Editors’ note: The blog is inviting constitutional lawyers to comment on the UK Government’s proposal to repeal and replace the Human Rights Act. We continue with a post by Prof Colin Harvey, Professor of Human Rights Law at Queen’s University Belfast. You can read the other contributions in this series here. Posts on the topic are welcome.
If your principal political objective is Irish unity, Scottish independence or Welsh independence why would you care about retaining a UK-wide piece of legislation promoted by an essentially ‘unionist’ government in the late 1990s? Why would you have any concern at all for a consistent UK-wide approach to human rights?
These questions arise as the new British Government at Westminster embarks on its plan to scrap the Human Rights Act 1998. The Irish Government, the Scottish Government, the Welsh Government, and parties such as Sinn Féin and the SDLP have all robustly denounced the move. It is intriguing then that a measure that enjoys such broad support from around the UK, and across these islands, is under such direct threat from the ‘party of the union’. Why risk such constitutional upset (and raise so many profound constitutional questions) over what sounds at present like a minor adjustment rather than a major overhaul? As is well known, the 1998 Act attracted a level of hostility early on that never really subsided. Although this scepticism often deployed the language of ownership (and frequently neglected this serious legal attempt to ‘bring rights home’) a suspicion emerged that the inclusive reach of the law was unsettling for some. Surely human rights could not apply to everyone; could they? Even worse, in the minds of critics, was the sense that a ‘European court’ was adopting deliberately unhelpful interpretations of Convention rights. Long before the October 2014 paper from the Conservative Party, there was a mood among sceptics that the attempted domestication of human rights had failed (and that too many of the wrong sort of humans seemed to possess human rights). A new Bill of Rights is therefore expected to deliver on this renewed patriotic spirit and confused sense of moral absolutism. A more unconducive context for such a step is hard to imagine, but the British Government still appears determined to press ahead.
In Northern Ireland, the Belfast/Good Friday Agreement 1998 is rightly applauded for its transparent commitment to human rights; with its strong endorsement of the European Convention and the expectation that a Bill of Rights might follow. The Human Rights Act (in combination with other constitutional and international legal measures) is one mechanism for carrying these pledges into a dualist legal system. The Act matters so much precisely because it is one of the main formal instruments (the Northern Ireland Act 1998 being one of the others) that realises the normative rights-based guarantees contained within a political/peace agreement. As a result, the Convention rights are now securely embedded within the governance of Northern Ireland, and at the heart of devolution. As co-guarantors of the Agreement, the British-Irish intergovernmental context is also politically and legally relevant.
This is not to conclude that the Human Rights Act dominated the debate in Northern Ireland. During much of its life, it should be recalled, the focus was often on a new Bill of Rights that would supplement it. The stalemate on that project means that the Act assumes even more pronounced significance for some, but not all. The DUP, for example, currently expresses scepticism about the Act (and the European Court of Human Rights) and notes its preference for a UK-wide Bill of Rights. For many in Northern Ireland (again, not all) talk of repeal provokes deep unease about the consequences for the Belfast/Good Friday Agreement 1998, and concern about disrespect for negotiated constitutional gains. Even worse is the justified anxiety that this heralds an active retreat from what many saw as merely the starting line. So, the debate proceeds in an odd way, with the parties of Irish, Scottish and Welsh republicanism/nationalism joining with the Labour Party in calling for the retention of what already looks strangely like an integrative UK-wide ‘bill of rights’ (Human Rights Act 1998), and the Conservative Party, the DUP and some others (long-time unionist parties) leading the calls for change. The reasoning for each position is nuanced and distinct (the political/devolved context figures prominently in Northern Ireland, Scotland and Wales) but the picture remains fascinating. How instructive it is to watch unionist political parties pushing forward with plans that risk further fracturing an already fragmented union.
Many others have noted how unconvincing the arguments for scrapping the Act are. The debate is overloaded with wilful misunderstandings of human rights law, a muddled brand of ‘Euro-scepticism’, and distorted forms of constitutional patriotism. Even if the will was there, it is open to question whether the UK could ever be put back together again in anything resembling traditional conceptions. While the arguments for repeal are unpersuasive, and the project will face formidable resistance, the real significance for Northern Ireland rests on how any reforms will impact on the guarantees around the European Convention on Human Rights. A measure that displaces or erodes the fundamental significance of the European Convention, and thus undermines its central place at the core of Northern Ireland’s new arrangements, will represent a breach of the Belfast/Good Friday Agreement. Moves to scrap the Act raise this fear and thus the strong reaction. In political terms, the democratic mandate of the new British Government confronts the all-Ireland mandate that underpins the Agreement (and the legal guarantees that followed). What must be underlined is the commitment in the Agreement to incorporation of the European Convention, its role as an essential safeguard, and the fact that the stalled Bill of Rights process (in Northern Ireland) was always intended to be Convention plus. It is worth remembering too that the Northern Ireland Human Rights Commission, in its advice on a Bill of Rights, did suggest a (‘Human Rights Act plus’) way forward.
Is Westminster-style constitutionalism equal to the challenges and opportunities presented by the new relationships across these islands? Is it likely that the British Government will in the end retreat from such a clear manifesto commitment? How will it manage devolved dissent? Might a defeat be inflicted within Parliament? Does it really want to test some of the fundamentals of the Northern Ireland peace process? In life as in politics, what you can do is not always what you should do; what is legally possible may not be politically or constitutionally sensible. Achieving its objective will be quite a task, and it may well lose. If not, and it opts to proceed, then finding a credible way to ensure the European Convention remains securely in place will be a priority for anyone genuinely committed to supporting a shared society in Northern Ireland based on respect for the human rights of all. As we reflect on these questions, it seems we will have yet another Bill of Rights process to engage with in the time ahead.
Colin Harvey is Professor of Human Rights Law at Queen’s University Belfast
(Suggested citation: C. Harvey, ‘HRA Watch: Reform, Repeal, Replace? Rights in a Fractured Union’ UK Const. L. Blog (1st Jun 2015) (available at http://ukconstitutionallaw.org))