In the spring of 2014 efforts to enact same-sex marriage legislation in the Northern Ireland Assembly suffered another setback. Undeterred, QueerSpace, a support group for the LGBT community in Northern Ireland, celebrated its 16th anniversary with an event pushing for reform of the law. Gareth Lee, a volunteer at QueerSpace, ordered a cake for the party bearing the slogan “Support Gay Marriage” from Ashers Bakery. When his order was subsequently rejected and his money returned on the basis that the message offended against the religious beliefs of the bakery owners, the McArthur family, these seemingly innocuous facts exploded into the “Gay Cake” case which has gripped public debate in Northern Ireland for the last year. Continue reading Ashers Bakery Loses "Gay Cake" Discrimination Case
The Conservative Party’s concept of a “British Bill of Rights” has long rankled in Northern Ireland. Seemingly in the interests of alliteration such fundamental proposals were titled in a way that carried with it thinly veiled disregard for sensibilities in what is supposedly a constituent part of the UK. Not a UK Bill of Rights, but one for Britain. British rights, not Irish rights. Beyond putting noses out of joint, it also spoke to a lack of consideration of the legal framework put in place by the Belfast/Good Friday Agreement. As the Coalition Government’s Bill of Rights Commission had warned (p.15):
[R]espondents, in particular in Northern Ireland … were also concerned that any attempt to introduce a UK Bill of Rights at this time could have adverse constitutional and political consequences for the UK, particularly if it were undertaken to the exclusion of a Bill of Rights for Northern Ireland
Nonetheless, with last week’s General Election victory the Conservative Party stands on the brink of being able to fulfil its manifesto promise:
The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.
The latest reports suggest a draft Bill is near ready for release. The appointment of Michael Gove as Minister for Justice suggests that David Cameron is positioning a minister who certainly holds himself out as a public intellectual to lead the debate over this reform. But any thought that Gove’s appointment marks a softening of the Tory position on the Human Rights Act seems wide of the mark. The most prominent appointment in Gove’s ministerial team is Dominic Raab, a vocal opponent of the HRA and a minister intended to assure the right-wing of the Conservative Party that there will be no back sliding on this issue. And indeed, how could there be? If Cameron is to hold the Tory party together in support of his “renegotiation” of the UK’s EU membership, even if this results in insubstantial concessions over the UK’s position, and subsequent referendum, this faction will have to have blood, and quick.
So, in this context, are the implications of repeal for devolution (particularly in Northern Ireland) a genuine stumbling block or wishful thinking? Will a British Bill of Rights have to alter the Good Friday Agreement? Much will depend on the extent of the Tories’ intentions. Gove’s team could unveil plans which just involved the replacement of the Human Rights Act in England. This would negate any need to negotiate with hostile devolved administrations in Scotland or Wales or tamper with the wiring of the Good Friday Agreement. This would certainly save political capital, allowing the Conservatives to portray themselves as responsive to the will of devolved legislatures and to concentrate on getting the legislation into place as swiftly as possible (as it would constitute the fulfilment of a manifesto pledge the Salisbury Convention would also prevent opponents of the proposals from fighting a delaying action through the House of Lords). Doing so might well not satisfy the Tory Party’s right wing, as the Human Rights Act would continue to operate in three of the UK’s constituent countries, but in terms of addressing the demands of Conservative voters in England (the vast majority of Conservative voters) David Cameron could argue that he had fulfilled his pledge to scrap the Bill.
But a new measure which applies only in England doesn’t make for much of a British Bill of Rights. So assuming a proposal is introduced to Westminster with the intention that it should apply throughout the UK, what might happen next? The first difficulty that the UK Government would encounter is that human rights are a devolved competence. The Welsh Assembly Government, for example, has gone some way towards incorporating the UN Convention on the Rights of the Child into Welsh law, imposing a duty upon Welsh ministers to have due regard to the Convention in their decision-making. This means that the Sewel Convention is triggered, by which the devolved legislatures must consent to Westminster legislation that impacts upon their competences (explained here). Furthermore (as Aileen McHarg explains here) the devolved legislatures in Scotland and Wales would be able to re-enact the Human Rights Act’s terms, and would likely do so to thumb their noses at Westminster. In any event, the ECHR would still be able to apply directly to cover legislation and decisions by Scottish and Welsh ministers because of the terms of the devolution legislation.
Which brings us to Northern Ireland, which, as ever, is even more complicated. Under the Good Friday Agreement the UK Government agreed to the ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights’. The Human Rights Act itself is immune from alteration by the Assembly (s.7(1)(b) Northern Ireland Act 1998). As Aoife O’Donoghue and Ben Warwick argue in a timely article in the Northern Ireland Legal Quarterly (see also here), if the Act was repealed then just as with the other devolved legislatures, ‘Northern Ireland could introduce an order that implements the ECHR for Northern Ireland alone’. The problem is that with the main Assembly parties at loggerheads on rights and equality issues (particularly around the Ashers Bakery case) and with the Unionist parties always ambivalent towards human rights, no such legislation would be forthcoming. Repealing the HRA as it applies to Northern Ireland would therefore undermine a key element of the Agreement. Oddly enough the Human Rights Act was merely intended to fulfil the role of placeholder legislation whilst a Northern Ireland Bill of Rights was drafted, but the inability of the Northern Ireland political parties to reach an agreement over such legislation now means that the Human Rights Act will likely soldier on in this corner of the UK at least.
