Constitutional Reform and Governance Bill

I do not intend to oppose the amendments and new clause. I entirely understand the route by which they have been arrived at. It is good news that, albeit following a bit of delay, an agreement has been reached between the Scottish Parliament and the Government in fairly short order. However, I want to enter a few words of caution. The decision of the House of Lords in Somerville etc. v. Scottish Ministers correctly stated that there were two alternative statutory routes for the vindication of convention rights in Scotland, the Human Rights Act and the Scotland Act, and that there was a discrepancy between the two. That discrepancy has now been dealt with. My first concern is whether there may yet be any challenge to the compatibility of the new provision in the Scotland Act with convention rights. I suspect that there will not be, but it is a possibility none the less. My second concern is that the arguments that may have been used to add weight to the claim for compatibility between the two statutory routes are based on some fairly crude assessments of the potential liability under human rights legislation in respect of prisons in Scotland. I do not believe that the liability that was described was a real liability, and it worries me that far too often criticism of human rights legislation is couched in terms of the claims that might be made rather than the outcome of cases that are actually heard. There is, I think, an important distinction between the two.