Devolution and the Future of the UK’s Human Rights Act 1998

HRAThe 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.

Devolution and the Future of the UK’s Human Rights Act 1998

Whitaker on Politics and the NI Bill of Rights

The latest issue of Irish Political Studies features an article by Dr Robin Whitaker entitled “Debating Rights in the New Northern Ireland”. We have written before (here, here, here, here, here and a guest contribution here) about the difficulties ongoing in the NI Bill of Rights process and this article lends a useful political science perspective to this debate and ongoing commentary. The abstract states:

The 1998 Belfast Agreement provided for a Bill of Rights ‘to reflect the particular circumstances of Northern Ireland’. Opinion poll evidence indicates strong approval for such a charter. Diverse civil society groups have offered support, as have all the main parties. Yet, over a decade on, the Bill of Rights remains among the unfinished business of the Agreement. What Northern Ireland’s ‘particular circumstances’ demand in terms of codified rights is a matter of considerable dispute. Political unionism supports a narrow interpretation and a minimalist bill; nationalists argue for an expansive reading, encompassing socio-economic issues. Debate about rights looks at first glance like just another battleground for constitutional conflict. However, an examination of the scope of the debates together with their substance complicates any such reductionist reading, although this complexity tends to recede where the demands of formalised cross-community consent are strongest. Continue reading “Whitaker on Politics and the NI Bill of Rights”

Whitaker on Politics and the NI Bill of Rights

Why the UK General Election Matters for Human Rights in Ireland

As Cian noted earlier today, the UK election has begin in earnest. This election, of course, has potentially very significant ramifications for the future of the Human Rights Act 1998 and the Bill of Rights process in Northern Ireland. In particular, the Conservative Party-currently enjoying what seems like a healthy lead in the polls-has proposed the repeal of the Human Rights Act 1998 upon election and its possible replacement with a ‘British’ Bill of Rights. In this post I want to just briefly expand on the concerns about this proposal noted by Cian in that earlier post. Continue reading “Why the UK General Election Matters for Human Rights in Ireland”

Why the UK General Election Matters for Human Rights in Ireland

Further updates on the BOR process: the NIAC report

Following on from Cian’s earlier blog on the response of the DUP to the NIO’s Consultation Paper on a Bill of Rights for Northern Ireland, it is worth noting that 24 March saw the Westminster Northern Ireland Affairs Committee release ‘A Bill of Rights for Northern Ireland: An Interim Statement‘.

Given the political make-up of that Committee, many of those in favour of a NIBOR regarded the NIAC’s decision to carry out such an inquiry as an effort on the part of political actors unhappy with the NIHRC’s advice to have ‘another bite at the cherry’. Arguably, the limited and poor quality consultation document produced by the NIO in response to the NIHRC’s advice rendered this unnecessary. (For a discussion of some of the criticisms made of the NIO document, see here)

Whatever its reasons, the Committee itself does not make an explicit recommendation either in favour or against a NIBOR. Rather it states: Continue reading “Further updates on the BOR process: the NIAC report”

Further updates on the BOR process: the NIAC report

Guest Contribution: Harvey on a Bill of Rights for Northern Ireland

Today marks what was to be the closing date for the NIO Consultation on the Bill of Rights for Northern Ireland. The NIO has extended the closing date to March 31 2010, but we nonetheless take this opportunity to bring you this guest contribution from Professor Colin Harvey of Queen’s University Belfast and the Northern Ireland Human Rights Commission. You can find out more about Professor Harvey on our Guest Contributors page. Please note that the post is the text of a speech delivered at King’s College London last Monday 22 February 2010 and is being contributed by Professor Harvey in a personal capacity.

Achieving Our Bill of Rights?

Introduction

Good evening everyone. I am pleased to have this opportunity to talk to you about the Bill of Rights process in Northern Ireland, and discuss possible next steps. I would like to thank Professor Aileen McColgan and the School of Law at King’s for making this event possible, and Maggie Beirne for chairing the session. The Bill of Rights process has reached a significant moment. The Northern Ireland Office (NIO) is currently consulting on its response to the Human Rights Commission’s final advice. This evening I would like (in a personal capacity only) to sketch the context for the debate, say something about the process, note substantive aspects of the Commission’s advice, and then reflect on where we go from here. Continue reading “Guest Contribution: Harvey on a Bill of Rights for Northern Ireland”

Guest Contribution: Harvey on a Bill of Rights for Northern Ireland

NIHRC Rejects NIO Consultation on a Bill of Rights

On 17 Feburary, the Northern Ireland Human Rights Commission published its response to the Northern Ireland Office (NIO) consultation paper on a Bill of Rights for Northern Ireland.

According to the NIHRC website:

NIHRC Chief Commissioner Professor Monica McWilliams stated:

“Legislation of such importance is deserving of greater consideration and analysis than appears to have been invested in the NIO consultation paper on a Bill of Rights. As a national human rights institution, the Commission does not accept this as a genuine effort to increase human rights protections in Northern Ireland.”

The NIO consultation paper is an inadequate response to what should be in a Bill of Rights for Northern Ireland. The Commission believes the consultation:
• Demonstrates a lack of understanding of the purpose and functions of a Bill of Rights
• Fails to take appropriate account of international human rights standards
• Appears to be suggesting the lowering of existing human rights standards in Northern Ireland
• Fails to satisfy the minimum common law consultation requirements, and
• Misrepresents the advice given by the Commission.

The Commission’s own December 2008 advice on what should be contained in a BOR for Northern Ireland was previously blogged about by Cian Murphy here.

The Commission’s strongly phrased response is highly critical of the NIO consultation document, which has been the subject of strong criticism by civil society groups and coalitions, such as the Human Rights Consortium, which have carried out extensive advocacy campaigns seeking to bring about a wide-ranging and effective Bill of Rights for NI.

In its response, the Commisison states that it is ‘extremely disappointed at both the tone and content of the NIO consultation paper’ and highlighted that it ‘had expected by now to be in a position to provide Government with detailed feedback on how it ought to take forward the proposals for a Bill of Rights for Northern Ireland’. Instead, according to the Commission,

The Commission has concluded that it is not possible for a national human rights institution to accept the NIO consultation paper as a genuine effort to increase human rights protections in Northern Ireland.

It will be crucial to see how the NIO, the British and Irish governments and the NI political parties react at this point. Will the NIO respond to the Commission’s criticism or will the BOR simply be allowed fade away by an indifferent and/or resistant political establishment(s)? The answer to these questions should become clearer over the coming weeks.

A full copy of the NIHRC’s response to the consultation document is available here.

NIHRC Rejects NIO Consultation on a Bill of Rights