European Court of Human Rights and Scottish Law

there is quite common knowledge that should the United Kingdom seek to withdraw from the EU, it is quite likely that Scotland would seek to leave the UK and join the EU. The earliest that could happen is 2020 or so if it requires a referendum in 2017 and probably a period of disengagement.

However newly expressed European policy from the Tory party makes the current situation even more interesting. Although there is a strong case for believing that the announcements are politics rather than policy (with the aim of out UKIPing UKIP), if implemented it could see the UK government withdrawing from the Convention on Human Rights and setting up a watered down British Bill of Rights written to meet Tory standards.

There are two considerations here- Judicial Independence and International relations. The latter are not a devolved power (although the SNP has stretched the definition to its limits in the past seven years, mainly to irritate Westminster). The former is not just a Scottish power, it is that by historic practice, not by devolution. The Scottish Justice system has never been under Westminster control. Only in the past few decades when European issues have been considered has the House of Lords and latterly the Supreme Court had any intervention in Scottish legal matters.

So should the Tories withdraw from the EConHR and deny the ECtHR rights to act over ‘British’ matters,

1/ would the Council of Europe consider Scotland as a devolved nation remaining a signatory to the Convention?
2/ what would England and Wales do about Scotland remaining under the EConHR with the prospect of people in trouble with English law moving north to avoid the British Bill of Limited Rights?

This is completely inaccurate.

The House of Lords had appellate authority over the Scottish courts since the Union. The first Scottish appeal in a civil matter was heard by the Lords in 1708. The first Scottish appeal in a criminal matter was heard in 1713. However in 1781 the Lords agreed not to hear any further criminal appeals. From that point until the abolition of the Lords’ appellate jurisdiction, they had jurisdiction to hear any appeal from the Scottish courts, except in criminal matters. The new Supreme Court of the United Kingdom continues to have that same broad jurisdiction over appeals from Scottish courts, except in criminal matters.

As well, the Judicial Committee of the Privy Council (the Law Lords wearing a different hat) also had jurisdiction over devolution issues. That jurisdiction was also transferred to the new Supreme Court.


I was thinking of things like prisoner’s voting rights, rights to jury trial, criminal procedure, rights to residence, etc. There is an interesting potential conflict there.

Supposing a Jamaican citizen, living in Scotland since he was twelve was convicted of serious assault and the UK Government decided that the person should be deported because of his conviction in Scotland. Now Scotland seems to have a different take on these matters than the UK- there has already been conflict over such cases while the UK is still in the EConHR. If the Scottish Parliament said that it wished its justice system to be overseen by the Council of Europe as for every other country save England and Belarus, what would be the outcome?

I suspect that niggles like this will continue for years until there is a subsequent referendum with the SNP so long as it stays in Government (and polls suggest that!) picking away at such issues.

It is also commonly believed that if the EU outlaws haggis on the grounds of animal cruelty, Scotland will leave both the UK and EU by 2075 to establish a Tartaniphate.

There are lots of neat scenarios like this.

Niggles? Sheesh, you’re worse than Lloyd George.

Scotland is NOT and not likely to be anytime soon a nation state. It is a subnational entity. Subnational entities in International relations cannot enter into agreements with each other or other countries or international bodies without the permission of the nation state itself. A good example of that would be the Lockerbie Trial in the Netherlands, where a special Court was established in The Hague to try two Libyan men. The agreement creating that Court was signed by the United Kingdom, not by the Scottish Executive (as it then was). While Scottish government bodies would have done most of the necessary work needed, it was only since they had been permitted to do by. Westminster.

So the answer it the OP is, if the UK leaves, all of it’s constituent parts leave, be it Scotland or Shropshire.

Ah, but Pjen has it on good authority that if the UK leaves the EU, Scotland will leave the UK. It’s common knowledge, after all.

Agreed, but we are talking politics here, not law.

Additionally, given that the proposed ‘British Bill of Limited Rights’ covers several areas devolved to the Scottish Parliament, what happens when a ‘Scottish Bill of Extended Rights’ is more liberal?

I suspect we shall see many forays like this in the coming years.

It is worth remembering that the UK Government set up a Scottish Administration and it was called that for eight years. From 2007 the SNP coalition changed the name to the Scottish Government against arguments from Westminster that it did not have the power to do that. No one now calls it the Scottish Administration anymore.

No. Try reading what I said. I said that should the UK leave the EU it is “quite likely” that Scotland would seek a path to continued membership, probably via a further referendum. The EU is extremely popular in most of Scotland!

But if it does leave it is one more straw on the camel’s back which is the link between Scotland and England.

When you make such an egregiously wrong statement about the court structure in your own country, with that error seemingly based on your own political ideology and wishes rather than facts, you will pardon me for entirely discounting your predictions about future conduct, especially when qualified as “common knowledge” and “quite likely.”

In my opinion, you seem to magnify everything that may point towards Scottish independence, and heavily discount anything that may support the Union. I don’t find those trends particularly helpful in furthering a reasoned debate.

ISTM someone is grasping at straws.

No-one called it the Scottish Administration then. It was the Scottish Executive.

I’m not sure if it’s clear for you, but it’s not for most people, so I will mention it :
The EU and the Council of Europe are two unrelated international organizations, apart from the fact they’re both made up of European countries. Withdrawing for the EU has no consequence whatsoever on Council of Europe membership. And the European Court of Human Rights is an organ of the Council of Europe.

Most of the judicial rulings people are complaining about because they infringe on whaterver country’s sovereignty have nothing to do with the EU, and might very well have been decided by a Russian judge.

The EU may accede yet as a body to the ECHR, and that would make it part of EU law.

True, but the bottom line is that the withdrawal of the UK from the EU, as posited by Pjen, would not automatically mean Britain withdraws from the European Covenant on Human Rights, which is the bugbear de jour Pjen raises in the rest of the OP.

I stand by my earlier comment in post # 10.

Although current proposals by the Tories are to eliminate or at least reduce the ability of the European Court of Human Rights to enforce the Convention in the UK, essentially making it a dead letter here.

Sure, but that seems to be a different issue than the one Pjen is raising. The OP assumes that if the UK were to leave the EU, Scottish independence follows as the night the day

But what Pjen then goes on to talk about is the European Convention on Human Rights, as if that’s the same thing as withdrawal from the EU.

I am aware of that. Membership of the EU is dependent on being a member of the Council o Europe however.

The UK will remain a member of the Council of Europe.

Just to be clear here, the ECtHR cannot enforce the Convention as it stands. It doesn’t have any enforcement powers, short of expulsion from the Council of Europe - the nuclear option, which it has never taken against any state in its history. The Human Rights Act does render the Convention enforceable in the UK, but it’s the UK domestic courts that enforce it, not Strasbourg.

Even if the Tories scrapped the Human Rights Act completely and didn’t replace it with anything, the Convention would still be binding on the UK - not enforceable, but binding as a matter of international law - because under Article 46 any state that signs up to it undertakes to abide by the ECtHR’s rulings in cases where they are a party. The legislation the Tories are proposing to replace the Human Rights Act with would say that those rulings are *not *binding. But that won’t change the fact that legally, under the treaty the UK signed up to, they are. The Tories are perfectly entitled to repeal the Human Rights Act if they wish, and as a practical matter they can ignore ECtHR rulings without much fear of the consequences, but make no mistake - they *will *be in breach of their obligations under the Convention if they do so.