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.”



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  • John Spence

    It isn’t only about deportation of foreign terrorists after completion of their sentences, although that is very important There are several other examples including some recently exposed, of foreign rapists/murderers who have won the right, post sentence, to remain in the U.K. because of a claimed right to a family life or fear of persecution if sent to their home country.
    It’s crazy that a foreign rapist can walk up to his victim in the street, as happened this year, and the government cannot have him removed, because of a ruling by a foreign court. It’s a weak argument to claim only right wing people feel this way.

    Their is zero chance of Engliand only legislation. Nothing you have said is a reason for leaving victims at greater risk than they would otherwise be, including in Northern Ireland.

  • Yussarian

    Brian – perish the thought, but your writings are almost in danger of being seen as advancing a nascent and intermingled NI Nationalist and Unionist cause?

    I appreciate that not everyone will agree with this but for many nationalists in particular, the wider importance of common EU membership of ROI/UK to the GFA is too easily dismissed. Granted, Brexit in legal terms has little to do with it, and we have to recognise that the UK’s Supreme Court was correct in judging that exiting the EU would not violate it (as MU will no doubt confirm ) However, the legal, operative side of the GFA is only one part of what holds it together, the other is political support for it and the revised constitutional position of NI following what May has promised to be a “red, white and blue” Brexit. This has many nationalists now asking: can I still be comfortable with the idea of NI as a long-term option now that once again, “all has changed, utterly”?

    I am certain that is a huge, grumbling factor under the surface in the recent elections.

    Before the Brexit referendum I wrote a blog on this, ostensibly about NI as a whole, but with nationalist fears probably most prominent – essentially due to frustrations about how NI was being completely ignored by the UK media (and arguably still is). I was also becoming more and more uneasy with the whole British nationalist side of the entire referendum debate, and it’s almost industrial-scale dishonesty, led by reprehensible people like Farage, Johnston, Gove and many more to whom NI did not figure a single time on their radar. I doubt it still does. The DUP’s position on this beggared belief – no one is saying you can’t argue to leave the EU, but if you do, at least come up for some arguments as to why you think it will benefit NI and the people you represent there. On that – still nothing.

    In the interests of communicating this perspective, if anyone who considers them a unionist on this site, I tried to set out why Brexit was a worry for nationalists then and I hope it tries to explain things from that perspective, rather than being dismissed casually as just using Brexit as an excuse for more “agitation”. I admit to being born a Northern Ireland catholic, and thus risk potentially being pigeon-holed here, but when I wrote that, I was one of those “under the rocks” greens who would not have voted for a UI or even considered it realistic in my lifetime, as it just seemed to represent more trouble than it was worth. After all, with both UK and ROI being in the EU, did nationalist identity and belonging really matter so much?

    Not only has an England-led Brexit happened, but it’s going to be a “hard Brexit” by the UK government, the most potentially damaging for the island of Ireland as a whole. Sure, people talk of it being neither the UK’s nor the EU’s objective to have a new border put up, but on the UK side, they are also pretty keen to stress that the only way to fully ensure that (NI getting this oft-ridiculed “special status” by remaining in the customs zone and single market and putting customs controls at the sea ports only) is not going to be an option. So that doesn’t reassure me at all, and I’ve read plenty about how other promised options of a friction less and seamless border are completely unrealistic in practice, no matter what either side are currently hoping for.

    That is just one side of it: even if we get some special status, the thought that NI is going to be stuck in an increasingly nationalistic and right-wing UK, governed by our historic enemies the Tories for the foreseeable future, with a more pronounced form of British nationalism than ever before, and with the South going in a completely different social, political and economic path to what we currently have together under the EU, is a real worry. Where is our role and place in a “red-white and blue” post-Brexit UK? What happens to the “Irish dimension now”?

    I have evaluated all of this and my position has changed completely. I am no republican, but I am an Irish man, or at least a Northern Irishman, and can see no reason for me to want NI to belong to a UK that couldn’t care less about it and which is promising to be so detrimental to it. Even publically considering repealing the HR Act and withdrawing from the ECHR should set alarm bells ringing about how much we figure in the thoughts of even the most senior figures in the UK government, including its PM.

    For me, I look forward to the debates now. I think there is no better time than now to start discussing it at least, and I would hope some unionists would come to the same conclusion if they could see it in a more objective light.

