The opening shots have been fired in a political battle over a British Bill of Rights. This will affect Northern Ireland, whether or not a local Bill is ever introduced. In the Guardian Charlie Falconer, the last Lord Chancellor to head the judiciary, attacks the Conservative aim of scrapping the present Human Rights Act, in order to reduce the influence in UK courts of the European Court of Human Rights, so often the last resort for civil liberties appeals. The Strasbourg courts importance was underlined only this week when it ruled that UK police powers of stop and search were illegal, contrary to rulings at all levels of the British judiciary. Strasbourg rulings are not mandatory but are never ignored. The European background to such rulings is influenced by wartime and Cold War oppression the British never experienced, but arguably and controversially, NI experience is different, however defined.The Tories would replace the HRA which operates under ECHR principles and replace it with entrenched ( i.e. very hard to repeal) British Bill of Rights. A basic aim is to increase pressure on judges and the police to take harder lines in terrorist cases over detention and deportation. Falconer explains the difference before and after the introduction of the Human Rights Act in 1999.
When the IRA bombed Birmingham in 1974, the government within days introduced draconian anti-terrorism legislation. The courts had no role in challenging that legislation. Instead they followed the lead the legislature gave in allowing civil rights to be compromised. The courts’ conduct in the course of the IRA trials that followed was deplorable, and gravely weakened the state in its fight against terrorism.
However, after 9/11 the courts because of the incorporation of the ECHR had a role to ensure that legislation did not infringe individual liberties to an extent not justified by the threat. And, despite criticism, they bravely undertook that role.
But that bravery isn’t always appreciated by Falconer’s old colleagues in successive Labour cabinets. Nor was it indeed by Charlie himself. On the contrary, they’ve fought many a running battle with the courts since 9/11. Legal guru Joshua Rozenberg objectively demolishes the Conservative case. He has a first class reputation for objectivity. But whatever Falconer may claim for Labour good intentions, both main parties are straining to achieve a similar result, the main difference being that Labour has given up the attempt to replace the Human Rights Act and now chooses to wage battles of attrition with the judges, relying on separate Acts like the Terrorism Acts to strike the balance between national security and civil liberties. Labours own feeble British Bill would al least entrench the HRA principles. HR campaigner Geoffrey Robertson QC here describes his ideal HR Bill, far stronger than the ECHR, entrenching jury trial, preventing raids on MPs offices without due process, halting extradition where the defendant could suffer disproportionate penalties and giving new guarantees for free speech. This heroic document will as they say, remain on file. The trend towards protecting public safety in the UK debate complicates the already tangled deadlock over an NI Bill and needs unpicking by legal experts in the universities, if they dare enter the discussion in the present climate. I could well imagine rowdy disputes in Belfast if or when J&P is devolved and dissident activity increases. Right away, MLAs would experience great difficulty over changing existing UK wide laws some of them mightnt much like.