By Colin Murray
Reader in Public Law, Newcastle Law School
The Belfast/Good Friday Agreement 1998 (GFA) and the Human Rights Act 1998 (HRA) are intertwined elements of the UK Constitution. The extent of this connection might not be immediately evident on the text of the GFA, which commits the UK Government to ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights’ (ECHR). With human rights reform coming to the forefront of Conservative Party policy, this wording has encouraged a range of restrictive interpretations regarding the impact of the GFA.
It has been claimed that the GFA is not undermined by the proposals contained within the Bill of Rights Bill (in the consultation response accompanying the Bill). Amid the contest for the Conservative Party leadership, and the keys to No 10, it has also been asserted, by the Attorney General, that the Agreement poses no restraint on ministers going even further and withdrawing from the ECHR. Neither of these claims provides much of a basis beyond a partial and decontextualised reading of the GFA.
These statements appear to expect that they will be taken at face value, but the Bill’s Impact Assessment is more circumspect, pledging that the Government will ‘continue to consider carefully the impact of any reforms to Northern Ireland’. When something as fragile as Northern Ireland’s governance is at stake, it would have been preferable to be more confident on these issues before tabling the Bill.
Northern Ireland and the significance of human rights
Human rights breaches, flagged by the European Court of Human Rights, were a significant factor throughout the Northern Ireland conflict. From as early as the Forum for Peace and Reconciliation in 1995, building on the Downing Street Declaration of 1993, the UK Government acknowledged that enhancing the existing human rights protections provided by individual petition to Strasbourg would be part of its proposals. In the GFA the UK Government thus committed to building on the UK’s existing international law commitments by incorporating the ECHR into Northern Ireland’s law.
The Human Rights Bill was already before Parliament during the GFA negotiations; the participants appreciated that this was to be the mechanism by which the UK Government would fulfil these commitments. This means that, to fulfil the requirement of “incorporation”, any UK human rights reform must be benchmarked against the HRA. The GFA also provided for the establishment of the Northern Ireland Human Rights Commission (NIHRC) to safeguard these commitments and laid the groundwork for augmenting HRA rights with a specific Bill of Rights for Northern Ireland. This speaks to the GFA setting up an ECHR-plus model of rights protection.
Withdrawal from the ECHR would therefore be incompatible with the GFA. The ECHR colonies provision, Article 56, cannot be used to single out Northern Ireland; it is a part of the UK, not a colonial territory and, in any event, this provision is about extending the operation of the Convention beyond the state, not substituting one territory for another. An attempt to reserve its operation to Northern Ireland alone, moreover, could not be accommodated within the terms of Article 57 as it would undermine the purpose of the treaty (that states must ‘secure to everyone within their jurisdiction the rights and freedoms defined in … this Convention’).
Beyond that extreme proposition, however, the GFA does not prevent human rights reform, but it does condition any reforms that are intended to be compatible with it – something that ministers might be thought to be particularly alive to after the Brexit debates around the Northern Ireland Protocol. It is possible to rework the UK’s domestic human rights arrangements in a way that is compatible with the UK’s commitments regarding Northern Ireland. The question is whether any reform meets the GFA’s requirements.
The most serious issue with the Bill, in terms of the UK’s GFA commitments, is that although it retains the incorporation of the same text of the same set of ECHR rights in the UK’s domestic legal systems as the HRA, it introduces new restrictions upon how the domestic courts interpret these rights, the remedies they can provide and the extent to which they should follow the Strasbourg Court’s jurisprudence.
The Bill, moreover, provides new excuses for public bodies with regard to rights obligations, such as when they are acting in line with subordinated legislation, which includes Northern Ireland Assembly legislation. This undercuts both the degree to which the rights are incorporated and remedies are available.
The Bill also restricts those who can initiate rights challenges, and does not, as introduced, make provision for the special capacity of the NIHRC to institute rights challenges. In short, passing this legislation would attenuate the rights protections applicable to Northern Ireland, requiring more claimants to seek to vindicate their rights at Strasbourg.
If a replacement for the HRA is to fulfil the UK Government’s ambitions, and restrict the scope of the rights, avenues for remedies and impact of Strasbourg jurisprudence, then the only way to achieve this in line with the GFA is to adopt a variable geometry of rights protections within the UK. These reforms, applied across the UK, fail to address the special protections which the GFA requires for rights in Northern Ireland.
As has become painfully apparent in the context of Brexit, however, actively separating Northern Ireland out from broad UK constitutional change will raise profound Unionist concerns. Further, failing to attend to Northern Ireland’s particular constitutional protections will alienate everyone else. Ham-fisted human rights reform therefore risks aggravating Brexit’s already all-but unsustainable pressure on the GFA.
No case has yet been made that the Bill of Rights Bill’s provisions meet the GFA’s incorporation requirements, and indeed it would be impossible to make any such case on the Bill as introduced. The erosion of the degree of incorporation to the bare text of the rights and the lack of clarity on the impact on the NIHRC are not reconcilable with the GFA’s ECHR-plus commitments. The lack of attention to these concerns, however, is in keeping with broader criticisms of the sloppy drafting of the Bill. It speaks to proposals rushed into public view as part of the frenetic policy energy which accompanied the dying days of Boris Johnson’s premiership. What comes next depends upon his successor.