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..

  • A couple of days back Iain Dale had an item (yes — and I always use Carex hand-wash afterwards, even if it’s the remaining 1% of bacteria that really worry me).

    Under a headline, An Inspector Calls, Dale had resurrected a Tory poster from 1929:

    Socialism would mean inspectors all round.
    If you want to call your soul your own vote Conservative

    To me that felt a bit of déjà-vu all over again. It sent me in search of Ronald Blythe’s marvellous essay, The Salutary Tale of Jix, the second chapter of The Age of Illusion.

    For the irony in 1929 was that the Tory Home Secretary (one Joynson-Hicks) was far more repressive than any alternative. Since the alternative, after the 1929 election, was JR Clynes, undoubtedly so. Here is Blythe getting up to speed on Joynson-Hicks:

    The Home Office could have been invented for Jix and he for it. His nature and its function closed with each other in inseparable embrace. Here was the seat of awe, if not of majesty. Here were the brakes, the cold douches, the wet blankets, the Great Book of Don’t, the little cane and the big stick, the king’s ear, the dear old codes all laid out in lavender, the Union Jacks, and the succulent rubber stamps, all of them, though dusty from disgraceful neglect, in splendid working order. Jix entered upon his heritage with undisguised joy.

    ‘But what do you do there?’ somebody asked, mystified by so much delight. Jix hesitated until the truth dawned on him. ‘It is I who am the ruler of England!’ he said. And, in a way, for the rest of the twenties he was just that. The Home Office, he soon discovered, was stuffed with everything a person such as he could ever wish for. There was no need to seek new legislation for police powers, cleaning up London, keeping foreigners out, suppressing nasty modern books, raiding art galleries, saving the Church of England from its bishops, and vetting sexual behaviour at all levels— it was there, in his exciting Home Office. His power, if he cared to use it, was dazzling. And as nothing upset Jix so much as an unenforced law, the country woke up to find itself infamous. In vain it protested.

    Subsequent Tory Home Secretaries (Maxwell Fyfe? Henry Brooke? Michael Howard — who also gave us Section 28?) have not all been liberal souls. The prospect of Dominic Grieve at the Home Office, Damien Green running immigration policy, with weirdos like Mad Nads Dorries in the wings, and Littlejohn, Jan Moir, Melanie Phillips dictating the agenda, chills me not a little. Particularly if The Sun has to be kept on side.

    After all, the whole point of any Tory re-write of the HRA (as Lord Phillips says) is to weaken the liberties of the individual.

  • The Spectator

    Brian

    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.

    Have we not had this stupid bloody conversation before?

    Did Dickson not blow this codswallop out of the water?

    Brian, do you imagine if you just lie low on a subject for a few months, and then resurrect the same views and arguments that failed so badly last time, they’ll just slip by?

    Three words, Brian. Give. It. Up.

  • Bob Wilson

    Brian your references to a Bill of Rights being ‘in limbo’ and the fact that the SDLP Professor has been urging local politicans to get on with implementing ‘the range of reforms in the Agreements including an NI Bill of Rights’ perplexed me.
    There is NO commitment to a Bill of Rights ‘in the Agreements’
    The Conservatives have said there will be no seperate Bill of Rights. Are you hoping Labour will rush something through in their dying days?
    Even if they did it would surely – giving the overlaps you mention – probably be superceeded by the Conservatives UK-wide Bill?
    The idea that Dominic Grieve and the Conservatives will either introduce or (in the event of a Labour Act) allow any NI specific social and economic rights to remain is laughable

  • Brian Walker

    I’m no partisan on the subject, not at all, and I recognise that the decision on having an NI Bill was left to the locals – but if it meant nothing at all, why set up a commission? The fact of devolution suggests the possibility of a Bill in each jurisdiction and care is needed to avoid clashes with any UK Bill. But my main point remains: attempts to reduce the impact of the Human Rights Act are likely to founder on closer examination and would in any case be resisted by the courts.

  • Mick Fealty

    Bob,

    I think you should note (and Jeff Dudgeon if he’s reading this, since I think this misunderstanding originates from a verbatim report he gave us a few months, that Professor Harvey is not a member of the SDLP or any political party.

    It should not matter anyway, since the focus of Brian’s post is Human Rights, not party politics.

    Let’s just try and keep on the right side of the truth as we’re going on…