The new Conservative government appears to be moving fast to enact a new British Bill of Rights to replace the Human Rights Act of 1998 which is one of the cornerstones of the Good Friday Agreement. Tory dislike of the HRA has nothing to do with the Agreement. Indeed as so often happens, Northern Ireland doesn’t figure in their thoughts. The Conservatives are targeting decisions of the European Court of Human Rights in Strasbourg which in their view makes it too difficult to carry out pressing wishes of the government, such as expelling Islamist undesirables from the UK, or foisting actions of them which they utterly oppose, like giving prisoners the right to vote. It also plays to right wing Conservative loathing of too much interference from Europe generally. The situation isn’t helped by the ambiguity which requires national jurisdictions to “ take account of” judgments of the Strasbourg court. Some top judges regard these rulings as binding, others, influential but not binding.
Pressure is mounting on the government to reveal its plans for scrapping the Human Rights Act and publish the proposal for a new UK bill of rights. Michael Gove, the new justice secretary, will seek to enforce the policy after the Queen’s Speech. Some Westminster sources suggest that it could be implemented within a hundred days of the new government entering office.
Schona Jolly, a senior human rights barrister at Cloisters, said: “Pressure should be put on the government now to publish the draft so that a well-informed factual debate can begin in earnest. The guessing game needs to be ended immediately.
“Grayling put out a fairly detailed policy document last October, which Dominic Grieve, the Tories’ former attorney-general called a “recipe for chaos”. Perhaps this is why the bill was not published before the election, as had been promised.” The Human Rights Act is tied into the Scottish devolution settlement, and indeed that of the Good Friday Agreement. It’s n
One of the biggest concerns is where this new bill will sit within the devolved union and Northern Ireland.
“The real fear is that the Conservatives have a hidden agenda – leading Britain, or perhaps just England – out of the European Convention on Human Rights altogether. There is the suggestion of a postcode lottery of human rights, the tiers depending on where in the Union you live, or whether you are a EU national or otherwise.”
“It will be legislatively, practically and politically impossible for Britain to disentangle herself from the web of international treaties, and domestic devolution settlements into which she is tied.
Conservative proposals presented by the then Justice Secretary Chris Grayling for the manifesto jars with developments in human rights law and devolution.
Our reforms will mean that:
The European Court of Human Rights is no longer binding over the UK Supreme Court.
The European Court of Human Rights is no longer able to order a change in UK law and becomes an advisory body only.
There is a proper balance between rights and responsibilities in UK law.
Our proposals are grounded in two basic legal facts.
There is no formal requirement for our Courts to treat the Strasbourg Court as creating legal precedent for the UK. Such a requirement was introduced in the Human Rights Act, and it is for Parliament to decide whether or not it should continue. Many European countries, including Germany, do not place such a requirement on their national courts.
In all matters related to our international commitments, Parliament is sovereign
The Constitution Unit’s new report Devolution and the Union gives this verdict on Conservative ideas for a British Bill of Rights
Devolved legislatures have developed human rights and equalities regimes increasingly distinct from those applying in England. Changes introduced by the Wales Act 2014, for example, could lead to Wales passing legislation on the lines of the Scottish Commission for Human Rights Act 2006.
In addition, legislative consent motions by the devolved government to fresh ‘repatriating’ UKECHR legislation would by no means automatically be forthcoming. If a UK government wished nonetheless to go ahead, it might be able to do so in respect of England only. This would not only frustrate its intentions but also risk increasing sentiment in the rest of the UK in favour of further weakening or even leaving the union. The Northern Ireland Human Rights Commission originated in the Belfast Agreement, an international treaty. Opposition to any attempt to water down the Agreement’s guarantees could be expected to be particularly strong, and have repercussions on the stability of the 1998 peace settlement as well as implications for the UK’s relations with the Republic of Ireland.
My old friend Joshua Rozenberg has good advice for Michael Gove
So the new justice secretary should order his officials to start afresh. They should tell him what can be achieved by legislation, what can be achieved by diplomacy, and what can be achieved only by denouncing the European convention on human rights — with all the diplomatic consequences that would follow.
Then he should publish a green paper for consultation followed, in due course, by a white paper. If that attracts cross-party support, he can proceed to a draft bill and, ultimately, legislation in a couple of years from now. By then, however, he will come to realise that there is really no need for any significant reform at all.
But will Michael Gove listen?