Bertie’s separate agenda should include warming Theresa May’s ear about the Human Rights Act

Following in Bertie Ahern footsteps what should the  two governments negotiate about bilaterally as the Brexit talks proceed?

In the Irish Times Noel Whelan argues that “ Ireland and UK must renegotiate Belfast Agreement”

The EU has been described as a cornerstone of the Belfast Agreement. This is more than just constitutional flannel. The agreement specifically provides, under stand 2, article 17, for the North-South Ministerial Council to facilitate co-operation and co-ordination in EU matters. The council’s remit in this area would clearly be altered by the UK’s exit from the EU.

The British would see this as unnecessary and far too sweeping. The references to the EU in the GFA are few and do not contemplate either state quitting. The open border is the obvious big exception. It was taken for granted a consequence of the single market.  It is being discussed between the governments already with regard to the common travel area. While trade and customs matters are supposedly off limits, it is very hard to believe that contingencies aren’t being privately examined. I can’t imagine Bertie Ahern letting a little thing like the Art 50 rules stand in his way.

The north-south bodies are underworked but do not depend on the EU for their agenda.  The Human Rights Act (HRA)  is a different matter.  It incorporated the European Convention on Human Rights into UK  – and therefore NI law –  “ taking account of” the rulings of the European Court in Strasbourg. The ECtHR is not, repeat not, an EU institution but all member states conform to it . The HRA was entrenched in the GFA which was ratified as a UN treaty.   It is a cornerstone.  From it stem the rights and equality provisions developed from the GFA.

Whelan agrees but asserts that:

Britain is now likely to reverse that legislation soon.

The position is nowhere near as firm as he claims but the concerns are understandable.  As Home Secretary previously and now as PM, Theresa May and the Conservative right  have  been flirting with replacing the cornerstone UK Human Rights Act with a British Bill of Rights for years .  This would limit  the influence  of  the rulings of European Court of Human Rights at Strasbourg.  At present the UK Supreme Court is obliged to “ take account of” ECtHR  rulings  and usually follows them. This  obligation would be reduced in unspecified ways. The delay in producing an official draft of a British Bill suggests to many that the attempt is not worth the candle.

May’s main problem with UK court rulings  on the basis of the Convention  is that  they created long delays in  expelling inflammatory jihadist preachers like Abu Qatada.

In 2015 Nick Timothy then her former chief of staff in the Home Office  increased pressure for a British Bill and if necessary withdrawal from the Convention itself. Timothy is now joint chief of staff in No 10.

May’s latest word on the subject in January is that she wishes to reform the UK’S human rights framework by  replacing the HRA  with a British Bill.

“We will consider this important reform further once we know the arrangements for our exit from the EU and the constitutional effects this exit will have.”    

British  supporters  argue that any British Bill would if anything enshrine human rights more firmly if appeals to the Strasbourg court were to be restricted. But the obstacles to change are many and various.  Opposition to  change is implacable in SNP  Scotland and strong if inevitably discreet among  the legal establishment.

Ireland is likely to argue that any unilateral change in the international treaty is in breach  the of GFA.

Many believe that the weight of opposition has already killed off any  prospect of change. But  May still maintains the formal position. She has never referred to the problem of the GFA  – or for that matter Scottish opposition. Her views seem dominated  by specifically English neuralgia over  jihadist deportation and an  ECtHR ruling  giving prisoners the right to vote which inflamed  right wing  feelings against “a foreign court.”  In turn Little Englander sentiment of this kind  is bound to provoke a reaction from Irish opinion ranging  from the government to Sinn Fein who  have resurrected the provision in the GFA for separate NI Bill of Rights.

The matter may seem recondite.  While it’s inconceivable that actual human rights will be affected, concerns are not invalid as  the guarantees are not completely secure. The uncertainty gives Sinn Fein another stick to wave at the British government and unionists.

What’s most worrying of all is that this is a problem that Theresa May seems not even to have taken under her notice. The Irish government should urgently  ask for guarantees against change as far as Northern Ireland is concerned, as part of of their contribution to the interparty talks. Let the English have an English Bill if they want it. And let Theresa May  contemplate what that would do to the cause of her ” precious, precious Union.”

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