Tuesday, 14 October 2014
Outrage has been expressed in many quarters about the UK Government's apparent decision to withdraw from the European Convention on Human Rights — which may even result in its being ejected from the Council of Europe while some far less democratic states in eastern Europe (notably Russia) remain. Should current plans ever come to fruition, it would raise a number of issues:
The ECHR was made directly justiciable through British courts by an Act of Parliament. In Northern Ireland, however, that justiciability is guaranteed by agreements that the UK Government cannot breach without extremely serious political consequences, conceivably extending to renewed civil strife.
If Northern Ireland keeps its right to have the ECHR directly justiciable, which it probably will owing to the fact that the current system is itself underpinned by an international treaty in the form of the Good Friday/Belfast Agreement, will post-referendum Scotland be allowed to do the same?
If Scotland can, in relative isolation, make the ECHR justiciable, can it do the same for other Council of Europe treaties and protocols, such as the European Charter for Regional or Minority Languages? At present the Charter has no legal status in the UK, and its provisions are in any case a "shopping list" rather than an iteration of binding rules. There is surely scope, however, to give legal backing to some of those provisions, such as by introducing an absolute right to Gaelic-medium education. Although GME is coming from a low base, the more pupils attend, the greater the practicality of copperfastening such a right in law, and the greater the pressure to do so.