ireland or for the UK, regard should
be had to the fact that devolved administrations have responsibilities
in those areas
so it would be appropriate at the very least
that the Assembly in Northern Ireland consciously debated the
enactment of any such protection of rights that would have effect
in Northern Ireland
I am in favour of a national Bill of
Rights that protects core rights but if the devolved administrations
want to go further and protect additional rights for their part
of the country then well and good.
107. The devolution settlement
creates certain difficulties for a UK Bill of Rights, but we do
not accept that it creates an insuperable obstacle to such a Bill.
the Universal Declaration of Human Rights, human rights norms
have gradually become embedded at global, regional and national
level. Provided the hierarchy between these levels is clear, there
is a positive virtue in the broadly defined rights in the international
standards being fleshed out into more concrete norms and standards
at the regional, national and sub-national level. Each Bill of
Rights, from the global through the regional to the national and
sub-national levels, becomes more specific and detailed in its
provisions, and is free to be more generous but must not fall
below the minimum floor of the higher level of protection.
It is common for federated states, such as Canada, the US and
Germany, to have both federal Bills of Rights and state-level
Bills of Rights, and for any questions about the hierarchical
relationship between these different levels of rights protection
to be resolved by the federation's Constitutional Court. In
our view, the devolution settlement creates fewer difficulties
than face federated states in this respect, because constitutional
matters, including human rights, are not devolved matters.
108. Nevertheless, devolution raises complex
issues, particularly if a UK Bill of Rights concerned devolved
matters. Professor Carol Harlow of the London School of Economics
Human rights are not, of course, a devolved issue,
a division of functions that perhaps remains largely uncontroversial
so long as the matter is governed by the Convention and our shared
heritage in that respect. Were this to change and more particularly
if a proposed new text were to penetrate deeply into economic
and social rights, devolved areas would be involved
further regionalisation is desirable and what the relationship
of regional texts could be with the ECHR and Strasbourg courts
are very difficult and delicate questions.
109. We received some helpful evidence from the
Law Society of Scotland about the difficulties of a UK Bill of
Rights in a Scottish context. Some well known civil rights south
of the border, such as the right to trial by jury, are not part
of Scotland's constitutional heritage.
In addition, an amendment to the Scotland Act 1998 would be required
to ensure that provisions of a UK Bill of Rights relating to devolved
matters could not be repealed or derogated from by the Scottish
110. As we have noted, the Justice Secretary
spoke of some "tricky" drafting issues, rather than
matters of principle, arising from the devolution settlement.
We agree with the Government
that the UK's devolved governance arrangements do not preclude
a UK Bill of Rights from being drawn up. We also agree with Professor
Dickson that having Bills of Rights at both the national and the
devolved levels is desirable. Early engagement with the devolved
administrations is necessary, however, to deal with areas in a
UK Bill of Rights which relate to devolved matters and to address
differences between the UK's three legal jurisdictions.