Dominic Grieve QC MP has warned that Brexit risks undermining peace and human rights in Northern Ireland, and he fears a hard border with the rest of Ireland is inevitable if the UK’s exit from the EU is implemented in the manner currently proposed.
The former Attorney General also warned that a reopening of the debate about Northern Ireland’s future constitutional position as a result of Brexit risked further community division and even a revival of violence.
Grieve was delivering the Amnesty International annual lecture at the University of Ulster in Belfast last night, as the final event in the Belfast International Arts Festival.
The full text of his lecture is available below, along with the video of the lecture and Q&A afterwards.
Amnesty International Annual Lecture – Human Rights: Brexit, the border and beyond
I am most grateful for the kind invitation that has been extended to me tonight to give this talk. I did wonder last month if it would be possible to get over at all as it became clear that the original date planned could not be kept. I apologise to those of you who had your diaries disrupted as a result.
It is also a great pleasure to come to Belfast to deliver this lecture for Amnesty International. Aside from my long-standing admiration for Amnesty’s work and desire to support it, it is part of my country that I cannot visit without emotion. I first came here in the early 1980’s, in the days when shopping in central Belfast required knocking on each of the doors of to gain admission and when the threat from violence was always an anxiety, even in the quiet of Strangford where I stayed with friends. The transformation that has taken place since I entered Parliament in 1997 has, despite the occasional setbacks to the peace process, been one of life’s most positive experiences. As it’s a subject in which I have long had an interest it has also enabled me over the course of my time in politics, to meet and exchange views with a wide range of people from every background-a continuing learning curve for which I shall always be grateful.
It was my late father, who was a Conservative and as he would have emphasised also a Unionist MP who taught me that Northern Ireland and British-Irish relations really mattered for the future wellbeing of all of us on these islands. He also gave me an understanding that the challenges of a complex shared history had to be faced with an understanding of differing views and a willingness to build for the present and have both humility and forgiveness for the past. He embodied it himself with a complex Irish ancestry from his mother. He was also a great believer in the United Kingdom’s engagement in the European Union and he ended his parliamentary career as Chairman of the Legal Affairs Committee of the Council of Europe, intimately concerned with the workings of the ECHR which he championed. As often happens with sons, I certainly didn’t set out to follow in his footsteps by way of areas of political interest and outlook. But I have to accept that as Brexit has loomed ever larger and removed almost all other subjects, I have appreciated that his influence on me has been much greater than I might previously have realised or admitted. As I have variously been described as a “rebel, traitor and perhaps more romantically a “bespectacled Che Guevara” I have drawn comfort from the knowledge that in his time my “treason” was part of his Conservative orthodoxy.
Since I was first approached to deliver the lecture, I have had some cause to worry about my choice of topic. There is nothing settled about Brexit on which to base some definitive commentary or opinion. Its final form and consequences are wholly unclear. For twenty-eight months now we have seen the development of an unparalleled political and constitutional crisis. It has precipitated the fall of one government and contributed to the failure of another to get any coherent mandate for carrying it out. It divides families, friends, generations and political parties. It is breaking apart the previous broad consensus between the mainstream political parties as to how the economy should continue to be managed. Here in Northern Ireland it has precipitated a revival of issues of identity and of the future of the border that had recently been dormant. Meanwhile like most political upheavals it is bringing economic uncertainty in its wake.
Most importantly, from my perspective as an MP, it is accompanied by a crisis of confidence in our political institutions. The public are showing an increasing dissatisfaction with the way our politics are being conducted. There have been serious disagreements as to the respective roles that Parliament and the executive should perform in managing and authorising the Brexit process and we have had vitriolic abuse heaped on members of the judiciary for ruling on part of this issue in the Miller case. It also threatens the unity of the United Kingdom because of divergent views in different parts as to how we should proceed.
I mention all these issues because they emphasise for me how the future of human rights after Brexit cannot be compartmentalised away from the extraordinary times in which we are living. Brexit constitutes a potentially profound change in our country’s relationship with both our own and the international legal order with consequences that may flow from this both domestically and internationally.
In voting to leave the EU, the majority, in its repeated mantra of “taking back control”, was making some form of demand of the government for a change in direction for the United Kingdom in respect of our country’s participation in building supra national legal frameworks. The referendum was also a demand concerning what is expected of our unwritten constitution, which has become heavily entwined with the supra national frameworks the UK has helped to build over the decades. It is because Brexit has the capacity to affect so many aspects of our national life that I thought it might be worthwhile discussing this topic. But I would want to emphasise that this is a politician’s view of rapidly evolving issues, not an academic’s analysis.