The smart money would therefore appear to be on some form of compromise by which the Human Rights Act is repealed insofar as England is concerned, but remains in place in the remainder of the UK. Martin Howe QC, a key behind-the-scenes figure involved in drafting the Conservatives’ proposals is quoted in yesterday’s Guardian as saying that ‘you could have significantly different standards of human rights across the UK’. The problems with attempting to impose a British Bill of Rights across the UK, although not insurmountable, would turn a relatively straightforward “win” for the Tories into a protracted fight. Any effort by the Conservatives to go further, and withdraw from the European Convention altogether, would likely descend into a pitched constitutional battle between the UK’s legislatures.
The Counter-Terrorism and Security Bill currently being hustled through Parliament with unseemly haste was announced in a blaze of rhetoric. Theresa May told a rapt 2014 Conservative Party Conference that she wanted to see “new banning orders for extremist groups”. There was talk of re-establishing the Broadcasting Ban (which did so much in the 1980s and early 1990s to help out jobbing actors who could do a passable Gerry Adams impression – Stephen Rea included). “Foreign Fighters” would be prevented from returning to the United Kingdom. Foreign Secretary Phillip Hammond even floated the idea of levelling treason charges against those taking part in Islamic State activities overseas, even though various modern terrorism offences of universal jurisdiction exist. Continue reading Après Charlie: The Progress of the UK's new Counter-Terrorism and Security Bill
Six months ago, Malachi O’Doherty claimed that with his arrest over the murder of Jean McConville, Gerry Adams’ political career was as good as over; “Adams’s southern political ambitions are now dead, whatever happens next”. Just a month later, following European and Local elections that saw Sinn Féin maintain their position in Northern Ireland and surge in the Republic of Ireland, the talk turned, in Colm Keena’s words, to whether Sinn Féin “will hold the position of Dublin Lord Mayor in Easter 2016”. Maíria Cahill’s claims of her rape at the hands of a Provisional IRA member and her subsequent treatment at the hands of the republican movement have in recent weeks returned the spotlight to Sinn Féin. And that is before we even mention the “On-The-Runs” crisis which threatened to collapse the Northern Ireland in the spring. And yet, Sinn Féin seems to have been able to shake off each successive crisis and continues to see its popularity surge according to recent polls. Continue reading Sinn Féin, Constitutional Politics and the Rule of Law
Today the UK terrorism threat level has once again been raised to severe, as a result of ‘developments in Syria and Iraq where terrorist groups are planning attacks against the west’. Within hours of the increased threat being announced, David Cameron was on hand (in Downing Street, not in Cornwall) to ominously declare a “greater and deeper threat to our security than we have known before”. Continue reading Presumption of Guilt: Islamic State and UK Criminal Law
In his understated way, Lord Justice Gross announced the latest round of the prize-fight that has defined so much of the debate on the role of the legal system in a liberal democracy since the 9/11 attacks (at ): “From time to time, tensions between the principle of open justice and the needs of national security will be inevitable.” This morning’s decision in Guardian Media v AB CD once again saw national security, long-running champion interest in the UK legal systems, take to the ring being heralded (at ) as “a national interest of the first importance”. Continue reading Rule of Law v National Security: The Big Fight Live
“In Northern Ireland”, Peter Hain opined in his autobiography Outside In (pictured left), there is “always a crisis around the corner” (p.323). There is more of a feel of truth than truism to the statement, especially as the on-the-runs scandal dominated recent headlines (before being eclipsed by developments in the Crimea). I’d be surprised if a good few Irish viewers watching the BBC 2 drama miniseries 37 Days, on the slide towards the First World War, haven’t felt there is something queasily apposite in the scenes where the UK Cabinet’s attention is wrenched away from the “muddy by-ways of Fermanagh and Tyrone” and towards a developing European Crisis. Continue reading What the Dogs in the Street Know: On the Runs and Hanging Peter Hain Out to Dry
Stop and Search certainly was the hot human rights news story of last summer within the UK. Schedule 7 powers under the Terrorism Act 2000 allow for extended powers to stop and search, and even detain for up to nine hours individuals in the context of ports and airports, for the purpose of assessing whether they are linked to terrorism. That police powers should be extensive in this context might be thought relatively uncontroversial. After all, the potential to trap hostages in such a confined space was attractive to terrorist groups long before the 9/11 attacks displayed the potential of using civilian airliners as weapons. Continue reading Pushing Their Luck? UK Counter-Terrorism Powers and David Miranda
Last week Tom Watson MP (pictured left), chair of the All-Party Parliamentary Group on Drones (APPG), launched a new front in the work of the Group (founded back in 2012). As a parliamentarian with an uncanny ability to spot human rights issues likely to make the headlines and which will hold extended media attention, the subject of drones (both in terms of the UK’s operation of them and its cooperation with the US) was always likely to grab Watson’s attention. But the reason Watson is so high-profile in his myriad pursuits, from trying to bounce Tony Blair into resigning, to vanquishing Rupert Murdock to needling the Government on its drone policy, is his grasp of the role of a backbench MP. Continue reading Tom Watson’s Triumph? UK Communications Interception, Drone Strikes and the European Convention on Human Rights
“Political Prisoner” is a term to conjure with, a term that demands headlines. But woe to the campaign which tries to exploit this term’s unique resonance where the media finds the cause in question unfashionable. Martin Corey (pictured, left) was this week released after nearly four years in which he was detained in Maghaberry prison without trial, a detention affirmed by a tribunal hearing closed evidence against him with his interests controversially protected by a Special Advocate. His challenge to this detention reached the UK Supreme Court (and may yet be heard before the European Court of Human Rights). And yet, outside Northern Ireland his case is almost unknown. In a particular indignity, the Irish Times reported his latest Court defeat in December, but has yet to report his release. Stories about dissident republicans mustn’t sell enough papers. Continue reading Martin Corey's Release: The Sound of Silence?