  • ted hagan

    Spot on;

  • Fear Éireannach

    The government could require such rapists to live in a different part of the UK or detain them.

  • Brian Walker

    I can’t give you much comfort other than to hope for a Brexit best of a bad job- not inconceivable as Bertie believes; and my own belief that for our time, moves towards UI would be from the frying pan into the fire.

    The day will be saved if only we can get the tribal shamans to pull together a bit better, once the Brexit excitement dies down as it surely will. Nothing except death and taxes is forever. In the meantime we are inured to a stop- start devolution which will need continual supervision.

    We can reasonably hope for Brexit mitigation which wil require close north- south planning and cooperation for the first time and even closer British -Irish. We are too closely linked to take off in completely separate directions. The US and Canada pull it off with admittedly quite a few tensions but still pretty close. And Ireland is no longer quite as dependent on Uk as Canada is on US.

  • Brian Walker

    English only is a theoretical fallback in senior minds, I assure you . But probably a British Bill will remain a ghost..And don’t assume all complaints about early releases or bail would disappear even if they brought in martial law.

  • Barneyt

    Great piece

  • Riocard Ó Tiarnaigh

    Unless I’ve misunderstood entirely, the relevance of the European Convention of Human Rights to the GFA has to do with the RoI and the UK being both member states not of the EU but of the Council of Europe, which includes for example Russia. Hard or soft Brexit doesn’t come into it, as far as I can see. Does Theresa May’s government intend on taking the UK out of the Council of Europe and London withdrawing from the European Convention of Human Rights? Thus far I have neither heard this question being asked, never mind answered……

  • Brian Walker

    Withdrawal from the Convention an option as in Nick Timothy link

  • Reader

    John Spence: It’s crazy that a foreign rapist can walk up to his victim in the
    street, as happened this year, and the government cannot have him
    removed, because of a ruling by a foreign court.

    It’s no better if a citizen rapist can do the same thing. The laws either cover this behaviour or they don’t. Being able to remove foreign criminals easily would be convenient, but for the majority of victims it would make no difference at all.

  • John Spence

    So you don’t see the difference between having our own criminals here which we can do nothing about, and importing foreign criminals on top of that. Clearly rather than making no difference, there will be fewer criminals, terrorists etc here if we deport foreigners post sentence. Of course for many victims it would make no difference but for some – 1,or 2 or 10 it would. That is undeniable, unless you believe that the rights of a victim are less important than those of a criminal.

  • John Spence

    Deportation is the answer, not dumping on an unsuspecting community

  • John Spence

    I assume no such thing, but it’s about justice for victims and the safety of the innocent. These shouldn’t be sacrificed because of a warped interpretation by foreign judges, of rights designed to protect those fleeing persecution, not to protect those who commit violent crimes in the states which gave them sanctuary.

  • Korhomme

    How many foreign rapists are there; how many are home grown?

  • Steptoe

    You say justice
    For victims
    And safety for the innocent.
    I say that’s absolutely correct but what of
    Justice for the innocent? It is well established that the European Convention on Human Rights and Fundamental Freedoms
    Has done so much for those innocent victims. It has provided a vehicle to access justice. The agreement for keeping the convention should be really simple if you can convince people to reconsider these ideals:
    ~ it’s a convention for criminals
    ~ all criminals are foreigners
    ~ all foreigners are bad

    Until the mindset is changed, nothing will change. Mind you it’s like trying to have a conversation with your 11 year old around the fictitiousness of Santa Clause, something that should be so easy on paper but is a heart wrenching exercise of nonsense.

    To readjust perceptions, taking away from the tabloid style demonisation of the convention I urge you to follow the link to this myth buster

    And if you are still in doubt, take a look at this

  • aquifer

    Yep, great. Is it rude to ask for the NI specific rights the GFA promised?

  • John Collins

    I just wish that Bertie Aherne would do what every other former Taoseach did in the past and gracefully exit stage left once his term in the office is over. Anyway it is not as if he was the greatest occupant ever of that post.

  • John Spence

    I don’t disagree with some of what you say. However that doesn’t mean that Judges are applying the convention in a just way.

    You didn’t address my basic point. Should a foreign criminal convicted of a violent offence be allowed to remain in the country post sentence? It isn’t demonising asylum seekers to ask that, it’s recognising that violent criminals often reoffend.

