THIS week most eyes have been rightly fixed on the devolution power grab planned by the Tories to secure their post-Brexit internal market. However, at the same time, SNP MPs have been working hard to find out what the Tories have in store for human rights protections in their new Brexitopia.

The Tory manifesto which was so roundly rejected by voters in Scotland contained a promise to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”.

Be in no doubt that these seemingly innocuous words are the signal that Boris Johnson plans to take revenge for the pasting he got from the UK Supreme Court in the prorogation case.

This wrecking ball to what remains of the British constitution will commence with a rather innocuously named Constitution, Democracy and Rights Commission announced earlier this year. The Lord Chancellor (the Tories’ Justice Secretary) told us in June that he was also working on an Independent Review into the operation of the Human Rights Act (HRA) but seemed reluctant to give further details.

Earlier this week one of his junior ministers was on duty at the monthly parliamentary question time on justice matters and we got a little more detail. He acknowledged that the Scottish Government would need to be consulted about any changes to the HRA and that the implications for Scotland’s separate legal jurisdiction would require to be taken into account. However, I fear given his government’s track record he may have to eat his words.

The Human Rights Act was passed in 1998 the same year as the Scotland Act which established the Scottish Parliament. The combined effect of these two Acts was to incorporate the ECHR into Scots law and Scottish governance. Scottish ministers and the Scottish Parliament must act compatibly with the ECHR or the courts can strike down their laws and decisions.

The HRA applies across the UK and means that people living in the UK can use the domestic courts to give effect to the rights and freedoms guaranteed by the ECHR. Judges must read and give effect to laws passed by Westminster in a way which is compatible with convention rights and it is unlawful for a public authority to act in a way which is incompatible with the ECHR.

The EU is certainly sufficiently concerned about the Tories’ plans to “update” the HRA that they have made it a condition of future co-operation on law enforcement and judicial co-operation in criminal matters that the UK continues to adhere to the European Convention on Human Rights (ECHR) and to give effect to it in its domestic law. The EU understands that without the HRA to guarantee domestic legal access to the rights afforded by the ECHR human rights in the UK will be diminished.

The ability to realise these rights in the domestic courts have brought real and tangible results for British citizens who have been ill-served by the state.

To take just two examples: the police were held to account for breaching women’s rights under Article 3 of the ECHR (the prohibition on torture and inhuman or degrading treatment) for failing to properly investigate reports of rape in the case of John Worboys, the taxicab rapist. And legal action to protect the right to life under Article 2 delivered the new inquests into the deaths at Hillsborough which found that football fans had been unlawfully killed and that the Liverpool fans were not to blame.

The antipathy to the HRA exhibited by the current Tory party is part of their hostility to international rules-based codes and typifies the British exceptionalism of a government that thinks everything British (but presumably not Scottish) is world-leading.

The direction of travel of the Scottish Government in respect of human rights protections is very different.

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In December 2018 the First Minister’s Advisory Group on Human Rights reported with recommendations for a new human rights framework to improve peoples’ lives in Scotland. Their recommendations are designed to make sure that Scotland does not regress from the rights which were previously guaranteed by our membership of the EU and that we continue to keep pace with future rights developments within the EU and demonstrate leadership in human rights. The Advisory Group recommended that the Scottish Parliament should pass a new human rights act incorporating economic, social, cultural and environmental rights in the devolved areas.

In the event of independence, the group recommended that there should be a written constitution and a Bill of Rights for Scotland.

In October last year, a National Taskforce for Human Rights Leadership was set up to take forward these recommendations at least in so far as devolved powers are concerned.

However, we are fast learning that the problem with devolution is that the powers and competences of the Scottish Parliament exist only at Westminster’s pleasure. The power grab prompted by the Tories’ desire to create an internal market seems likely to be followed by attempts to restrict the human rights protections enjoyed by people living in Scotland.

This Tory Government has a significant majority. Most of its MPs are 100 per cent signed up to project Little Britain. In order to realise their dreams, they are quite prepared to undermine the devolved settlement that has been the settled will of the Scottish people for more than two decades. The question for the Independence movement and for the SNP is whether, with this level of disrespect for Scottish democracy, we can be sure that a second independence referendum will be guaranteed simply by the SNP winning yet another election.

This Westminster Tory Government is ripping up the rule book. It is time for some serious contingency planning.