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.

Ireland’s Relationship with the ECHR: Reflections for the UK

ECHR at 60These are my speaking notes from the #ECHR60 conference held at the Law Society in London on 3 September and organised by the British Institute for Human Rights to celebrate the 60th anniversary of the ECHR coming into effect.

As the ECHR turns 60 it is an opportune time for us to reflect on the successes of the Convention and, of course, on the challenges that lie ahead. When the ECHR came into force in 1953 few could have imagined that it would end up providing rights protection and an international human rights court for hundreds of millions of people across more than forty states from the west coast of Ireland to the east coast of the Russian Federation. Nor could people have imagined the kind of cases—and the volume of cases—that the European Court of Human Rights would find itself dealing with: slavery, religious expression and dress, interception of communications, LGBT rights, protection of the home, privacy, and torture continue to be issues that the Court is required to deal with time and time again even today. Surely the signatories in 1953 could not have envisaged this, either because they did not think of these in terms of rights (for example identity-related rights of transgendered persons) or because they would have anticipated that sixty years on abominations such as torture and slavery would no longer trouble us on this continent. Sadly, however, they do. In spite of this, we know that the ECtHR has become a major pressure point in states’ engagement with the Convention, either because states consider that it is overly engaged in the constitutionalist development of the Convention, or because they fail to give effect to the Court’s decisions even when those decisions are legally binding under Article 46 of the Convention. These pressure points are reflected in proposed reforms at both the European level (reflected in the Izmir, Interlaken, Brighton process) and at domestic level (reflected in the post-HRA milieu in the UK and the discussions around a ‘UK Bill of Rights’ distinct from/lying beside/replacing the HRA (which option would be chosen is not entirely clear)). In this context, there may be something interesting to be gleaned from the experience of the UK’s near neighbour, Ireland, and its experience of the Convention. The Irish experience of the Convention and the Court can be characterised in general terms as collaborative and positive, but in order to discern any reflections for the UK from this experience some important contextual groundwork must first be laid. Continue reading

Weekend Reading: Bonfires, Liberties and Reviews

This weekend I will be revisiting a book released this year by Keith Ewing and entitled Bonfire of the Liberties: New Labour, Human Rights and the Rule of Law (2010, OUP) in conjunction with Helen Fenwick‘s review of the book in the new issue of the Journal of Law & Society. The blurb for Bonfire of the Liberties reads:

This provocative book confronts the corrosion of civil liberties under successive New Labour governments since 1997. It argues that the last decade has seen a wholesale failure of constitutional principle and exposed the futility of depending on legal rights to restrict the power of executive government. It considers the steps necessary to prevent the continued decline of political standards, arguing that only through rebalancing political power can civil liberties be adequately protected Continue reading

Did the UK General Election save the Human Rights Act?

Last week’s formation of a Conservative-Liberal Democrat coalition government in the United Kingdom under the leadership of David Cameron raised serious questions as to how the two parties could reconcile their civil liberties platforms. The Human Rights Act 1998 (HRA) is the focal point of this rupture between the parties, with the Conservative Party’s manifesto pledging to replace the HRA with a “British Bill of Rights” and to limit the requirement upon courts in the UK’s legal systems to take account of the rulings of the European Court of Human Rights (ECtHR). The Liberal Democrat manifesto, by contrast, called for a written UK Constitution (which could conceivably include a British Bill of Rights) but would countenance no watering down of the protections currently in place. The Sunday Times was quick to flag this up as a potential long-running source of division between the coalition partners (although not as quick as Cian Murphy and Deidre Duffy on HRinI).

Yesterday’s ruling by the Special Immigration Appeals Commission that Abid Naseer (pictured left) and Ahmed Faraz Khan could not be deported to Pakistan, despite their involvement in a terrorist plot in the North West of England that was broken-up last April (after Assistant Metropolitan Police Commissioner Bob Quick exposed documents detailing the plot to Downing Street photographers), elevates this issue to the forefront of British politics. This decision was based upon the risk that these individuals would face torture or inhuman and degrading treatment if deported to Pakistan. As Abid Naseer’s face stares down at commuters across the UK this morning, right-of-centre newspapers which have lined up to criticise the decision and to remind the Conservatives of their manifesto pledges. The Daily Mail, describing the decision as “the latest in a string of human rights victories for terrorists and terrorist sympathisers”, launched a direct attack upon the HRA:

There are no prizes for guessing which statute we have to thank for this perversity. For yesterday’s ruling is the latest of countless injustices perpetrated under the Human Rights Act since Tony Blair pushed it through Parliament in 1998, sweeping away common-sense laws and liberties that had evolved over centuries.

Continue reading