The surprising recommitment of the new UK Justice Secretary Liz Truss to a new British Bill of Rights to replace the Human Rights Act adds a new complexity to the Brexit debate. If there are disagreements over the legitimacy of applying the Brexit referendum result to Northern Ireland and Scotland, there can be none about the central importance of the HRA to the Good Friday Agreement.
Yes it’s true that the HRA is not part of the EU but EU membership requires compliance. More to the point, the HRA is firmly embedded in the GFA and the British legislation that implements it.
In the short period when Theresa May was campaigning for the Conservative leadership, she did an abrupt U turn from her position of only a few weeks previously to consider withdrawal from not only the Court but the European Convention. There was no majority in parliament for it she said.
But now Truss has resurrected the British Bill which would not necessarily involve leaving the Convention. Conservative critics blame interpretations of the HRA for the inordinately long time it takes to deport hate preachers like Abu Qatada or bring to trial the likes of Anjem Choudary. These were the bane of May’s life as Home Secretary and she didn’t try to hide her frustration. In Ireland north and south concern centres more on defending the new justice system from abuse, as a legacy of the Troubles. For that the HRA is the cornerstone. The gap in concerns is glaring.
The Times’ Irish section has quickly identified “the threat to the Good Friday Agreement.”
Darragh O’Brien, foreign affairs spokesman for Fianna Fail, said that Britain owed the Irish government an explanation. “The British justice minister’s confirmation that Britain will now go ahead with unilaterally repealing a key piece of legislation backing up the Good Friday agreement is a source of serious concern,” he said.
“The stability of the settlement in the North can never be taken for granted. The Irish government is a co-guarantor of the Good Friday agreement and at the very least there needs to be proper consultation by the British if they are going to repeal legislation that underpins the agreement.
“In addition, as we seek to mitigate the worst effects of Brexit, we will need to be able to engage fully with Britain on the basis of sound information. I would like to see Mr Flanagan seek an explanation from Britain on why they are proceeding with this change, when he had previously been assured that they would not.”
The House of Lords EU justice sub-committee had warned that a bill of rights would also risk upsetting devolution settlements and would face opposition from Stormont and Edinburgh.
However all may not be lost. As the Times’ The Brief (£) reports:
A new UK Bill of Rights would have at least to include all the rights of the Human Rights Act even if new ones were included. However there is backing in Whitehall for trying to define the scope of some rights more closely, such as limiting the possibility of claims brought against British troops in Iraq
English ministers, have persistent blind spots about devolution to Scotland Wales and Northern Ireland and seem unaware of how it complicates their pet political projects. For all his faults this did not apply to her predecessor Michael Gove who was thought to have kicked the British Bill into the long grass.
A British Bill would have a tough passage through parliament and may require the consent of Holyrood and Stormont. These are conditions which critics are seeking to apply to Brexit and greatly add fuel to the fires of controversy.