Fighting the Repeal of the Human Rights Act
Brian Gormally, Director Committee on the Administration of Justice
This paper analyses the impact on rights protection and society in general in
Northern Ireland of the repeal of the Human Rights Act (HRA)
Repeal, as proposed by the Conservative Party,
•Would be a regression in rights protection
•Will not be an opportunity for the enhancement of human rights standards
•“Incorporation” of ECHR involves jurisprudence as well as text
•Would breach the Belfast Good Friday Agreement
•Would breach the “Sewell Convention”
•Would provoke a constitutional crisis in terms of the governance of the Union
The paper identifies the arenas in which the repeal of the HRA can be fought.
Threat or Opportunity?
Some have argued that the construction of a British Bill of Rights is an opportunity to
enhance human rights protection and argue for a Northern Ireland Bill of Rights
“Breaking the link” between the European Court and the British (i.e. UK) courts in
itself would diminish rights protection – international oversight is, in itself, a way of
controlling the unfettered power of the national state
Clear threats to human rights protections in the way proposals argued:
universality of human rights v. “British” values
human rights accrue to every human v. “foreign nationals” treated differently and
rights are dependent on the proper exercise of “responsibilities”
even enemies deserve human rights v. ECHR should not bind the actions of British
military forces overseas
How does knocking down one of the pillars of the Belfast/Good Friday Agreement
bring an opportunity to erect one that has never been
built (Bill of Rights)?
Definitely a threat – prevent regression!
Importance of HRA to Northern Ireland
Incorporation of ECHR was a basic ingredient of Belfast Good Friday Agreement –
endorsed by referenda North and South and by Anglo-Irish Treaty
“Incorporation” cannot just mean repeating the text of the ECHR (or most of it) in
a UK statute - also involves “bringing in” the jurisprudence developed by the
Court and other Convention bodies
This view of incorporation is completely recognised by the HRA
Repeal (unless replaced identically) would breach the Agreement, breach faith
with the people of Ireland and with the Irish Government
Note also that the police reform process and the building of a new PSNI in which
all could have confidence is based firmly around the HRA and Convention rights
Would the Repeal of the HRA Breach the Sewell Convention?
“UK Parliament would not normally legislate with regard to devolved matters
except with the agreement of the devolved legislature”
Repeal of the HRA will alter both “the legislative competence of the Northern
Ireland Assembly” and “the executive functions of Northern Ireland Ministers or
departments” since both must abide by Convention rights as defined in HRA thus
triggering need for legislative consent motion from NI Assembly
NI Assembly (narrowly) passed a non-binding motion on 1 June opposing repeal of
HRA but in any event a LCM even if passed by Executive would trigger Petition of
Concern meaning majority of both nationalists and unionists – highly unlikely
Threat to the Union?
NI is divided on the issue – Scotland and Wales seem not! However, LCM will not
get through in any jurisdiction
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
Second option might lead to a patchwork of human rights regimes across the UK third would definitely create a constitutional crisis
When combined with the unknowns surrounding the EU “in-out” referendum,
these proposals pose a real threat to the United Kingdom as presently constituted
Fighting the Repeal of the HRA – How?
CAJ will help fight the repeal of the HRA in the following ways:
•If consultation is published, make a robust contribution to the debate and
encourage others across the UK and Ireland to do likewise
•Work with colleagues across the UK to defeat the proposals in the UK Parliament
•Work with colleagues in the Republic and directly to press the Irish Government
and political parties to make clear their opposition to the proposals
•Make the arguments against the proposals in NI with a view to denying a LCM
•Continue to press for a “HRA+” Northern Ireland Bill of Rights
•Maintain the importance of direct links between the UK jurisdictions and
international covenants ratified by the UK and work
for incorporation where appropriate (e.g. the
Convention on the Rights of the Child)