    The rights of victims and the innocent should have at least equal value as those of violent criminals, but past Court decisions mean they don’t, and UK Courts are required to follow flawed precedents.

    It becomes half witted when you start saying “all foreigners are bad” as if all foreigners and not just violent criminals were being discussed. Its totally unjust, almost warped, to group decent law abiding citizens either native or foreign born, with violent criminals.

  • benny black

    its enjoyable to watch from the other side of the planet.
    does seem that no one was ready for this result, surely in this day and age if you call a referendum you should have a plan for both results ….
    obviously the present conservative government didnt have their eyes on the ball, and a new election is required for a fresh mandate to stay or go from europe.

  • benny black

    why always rely on government ?

  • benny black

    xenophobia perhaps ?…

  • benny black

    does it matter…

  • Reader

    Noel Whelan: 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.

    I disagree. By magnificent good fortune, the terms are so woolly that not even the words need to change.

  • Abucs

    Brexit will test the real commitment of the EU to the GFA. In principle and pragmatism they should look to honour it as much as is humanly possible. I would hope they show both qualities otherwise they will look very shallow, duplicitous and uncaring.

  • John Spence

    Yeah that’s right, let’s send an invite to all violent criminals worldwide that we have a place for them, and a message to victims here that we value criminals ahead of them. Wise up Benny

  • Gavin Crowley

    Dump them in an unsuspecting community in their home country. How is that the answer, unless foreign victims don’t matter as much as your own victims.

  • Skibo

    The issue, as far as I see it is the removal of the ECJ and any reform of the ECHR moves the final decision from European courts back to the High Court and the Lords in Britain. How can a person hold a government accountable when that government can exert political pressure on both to sway a decision.
    The EU gives an impartiality.

  • Skibo

    Brian at some stage we have to look past the initial effect of reunification and to the benefits that it will bring and see if we would be in a better position in ten years. Most businesses have to do a long range forecast in order to be able to invest in the future. We seem to be on the same old mundane treadmill full of the belief that whatever comes, the Treasury will sort us out.
    British mitigation can result in two strategies.
    1) we reduce our wage levels and try to compete with developing countries in manufacturing and increase our manufacturing industry.
    2) We continue the strategy that the UK used while in the EU and continue to develop the services and banking areas of the economy and make sure the welfare side of the community is provided for by the high earning, high tax paying personnel.
    Either way we in the North are screwed.

  • Skibo

    John, we exported one of our paedophiles to Canada. He came back and pleaded guilty. We let him go back to Canada, went and questioned him there in the presence of the Mounties and still he was not prosecuted and Canada didn’t throw him out.

  • John Spence

    Does it matter? Do you want other serious criminals to have an automatic right to be here, or should we be able to deny them? If they come and are caught in a violent crime, should they be able to remain whatever they have done, whatever risk they pose?

    We cant do anything about domestic criminals, once their sentence is served, we can send foreign criminals back to their country of origin.

  • John Spence

    Because it’s government’s job to protect its citizens

  • Korhomme

    If you have served a sentence of imprisonment, well you’ve served your time, and supposedly been rehabilitated when in prison, and to have learned that ‘crime doesn’t pay’.

    If people think that a rapist, or any other criminal, deserves further punishment beyond what they already have received, then reasons for this should be made explicit.

    If foreign rapists can be deported, is this further punishment? Is it equal and fair treatment/punishment to that which domestic criminals receive?

    And for British or Irish criminals abroad, can and should they be deported back here?

  • benny black

    not in most western countries ,they work strictly for industry nowadays

  • benny black

    most rapists in ireland are part of the catholic church and their victims have been children over the last few centuries.

  • benny black

    whats wise about being ignorant and xenophobic ?

  • John Spence

    You clearly have little knowledge of these issues. It is the norm for foreigners who commit a serious offence to be deported post sentence. This applies equally to U.K./Irish citizens in foreign countries. For example if an American living in the U.K. is sentenced for a serious violent offence, he will routinely be deported post sentence.

    This is not additional punishment, people who seek to live here with our consent, do not then have the right to involve themselves in serious crime, and if they do they lose the right to be here. This is a nation protecting its citizens from an unnecessary additional threat.

    The issue here is that because of European precedents UK Judges are often prevented from deporting criminals who claim a right to a family life or say they may be persecuted in their home country, this can happen irrespective of the truthfulness of the criminal’s claim.