One of the core principles of international human rights law is universality. Universality means that human beings are endowed with equal human rights simply by virtue of being human, wherever they live and whoever they are, regardless of their status or any particular characteristics. While that idea is meant to underpin human rights law, in practice universality is seldom achieved. In this contribution, I want to explore how human rights protections across the UK are becoming increasingly unequal and fragmented and argue that the central UK institutions – the UK government, Westminster Parliament and the UK Supreme Court – are holding back progressive improvements to human rights protections.
Northern Ireland is a legal anomaly within the UK. Following the UK’s withdrawal from the EU, Northern Ireland has maintained closer regulatory alignment with the EU than Great Britain as a consequence of several agreements with the EU the most important of which for our current purposes is the Windsor Framework. Under Article 2 of the Windsor Framework, the UK agreed to “ensure that no diminution of rights, safeguards or equality of opportunity” as set out in Good Friday Agreement results from Northern Ireland’s withdrawal from the EU. In effect, the central government is not allowed to reduce the protection of rights enjoyed by the people of Northern Ireland prior to Brexit. If legislation is found to reduce protection, it can be disapplied in Northern Ireland by the courts.
Article 2 of the Windsor Framework is beginning to push human rights protections in Northern Ireland out of alignment with the rest of the UK, such that Northern Ireland arguably now has better human rights protections than the rest of the UK at least in some respects and certainly better remedies. In the case of Re NIHRC, for example, parts of the Illegal Migration Act 2023 were found to reduce the rights protections enjoyed in Northern Ireland prior to Brexit and were, as a result, disapplied in Northern Ireland. In Re Dillon, currently pending judgment at the UK Supreme Court, parts of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 were found incompatible with both EU and ECHR law and disapplied in Northern Ireland. This means that refugees in Northern Ireland now enjoy higher standards of rights protection than those in the rest of the UK. The remedies available are also arguably better in Northern Ireland. A declaration of incompatibility (under s.4 of the Human Rights Act) is available where legislation is incompatible with the ECHR across the UK, but in Northern Ireland the courts have the additional power to disapply legislation inconsistent with EU law that reduces rights protections, a measure analogous to the strike down powers we see in other constitutional systems.
In Scotland, the government incorporated the UN Convention on the Rights of the Child (UNCRC) into Scots law in 2024 and plans to incorporate other human rights treaties into their law through a Scottish Bill of Rights including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of Racial Discrimination, the Convention on the Elimination of Discrimination against Women and the Convention on Rights of Persons with Disabilities. The Welsh government has also outlined plans to incorporate the Convention on the Elimination of Discrimination against Women and the Convention on Rights of Persons with Disabilities into Welsh law. Wales has also ensured greater cognisance of the Convention on Rights of Persons with Disabilities through measures like the Additional Learning Needs and Educational Tribunal (Wales) Act 2018 and the UN Convention on the Rights of the Child through the Rights of Children and young Persons (Wales) Measure 2011, albeit stopping short of incorporation.
So what? Many would argue that there is nothing problematic or unusual about this. The principle of universality is supposed to create a floor, not a ceiling for rights protections and there should be scope for regional governments to iterate and offer higher levels of rights protection. Equally, discrepancies in rights protection levels between central governments and regional governments are not unusual across different jurisdictions. I completely accept these points, however what is unusual, and alarming, is how the central authorities have reacted to attempts to iterate and improve rights protections and the capacity they have to interfere with this under the UK’s devolution settlement.
The UNCRC is the most widely ratified of the core UN human rights treaties. As such, it is arguably the closest thing to universal human rights protection that we see in international human rights law. Despite this, Scotland faced an uphill struggle to incorporate it into its law. Under s.33(1) of the Scotland Act, Law Officers e.g. the Lord Advocate, can refer a question of whether a Bill that has been passed by the Scottish Parliament, or any provision of it, is within their legislative competence to the UK Supreme Court. The original United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was referred to the Supreme Court to see whether incorporating the Convention as they had exceeded the Scottish legislature’s powers. The UKSC ruled that Scotland could not pass the Bill in the form they did (for a more detailed analysis of the judgment see). The Bill contained a strike down power that allowed Scottish courts to strike down parts of UK Acts insofar as they relate to areas of devolved competence and conflicted with the UNCRC. It also contained an interpretive duty, analogous to s.3 of the Human Rights Act, that required the Scottish courts to read and give effect to legislation, including UK legislation within Scottish competence, compatibly with relevant provisions of the UNCRC.
The UKSC considered that allowing legislation to remain in force unchanged was one of the ways that the parliament in Westminster exercised its sovereign law-making power in Scotland. Therefore, making the continuation in force of Acts of the UK Parliament conditional on a court deciding that they are compliant with the UNCRC would affect the power of the UK Parliament to make laws for Scotland. As a result of the judgment, the Scottish Parliament revised the Bill and watered down its provisions.
The response of the central government here is instructive. As Busby notes, the UK government could have pursued incorporation of the UNCRC throughout the UK. Indeed by ratifying the UNCRC, the UK government had already promised to do this as Article 4 of the Convention requires state parties to “undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention”. Scotland clearly wanted to incorporate the treaty, and Wales had already passed legislation requiring “due regard” of the UNCRC. Yet instead of looking to create a universal domestic framework for the children’s rights that the UK was legally obliged to provide, it forced Scotland to revise its legislation.
This is becoming a pattern of behaviour with the central authorities using legislation, litigation and other tools to reduce and constrain rights protections in devolved jurisdictions. They have passed legislation reducing rights protection e.g. in Northern Ireland with the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. They have used litigation, by appealing Re Dillon to the Supreme Court and bringing the UNCRC Bill case. They have also held back Scottish attempts to iterate in protecting transgender rights by issuing a s.35 order to prevent the promulgation of the Gender Recognition Reform (Scotland) Bill. The sovereignty of the Westminster Parliament and the mechanisms the central authorities have to police devolution are being used, repeatedly, to prevent the devolved authorities from improving rights protections within their jurisdictions.
All of this begs the question – why? It seems unlikely that the UK government is actively motivated to maintain weaker standards of protection of children’s rights across the UK. They are, however, motivated by a desire to maintain the balance of power between Westminster and Holyrood, and to keep the Union intact. It seems that disputes over the protection of human rights within the UK are becoming a proxy through which disputes over devolution are acted out. It is a trend that continues through the Re Dillon appeal, which will have a seismic impact on this area of law and the balance of power. While it seems that the respondents have a strong case, the recent track record of the UKSC on rights issues is concerning. The UKSC could rule that courts are not entitled to disapply provisions of laws passed by Westminster that reduce rights protections in Northern Ireland, once again reducing the rights protections in a devolved jurisdiction.
This problem is not going away. As the Windsor Framework continues to bite and the devolved institutions progress with incorporation plans, future clashes seem inevitable. The central authorities continue to jealously guard their power, while the asymmetry of the devolution settlement means that the devolved authorities typically come off worse for their efforts to raise standards. It is profoundly depressing that rights protection has become a battleground over devolution and that moves to progressively improve rights protection, or even maintain existing standards, are stymied in this way.
It doesn’t have to be this way, especially with the party that gave us both the Human Rights Act and devolution currently holding the reins of power in Westminster and led by a man who literally wrote a book on the Human Rights Act. The political will across the UK is there to have better standards of rights protection, it’s time to raise the ceiling, not wallow on the floor.
Stuart Wallace.
Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.