New rights settlement needed as top lawyers clash with the politicians

A confrontation is hotting up between the legal establishment and politicians of both main UK parties over the future of what has become a fundamental document of the UK’s uncodified constitution, the Human Rights Act. This has implications for Northern Ireland. The Conservatives identify what they see as key flaws in the workings of the Act and are pledged to replace it with a new British Bill of Rights. Labour have clashed with the judges but are divided over Jack Straw’s ideas for a softer Bill of Rights and Responibilities. Main bones of contention over anti-terrorist detention laws and repatriation of suspects and the right of appeal for immigrants are ( and I think deliberately) largely ducked by Straw, who basically approves of the HRA but doesn’t want to sound soft on terrorism. By contrast, Dominic Grieve, the shadow Justice Secretary, has a political need to slam the Act as a criminals’ charter. But the lawyers are having none of this. They sense that the parties are playing politics and want to flush them out. In a recent Daily Telegraph interview, Lord Phillips of Matravers the President of the new Supreme Court suggested that any attempt to weaken or undermine the act would provoke a grave rift with the judiciary. On a stand-alone British rights bill, he says: “I find it difficult to envisage such a proposal being satisfactory.” And now the DPP for England and Wales has chipped in with a fierce putdown of the politicians. Rather than a “ criminals’ charter, the Act is a charter for victims, he insists. “It would be to this country’s shame if we lost the clear and basic statement of our citizens’ human rights provided by the Human Rights Act on the basis of a fundamentally flawed analysis of their origin and relevance to our society.” So how does a separate Bill of Rights for Northern Ireland, currently in limbo, relate to this?

I see Professor Colin Harvey has written an elliptical article urging local politicians to get a move on with implementing the range of reforms in the Agreements including an NI Bill of Rights, while at the same time avoiding institutional tinkering that could undermine the settlement (a voluntary coalition and a smaller Assembly? He doesn’t specify). The best reasons for a local Bill are first, that local origination alongside the Republic would be more acceptable to nationalists and two, that it would specify the rights stemming from the distinctive NI experience, entrenching, and if agreed, adding to, the main elements of the Agreements. Problems of compatibility could arise with any new British Bill, especially if social and economic rights are included, where the UK and devolved governments might disagree. A UK “right” to free medical treatment for example is unenforceable in Scotland because Health is devolved. A “ right” to any particular state pension formula in an NI Bill is equally unenforceable because most welfare provision is not devolved. And although justice and policing may in the end be transferred to Stormont, any NI attempt to write local laws applying to international terrorism are fraught with difficulty. More and more, the judges, in particular the new Supreme Court, will be the arbiter over fundamental rights. Social and economic rights are less obviously justiciable and are more likely to remain in the political sphere. A new human rights debate is set to begin. Remember, any Bills of Rights, whether for NI or British Rights, must be passed by Westminster, and therefore have to be mutally compatible and acceptable..

Brian Walker

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London