It is a feature of our current debate on the future direction our country should take that it fits in with an essentially English narrative on identity. This can be traced back to Magna Carta, Habeas Corpus and the Bill of Rights of 1689. It contains much that emphasises the exceptionalism of an English tradition, as we first see celebrated by Chief Justice Fortescue in his “de Laudibus Legum Angliae” written in 1453 . There the use of torture is deprecated and trial by jury and due process praised and with it its uniqueness to England. There is even an excellent section in it which, I suggested in parliamentary debate, might be relevant to who had the power to trigger Article 50. “The King of England” he said, “cannot alter nor change the laws of his realm at his pleasure”. A statute requires the consent of the whole realm through Parliament.
This national narrative has proved and is still proving very important. Because England is the preponderant constituent part of the United Kingdom it can act as an effective restraint on British governments trying to curb freedoms when tempted to do so by threats to public order or national security, as we saw over 90 and 42-day pre-charge detention just a decade ago.
But this comforting political tradition is not necessarily supported by a detailed study of our history. It is possible to find periods and instances where its norms have not been observed from here in Northern Ireland to Kenya. It has also been used to support opinions that are less helpful to the Rule of Law as Lord Bingham defined it in his eight principles which he expounded in his 2006 lecture and his book on the same subject in 2010.
The journalist and historian Paul Johnson identified these contradictory underlying attitudes with perspicacity when he wrote in his History of the English Speaking People:
“the extraordinary attachment of the English to their system of law (if indeed you can call it a system), the positive affection it inspires, the awe inspiring confidence, often unwarranted, which they repose in its ability to do justice, the tenacity, indeed ferocity with which they refuse to modify it with foreign importations is one of the most important national characteristics.”
The last 70 years of legal development in our country certainly seem to bear out Johnson’s view. For over more recent British history, but particularly since the end of the Second World War, we have embarked on policies that have developed and changed our laws, not just through domestic mechanisms but also through international engagement. Notwithstanding our pride in our national sovereignty, successive British governments in the last two centuries have sought to make the World a better, safer and more predictable place by encouraging the creation of international agreements governing the behaviour of states. When I was Attorney General, I once asked the Foreign Office to tell me as to how many we were signed up. They were reluctant to go back beyond 1834 but since then they said they had records of over 13,200 that the UK had signed up to and ratified and the figure has now grown to nearly 14000. Many thousands are still applicable and range in importance from the UN Charter to local treaties over fishing rights. Over 700 contain references to binding dispute settlement in the event of disagreements over interpretation. And with the passing years these treaties, be they the UN Convention on the Prohibition of Torture or the creation of the International Criminal Court have dealt not just with inter-state relations , but state conduct towards those subject to its power. So important has been this treaty making that the Ministerial Code, until 2015, referred specifically to the duty of civil servants and ministers to respect our international legal obligations at all times. This was then deleted by the then PM David Cameron, probably in reaction to being reminded of this point too often. But the deletion could only be cosmetic in its effect. The Cabinet Office had to admit it made no difference to the obligation. It is part of Lord Bingham’s eighth principle of the Rule of Law. If it were abandoned, we would be sanctioning anarchy on the international stage. In fairness, successive UK governments have, despite some lapses been pretty consistent in observing its principles. We are after all in the midst of commemorations of the First World War, which we entered explicitly to honour our international treaty obligations to guarantee Belgian neutrality-what a then German Chancellor was happy to describe as a “scrap of paper”. Around 210,000 Irishmen served in the Forces during that war, and some 35,000 lost their lives.
But that has not prevented us agonising and complaining over the impact of international law particularly in areas where it places constraints on the United Kingdom’s right to legislate at will on domestic matters.
I don’t want to get diverted this evening by the history of our adherence to the European Convention on Human Rights and its incorporation into our law through the Human Rights Act, however much it may have had influence on my political career. But I do put it forward as an example of an international treaty that has brought in its wake intense disagreements as to its value.
Any reasoned examination tells one that its impact has been profound and beneficial, perhaps especially in Northern Ireland. The Convention provide the underpinning for the Belfast/Good Friday agreement, the 20th anniversary of which we celebrate this year. The Agreement provided for the incorporation of the Convention into Northern Ireland law, including the power of the courts to overrule Assembly legislation on the grounds of inconsistency. The Agreement was then implemented into UK law through the Northern Ireland Act 1998, which forms part of our constitution and provides for Devolution in Northern Ireland. Thus, the laws and constitution of the UK have received the benefit of the influence of the ECHR, an international treaty and the Belfast/Good Friday Agreement which includes an international agreement between the British and Irish governments.
