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 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.
Much of the debate on the Human Rights Act 1998 is of the ‘for or against’ repeal variety. Given the constitutional consequences, this is understandable. The aim here is to consider what happened in Northern Ireland during the attempt to secure a Bill of Rights, and suggest why it might still be of interest.
As is well known, the Northern Ireland Human Rights Commission submitted advice to the UK Government on 10 December 2008 on ‘A Bill of Rights for Northern Ireland’ (I was a Commissioner and endorsed the document; not all Commissioners did). The advice followed an extensive consultation that included much thoughtful reflection on how to frame a new human rights instrument in such a contested context. As you would expect of a democratic conversation, there was principled disagreement throughout. Elements of the process and outcome are worth recalling.
First, it arose from the Belfast/Good Friday Act 1998 (a peace/political agreement) and the remit made plain that it should advance ‘rights supplementary to those in the European Convention on Human Rights’. The work was also to draw upon ‘international instruments and experience’ as well as ‘reflect the particular circumstances of Northern Ireland’. Convention rights were therefore a starting point.
Second, the job was given to an independent human rights commission (the Northern Ireland Human Rights Commission). The fairness or otherwise of this decision is a matter of debate, but it is a point to note when pondering any new mechanism that might lead to a Bill of Rights. If a major critique of the Human Rights Act really relates to ‘ownership’ then process should, one would expect, feature prominently in any credible consultation proposals.
Third, a lack of political consensus (even on the meaning of the terms of reference) was always evident. It is too easy to blame this on Northern Irish divisions. Consensus on anything worthwhile will be tough to achieve anywhere on matters of such high principle.
Fourth, although there was the option to recommend repeal and replacement (in a way that would respect the British-Irish Agreement 1998), the Commission decided on retention of the Human Rights Act and re-enactment of the Schedule 1 Convention rights alongside supplementary rights in new legislation. The Northern Ireland Bill of Rights Act would thus incorporate and build on Convention rights, and leave the 1998 Act in place. The motivation was clearly to respect the Agreement, and protect gains made in Northern Ireland even if a future Westminster government opted for repeal.
Finally, the Commission recommended supplementary rights that included social and economic guarantees. The advice embraced the right to health, to an adequate standard of living, to accommodation, social security rights, and the right to work (among other matters). Although the potential impact of such constitutional measures should not be overstated, implementation would have made a difference, and those rights would be particularly useful now. Other elements of the advice on equality, democratic rights, the right to identity and culture, language rights and the rights of victims would also have made a practical difference. Even though it faced governmental rejection, it remains work that is worth revisiting. The advice did foresee where we might end up, and the Commission had to grapple with many of the questions arising now.
The optimism of a moment when Convention rights seemed like only the beginning is now replaced by the defensive and principled pragmatism of ‘hold on to what you have’. Strategically, and in many other ways, this makes perfect sense for human rights advocates. The Northern Ireland Human Rights Commission evidently realised that it might come to this, and crafted its advice accordingly. If another Bill of Rights process does emerge (especially if the expressed concern is with ‘ownership’) it is worth remembering all the preparation already completed, and the scale of what might be involved.
Colin Harvey is Professor of Human Rights Law at Queen’s University Belfast
(Suggested citation: C. Harvey, ‘HRA Watch: Reform, Repeal, Replace? Revisiting a Bill of Rights for Northern Ireland’ UK Const. L. Blog (10th Jul 2015) (available at https://ukconstitutionallaw.org/))