Human rights and ethical exceptionalism

Scotland’s First Minister has been quick to position her party at the head of opposition to abolition of the Human Rights Act (HRA), saying: “Human rights are there to protect all of us … The idea that we take away human rights, I think, is just an awful suggestion, so the Scottish Government will oppose that and work hard to make sure that in Scotland people still get vital human rights protection.”

I agree with all that. But the party’s position in the vanguard of those protecting the HRA does contain a certain amount of irony.

Here, for example, is Alex Salmond speaking in Holyrood in 2010 about the European Court of Human Rights (ECHR) ruling that the UK’s blanket ban on prisoner voting was in breach of the Convention:

I know that the Liberals are understandably keen on the European Court of Human Rights and the European Convention on Human Rights. However, I cannot believe that, back in 1997 when there was blanket signing up to the ECHR, those of us who argued very strongly that human rights should be observed across the European continent thought that one of the key issues would be to give convicted prisoners the right to vote. For most people, that does not seem to be what we would consider to be an important human right.

Should it not be just a little awkward for the SNP that their former leader, now once again planning to “roar” at Westminster, is on record as appearing to believe that the ECHR first appeared a whole decade into his parliamentary career? For a politician of Salmond’s experience and self-proclaimed interest in human rights not to know that the Convention has its roots in the horrors of the Third Reich is a pretty basic bit of political illiteracy. The UK government (a Conservative one – there’s an irony) and others ratified it in 1953. At the time, many prisoners across the UK were in fact able to vote, just to add a further twist.

It should not, however, be wholly surprising that Alex Salmond had forgotten that in 1997 the focus was not on the ratification of the ECHR across Europe, but the translation of existing Convention rights into domestic UK law, via the HRA. He appears neither to have spoken nor voted in the Commons HRA debates. Wherever he was arguing for the observation of human rights across Europe in 1997, it doesn’t appear to have been at the Palace of Westminster.

A vote for prisoners

On his substantial point about prisoner voting, a position which in fairness he shares with most other members at Westminster and Holyrood, he is joined by his replacement as party leader. Notwithstanding the clear view of the European Court, Nicola Sturgeon declared in 2013: “I do not believe that prisoners should get to vote in elections”. The Scottish Government strongly resisted pressure to enable at least some convicted prisoners to vote in the referendum, over which it had discretion. It now takes the view that its new jurisdiction over the voting age at elections does not require it to extend any such rights to young people serving a custodial sentence. In the most recent Westminster vote, in 2011, the SNP was the only mainland UK party which had members who voted in favour of retaining the current ban, including the now Deputy Leader, but none who voted in favour of allowing at least some prisoners to vote. The others had either at least a few dissidents (Labour, Conservative) or voted only for change (Liberal Democrat, Green, Plaid Cymru).

Labour, of course, faces a similar vulnerability in its defence of the HRA. Jack Straw, who piloted the Act through Westminster in 1998, was also a fierce opponent of prisoner voting before leaving the Commons this year. In the last parliament at least, most on the Labour benches appeared to agree with him. The likelihood of a new Labour leader arguing for change seems low. As long as that is the case, Labour will join the SNP in taking a selective approach to ECHR, undermining its wider position on human rights.

Indeed, we might read into this that the SNP, Labour and even Conservatives may yet find some common ground in coming years in regarding human rights as a matter for more local interpretation. It’s not so long after all since Alex Salmond was caught up in a row over the jurisdiction of the UK Supreme Court in Scotland, in a decision in which the HRA was implicated. With that in mind, it’s worth recalling that the Smith Commission suggested devolving the franchise to Holyrood. The Scotland Act as currently framed requires the Scottish Parliament to act within the ECHR. Whatever technicalities may have allowed the Scottish Government to dodge the implications of this at the referendum, and in extending the vote to 16 and 17 year olds, judgements at Strasbourg put it beyond argument that if the Scottish Parliament has complete control over who elects MSPs, then its will have to grant voting rights to at least some convicted prisoners, if it is to stay within ECHR.

Meantime, Westminster will face no equivalent compulsion. If the battle is lost on the HRA itself, entirely removing the sub-section of the Scotland Act requiring ECHR compliance by the Scottish Parliament as part of any replacement regime might appeal both to the Conservatives and the SNP. After all, why should Holyrood operate under a constraint not applying in London? Can’t it be trusted? The speech writes itself and could be equally easily made from either side of the house. It would certainly save the Scottish Government some bother and, with a Conservative majority, could even be achieved in the face of formal (token?) opposition.

Other ironies lie ahead. The SNP is reported already to be seeking to persuade those Conservative backbenchers opposed to HRA abolition to vote against their party’s manifesto commitment. That’s perfectly sound parliamentary tactics which should be welcomed by all those who want the Act kept, whatever their political background. But the SNP will be doing this as a party expecting iron discipline from its own MPs and which spent the past five years torturing the Liberal Democrats over breaking an election pledge. It’s a complicated place, the moral high ground, and not always the easiest one from which to exert leverage.

Peers to the HRA’s rescue

Not yet much discussed is what might happen in the House of Lords. By convention, they will not oppose a government manifesto commitment, but some members at least may subject any proposal to abolish the HRA to painful dissection and, if there’s truth in the warnings about the massive legal mess abolition could generate, the upper house may yet deploy various tactics at its disposal short of a veto. Many of us think the second chamber needs radical reform: but the SNP has been particularly keen to challenge the Lords’ legitimacy. What should the party’s position be if delaying tactics in the unelected chamber become the HRA’s best hope?

Other parties regularly find themselves facing such difficult questions. Where the SNP stands out, however, is the extent to which it has emphasised its ethical purism, not just in isolation but, critically, compared to other parties. Its positioning as a body which does not do deals with Tories, believes in parties keeping their pledges and generally will not compromise its principles is not just window dressing. However much some may contest the reality, these are things which many of its members appear deeply and genuinely to believe make them significantly different and more worthy of support than other political movements.

How it deals with the HRA will be just one test of this ethical exceptionalism. In claiming the moral high ground, it has lately been aided by the new First Minister’s remarkable ability to convey a powerful depth of sincerity as a speaker and interviewee. More extraordinary still is how that degree of sincerity, to all appearances real enough in the moment, is maintained even as the content of the argument changes, and whether or not the point being made conflicts with another position recently taken, with equal conviction.

Legal training and years spent debating have no doubt given her the skills, technical and mental, required to do this so persuasively. It is a trait now likely to be demanded as never before of her new parliamentary members, too. If something as superficially easy as opposing abolition of the HRA exposes contradictions for the SNP, then sustaining their narrative of political high-mindedness over the next few years at Westminster is going to require a great deal more such lawyerly skill.


  1. John Fitzgerald says

    Interesting article. The charge of ethical inconsistency doesn’t stick though. There might well be a gap between moralistic rhetoric and political expediency. But it seems consistent to me to employ an imperfectly democratic system as-is in order to preserve and secure much more fundamental rights. Politics is, after all, the art of working with what you have in order to get what you want.


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