This article seeks to analyse the impact on rights protection and society in general in Northern Ireland of the repeal of the Human Rights Act (HRA). It argues that repeal, on the terms proposed by the Conservative Party, would be a regression in rights protection and is unlikely to provide an opportunity for the enhancement of human rights standards. This Blog suggests that “incorporation” of the European Convention on Human Rights (ECHR) involves the jurisprudence as well as the text of the Convention and that repeal of the HRA would breach the Belfast Good Friday Agreement. It is also argued that repeal of the HRA would breach the “Sewell Convention,” which governs the relationship between the UK Government and devolved institutions, and is likely to provoke a constitutional crisis in terms of the governance of the Union. 

In October 2014, the Conservative Party published a document which proposed repealing the Human Rights Act (HRA) and replacing it with a British Bill of Rights. Although that document was widely criticised, the following commitment was included in the Conservatives’ Election Manifesto: 

“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.” 

There was a slightly watered down commitment in the Queen’s Speech but it now appears that there will be a consultation begun by the Justice Secretary in the autumn though legislation might be delayed until after the referendum on membership of the European Union. 

There are those who see the possible advent of a British Bill of Rights as an opportunity rather than a threat, both in terms of increasing the protection of rights in general and in opening up a space where a Bill of Rights for Northern Ireland, albeit limited, might be negotiated. In arguing against that position our first point is that “breaking the link” between the European Court and the British (i.e. UK) courts in itself would diminish rights protection as international oversight over the UK state would be reduced. 

It is also possible to see clear threats to a proper system of human rights protections in the way the proposals have been argued. Against the universality of human rights is posed the concept of “British” values and principles, seen to be different and inherently superior to “foreign” or “European” impositions. Against the basic principle that human rights accrue to every person by simple virtue of their humanity, the proposals suggest that “foreign nationals” be treated differently and that rights are dependent on the proper exercise of “responsibilities.” Against the principle that everyone – even those declared enemies – are deserving of human rights protection is set the proposal that the ECHR should not bind the actions of British military forces overseas. In this context, the idea that proposals deriving from the present UK Government offer an opportunity to extend human rights protections flies in the face of both the facts and any sensible political analysis. 

As regards a Bill of Rights for Northern Ireland, it is hard to see how knocking down one of the pillars of the Belfast/Good Friday Agreement brings an opportunity to erect one that has never been built. The incorporation of the ECHR was a basic ingredient of the human rights protections in the Belfast Good Friday Agreement and was enshrined in the treaty between the UK and Ireland that backed it up. This commitment cannot be met by simply reproducing the text of the Convention in any new “British” Bill of Rights. “Incorporation” also involves “bringing in” the institutions of the Convention and the jurisprudence developed by the Court and other Convention bodies. 

The Agreement also commits to safeguards to ensure the Northern Ireland Assembly or public authorities cannot infringe the ECHR.  Removing this safeguard takes away a significant pillar of the human rights architecture both of the Agreement and Northern Ireland society. It threatens the whole basis of trust in the new institutions that has been painstakingly built up since 1998. 

The “Sewell Convention” provides that the UK Parliament will not normally legislate for matters within the competence of devolved assemblies or which would affect devolved institutions. It is clear that the repeal of the HRA, unless it is replaced by near-identical provision, will alter both “the legislative competence of the Northern Ireland Assembly” and “the executive functions of Northern Ireland Ministers or departments.” As far as Northern Ireland is concerned, therefore, repeal of the HRA would require a legislative consent motion in the NI Assembly. Given the current public positions of the various parties, such a motion is unlikely to be approved for presentation by the Executive and, even if it were to be introduced into the Assembly, would almost certainly be met with a Petition of Concern and thereby fail to achieve the necessary agreement. 

Northern Ireland is a divided society and, while the likely failure of a legislative consent motion would contribute to the constitutional crisis that the scrapping of the HRA would inevitably bring, the region will not speak with one voice on the issue. In contrast, Scotland and perhaps Wales will. Both devolved governments have made clear their opposition to the proposals and the assumption must be that legislative consent motions will not be passed. 

In these circumstances, the UK Government has perhaps three options. First, withdraw the proposals, second, repeal the HRA only in respect of reserved and excepted matters and third, use parliamentary sovereignty to override the devolved administrations and legislatures. The second option might lead to a patchwork of human rights regimes across the UK and further divisions across the Union while the third would definitely create a constitutional crisis. When combined with the unknowns surrounding the EU “in-out” referendum, these proposals, supported by the avowedly unionist Conservative Party and, as far as we can see, by unionist parties in Northern Ireland, pose a real threat to the United Kingdom as presently constituted.

This blog is taken from a platform peice written by Brian Gormally, Director, CAJ which can be found here