The European Convention on Human Rights applies differently to the primary legislation of the UK Parliament compared with the primary legilsation of the devolved administrations. Steffan Evans argues that this is a difference that has largely been overlooked during the English Votes for English Laws debate and uses the Government’s proposals to extend the “right to buy” to housing associations in England to illustrate its impact in practice.
With the dust having settled on the Conservative party’s election victory, attention has now turned to how the new government intends to implement its policies and their potential impact. Two policies in particular have garnered much of the headlines; English Votes for English Laws (EVEL), and the proposal to extend the “right to buy” to Housing Associations tenants in England.
On the one side, much of the focus surrounding the EVEL debate has been on the perceived unfairness of Scottish, Welsh or Northern Irish MPs getting to vote on legislation that will only affect England. On the other, opponents have argued that the policy will create two classes of MP and that English only law does have an impact on the other constituent parts of the UK due to the way funding is allocated under the Barnett Formula.
The ongoing debate in the housing sector over the “right to buy”, however, highlights another significant imbalance within the United Kingdom’s constitutional settlement; namely that the power of the court to deal with legislation that breaches the European Convention on Human Rights (ECHR) differs between the legislation of the devolved administrations and English only legislation passed at Westminster.
The consequences of this difference are significant. It could be argued that English legislation is viewed as superior to devolved legislation under the constitution, and perhaps more startlingly, that the Human Rights protection afforded to those affected by English only legislation is weaker than that afforded to those who are affected by devolved legislation.
Any legislation enacted by the Scottish Parliament, or the Welsh and Northern Irish Assemblies that breaches the ECHR is outside their legislative competence (as set out in section 29(2) of the Scotland Act 1998, section 108(6) of the Government of Wales Act 2006 and section 6(2) of the Northern Ireland Act 1998).
Under the Scotland and Northern Ireland Acts and the Government of Wales Act there is a four week period under which the Bills of the devolved administration can be referred to the Supreme Court for judgment on whether the Bill is within their legislative competence. If the Bill is not within their legislative competence then it does not receive royal assent, and does not become law. To date three Welsh Bills have been referred to the Supreme Court with one, the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill being deemed to have been outside the Assembly’s competence. One of the grounds upon which this was held was that the Bill breached Article 1 Protocol 1 of the ECHR (the right to peaceful enjoyment of possessions).
No such period exists for English legislation. Under the doctrine of parliamentary sovereignty, Parliament is supreme. In general it cannot be over-ruled by the courts or bind it’s successor. As such there is no need for the UK parliament to show that it has competence to legislate on any matter. English legislation is the legislation of UK parliament and as such the doctrine also applies to English legislation. This discrepancy between the power of the “English” legislature and the devolved legislatures will not be addressed through the introduction of EVEL.
The differences between the devolved nations and England are not limited to the period before the legislation is enacted. This can be illustrated by looking at the proposals to extend the “right to buy” to housing associations in England.
With a Conservative majority in the Commons, it seems unlikely that “right to buy legislation” will not pass through the lower chamber. Whilst opposition and cross-bench peers have already attempted to limit the impact of the policy by voting in favour of an amendment to the charities bill, that would mean that charities could not be “compelled to use or dispose of their assets in a way which is inconsistent with their charitable purposes”, the Salisbury Convention (the convention that the Lords should not block the manifesto pledges of the governing party) means that it is likely that the policy will make it to the statue book, even if the Liberal Democrats follow through on their threat and don’t comply with the convention.
It would therefore seem that the best chance that Housing Associations would have of preventing the legislation from coming into force would be to challenge it on the grounds that it breached Article 1 Protocol 1 of the ECHR (as in the Asbestos case). Such a challenge is widely anticipated within the sector. Article 1 Protocol 1 concerns the right to peaceful enjoyment of possessions and not be deprived of possessions. This right exists for corporations as well as individuals, so Housing Associations would be arguing that their rights are infringed by the legislation, which deprives them of their property by forcing them to sell it.
Proceedings can be bought against legislation of the UK parliament on the grounds that it breaches the ECHR. Under section 4 of the Human Rights Act the court can make a declaration of incompatibility, a declaration by the court that it thinks that the legislation is not compatible with convention rights. The section does make it clear however that such a decision does not affect the “validity, continuing operation or enforcement” of primary legislation. As such Parliament does not have to abide by the court’s decision. An example of this is prisoner voting. The Grand Chamber of the European Court of Human Rights decided in 2005 that a blanket ban on prisoner voting, breached the Convention yet the relevant legislation, the Representation of the People Act 1983 is yet to be amended in the UK.
The situation differs in the devolved administrations. Whilst the provision in section 4 of the Human Rights Act that a declaration of incompatibility does not affect the “validity, continuing operation or enforcement” of primary legislation, human rights have been further protected by their devolution settlements. As noted any legislation that breaches the Convention is outside the competence of the Welsh, Scottish and Northern Irish legislatures. Section 108 of the Government of Wales Act 2006 states:
“An Act of the Assembly is not law so far as any provision of the Act is outside the Assembly’s legislative competence”.
Identical provisions have been placed in the Scotland and Northern Ireland Acts. To date the courts have not found that a piece of primary legislation granted royal assent, from one of the devolved administrations has breached the ECHR. From the wording of the provision above however, it would seem likely that if a declaration of incompatibility was made by the courts, then the legislation in question would be invalid and no longer in force.
The proposals to extend the “right to buy” to Housing Associations highlight the significant impact that this discrepancy has in practice. If the courts decided that extending the “right to buy” to Housing Associations in England was in breach of the Convention, the legislation would not be invalidated. This is in stark contrast to the likely position of their counterparts in the devolved nations if one of the devolved legislatures attempted to introduce such a policy.
This discrepancy between English and devolved legislation has not been widely discussed to date. The debate over English Votes for English Laws provides us with an opportunity to consider whether such an imbalance in the UK constitutional settlement is in need of addressing.
Steffan Evans is a PhD student at the School of Law and Politics and the Wales Governance Centre, Cardiff University. His research looks at devolution and legal divergence in social housing regulation in Wales and England and his work is funded by the AHRC and Blake Morgan LLP.