The Northern Ireland Affairs Committee: Implications of the Bill of Rights for Northern Ireland
On 11 January 2023, the Northern Ireland Affairs Committee heard evidence from a number of witnesses on the implications of the Government’s Bill of Rights Bill for Northern Ireland. Witnesses included representatives from the Northern Ireland Human Rights Commission, the Rt Hon Baroness Hale of Richmond, and Sir Stephen Laws KC, Senior Research Fellow on Policy Exchange’s Judicial Power Project. The impact on Northern Ireland of the Bill of Rights Bill (better known as the “Rights Removal Bill”), a Bill which seeks to repeal and replace the Human Rights Act 1998 (“HRA”), was the focus of the session. As the HRA is seen to be a cornerstone of the operation of the Belfast/ Good Friday Agreement, repealing the Act could have serious consequences for peace and political stability in Northern Ireland.
What should a resident of Northern Ireland be concerned about with this Bill?
This was the first question posed by Conservative MP Simon Hoare, Chair of the Northern Ireland Affairs Committee.
Alyson Kilpatrick, Chief Commissioner of the Northern Ireland Human Rights Commission, responded by explaining that rights will not be as well protected as they currently are under the HRA. In response to a series of follow-up questions the Chief Commissioner went on to explain that the Bill ‘undermines universality fundamentally and misunderstands the issues it is trying to address’, in addition to ‘constrain[ing] judges from acting independently’. She later remarked that the ’beauty of human rights [is that] they apply to everybody regardless’. ’You can read more about universality, the principle that ensures that human rights belong to us all, and the way in which the Rights Removal Bill disregards this principle here.
The Chief Commissioner also made clear that the Bill does not reflect responses to the UK Government’s consultation, a reality which ought to be of additional concern to residents not just of Northern Ireland, but all residents within the UK who have had their voices ignored. You can read our detailed response to the Government’s consultation on the Rights Removal Bill here.
In the attached video clip, the Chief Commissioner and her colleague Colin Caughey, Director of Advice to Government, Research, and Investigations, go into greater detail on some of the detrimental impacts the Bill will have if enacted.
The Good Friday / Belfast Agreement
Although largely speaking in favour of the Rights Removal Bill, Sir Stephen Laws KC did acknowledge that ‘there are grounds to be concerned because of the Good Friday Agreement and it is important that this Bill should proceed in a process that respects the need for discussion with special reference to Northern Ireland’.
Indeed, the Chief Commissioner stated that the public in Northern Ireland are fearful that the enactment of the Bill will mean that the ‘Good Friday Agreement is somehow being revisited or ripped up’. She also addressed the ‘comfort’ experienced by residents of Northern Ireland in knowing that ‘other states in Europe had determined the rules and the Bill of Rights changes this fundamentally.’
Both Baroness Hale and Colin Caughey remarked that under the Bill, it is not clear whether the competence of the Northern Ireland Assembly will be limited by what the UK Courts say the Convention rights mean or by what the Strasbourg courts say the Convention rights mean.
The Republic of Ireland will continue to keep pace with Strasbourg via the ECHR Act 2003 and there is therefore a real danger that, as Social Democratic & Labour Party MP Claire Hanna queried, the Bill’s proposals will create discrepancies between Northern Ireland and the Republic.
Not only does the Bill threaten the Good Friday / Belfast Agreement, in response to a question from Conservative MP Robert Goodman, Baroness Hale explained that the Bill contains a diminution of rights and is therefore also difficult to reconcile with Article 2 of the Northern Ireland Protocol which sets out the UK Government’s commitment to ‘no diminution of rights, safeguards and equality of opportunity’ in Northern Ireland.
The attached clip details Baroness Hale’s concern that the Bill ‘goes against the Good Friday Agreement’.
Positive Obligations & Policing
A key way the rights in our Human Rights Act work is through the use of positive obligations. This means that the Government and the public bodies involved in our lives, such as social workers, doctors, teachers, and police officers, must take reasonable steps to protect us when we’re at risk of serious harm or loss of life. Clause 5 of the Rights Removal Bill seeks to limit the application of established positive obligations and prevent the emergence of future positive obligations. Even Sir Stephen Laws KC remarked that he could see a case for saying that what the Bill says about post-commencement positive obligations ‘goes too wide’. You can read our briefing on positive obligations and the Rights Removal Bill here and you can read about why staff in public bodies should be worried about the Bill more broadly here.
It is often the police who are tasked with giving effect to positive obligations under the HRA. In response to a question from Alliance Party of Northern Ireland MP Stephen Farry, the Chief Commissioner said that the impact the Bill will have on policing is ‘one of the most troubling areas’. As the attached clip explains, police officers are supportive of the HRA and maintain that it creates ‘a clear pathway for them to make difficult decisions.’ Not only does it protect citizens, it protects the police officers tasked with ensuring the safety of those citizens in carrying out their operational and investigatory duties.
Clause 3 read with Clause 12 of the Bill will do away with section 6 of the HRA which is what has made the greatest difference in terms of policing in Northern Ireland. This change, in addition to the changes surrounding positive obligations, will have drastic implications for the safety and security of residents of Northern Ireland, and the rest of the UK.
Access to Justice
As Baroness Hale rightly remarks, not only are there issues with the substantive implications of the Bill (positive obligations and other matters), there are a series of concerns regarding procedure and access to justice. The Bill seeks to introduce a permission stage in Clause 15, an additional hurdle for claimants seeking justice for infringements of their human rights. In light of this proposed change Baroness Hale raised the following question: ‘if you don’t have to get permission to bring proceedings for breach of your ordinary rights, why should you have to get permission for breach of your most fundamental human rights’.
The Northern Ireland Human Rights Commission was similarly critical of this aspect of the Bill, with the Chief Commissioner questioning the assumption that there is currently an abuse of process which has necessitated the introduction of a permission stage.
There was also agreement from all panellists that the Bill, if enacted, will result in more cases going to Strasbourg. In light of this, Colin Caughey raised the issue of costs and time involved in exhausting remedies in the UK, while the Chief Commissioner stressed that the ECtHR is a very different jurisdiction which offers remedies that will often not satisfy claimants in the same way domestic remedies such as injunctions can.
Chair of the Committee, Simon Hoare, drew on the prediction that more cases will go to Strasbourg in querying whether this might bolster the position of those who think we should leave the ECHR, a position which has gained greater prominence in recent months, with the Justice Secretary Dominic Raab remarking that departure from the ECHR is ‘not off the table’. Baroness Hale declined to respond to the Chair’s question on this matter.
What can you do?
In the course of the oral evidence session, the Chief Commissioner stated that the Rights Removal Bill ‘pretty much suggests we stay where we are, or go backwards.’ In order to ensure that human rights protections for residents of Northern Ireland and the rest of the UK continue to progress and not regress, we urge you to write to your MP using this template letter today and tell them why they must resist the Rights Removal Bill and stand firm on our Human Rights Act.
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