More generally it has produced a number of landmark decisions which have challenged and halted practices which were once considered acceptable in Western democracies, but which would now be seen as wholly unacceptable by the overwhelming majority of the British public. Despite difficulties over the enforcement of some of its judgments, particularly in countries where the Rule of Law has previously been no- existent, the Strasbourg Court can show that it has been instrumental in bringing about positive changes of attitude by public authorities with a long track record of serial human rights violations. And since the Brighton Declaration of 2012 negotiated by Ken Clarke and myself, it has improved its processes, reduced its backlog of pending cases and unimplemented judgments and engaged in a constructive dialogue with our own senior courts that is influencing its jurisprudence. On any showing our support for the Convention and the Court has been a major achievement of United Kingdom soft power on the international stage.
Yet for all this, some members of my Party which supported its creation and the later right of personal petition are still calling for a review, with the possibility of replacing the HRA with a Bill of Rights that might call into question our future adherence to the Convention. I am reasonably optimistic that this will not in fact happen, particularly as no Government leaving the EU would also wish to see us lose further influence by being obliged to leave the Council of Europe. But it is symptomatic of the discomfort a supra national court causes and the continuing dislike by some of the effect of the Human Rights Act. I still have colleagues talking of it as unfinished business. It is noteworthy that other mainstream parties have at times been less than forthright in upholding the obligations the Convention imposes on us when it might need them to confront adverse public and media comment. Labour’s long silence over resolving the issue of votes for some convicted prisoners arising out of the Hirst judgment was telling. Fortunately, that issue has now been resolved.
WHAT HAS THE EU DONE FOR HUMAN RIGHTS?
It is with these thoughts in mind that I turn to the impact that the EU has had on human rights law.
It is clear that, in the way it has developed, EU law has influenced rights. The legal order under the EU Treaties is of the greatest importance, since it provides the mechanism to ensure that the carefully agreed and coherent rules system governing the inter-action of nation states and European bodies are respected. As the product of an international treaty, the EU can only be effective and be seen to be legitimate if its own operations are considered to respect the letter and spirit of the Treaties that created it. Furthermore, the ambitious nature of the project has produced a requirement not only for there to be the supremacy of EU law over the national law of its member states in areas of EU competence, but also the creation of parts of that law by its central bodies without the need for any domestically generated primary or secondary legislation at all. It is obvious that such a source of law could operate abusively whatever the good intentions of its creators might be. They clearly wished that EU law should further principles of democracy and the rule of law and values found in the constitutional traditions common to the Member states, including the principles reflected in the European Convention on Human Rights and other international treaties on social and economic rights to which all members are signatories, as set out in the preamble of the Charter of Fundamental Rights. But those general principles therefore need protecting. That is why they are now in a text in the Charter, which also covers the key obligations of member states in respect of the foundational “Four freedoms” conferred on EU citizens in the Treaties.
It seems to me therefore to be rather ironic that the Charter should have been on the receiving end of so much vilification in the United Kingdom. I can see that criticism can be made of its use to claim rights that might be considered to fall outside the scope of the Treaties. I experienced this as Attorney General when I appeared in the Supreme Court for the Government in Chester and McGeoch in 2013 where an attempt was made to use the Charter to claim prisoner voting rights in EU elections. It is however noteworthy that this attempt failed. One can also see that the CJEU may be accused at times of applying the Charter and its principles in a manner which shows insufficient regard for the intention of the signatories-the case of Watson on data retention is such an example. But the critics of the Charter’s existence ignore the point that without it and the general principles of EU law it embodies, the risk would have been much greater of seeing EU law being created or applied that did not respect the limits of the Treaties or interfered with fundamental rights and left individuals and legal entities without any means of redress. But recognition of these benefits has been lost in the repeated denunciations of the Charter as an alien document intent on imposing a form of written constitution on us contrary to our principles of parliamentary sovereignty.
On a practical level however, the impact of general principles of EU law on our country appears rather different. It has been the principal driver in recent years in promoting the development of equality law and social rights. For example, it is due to EU law that there are rights to protection against pregnancy discrimination, to equal pay for work of equal value and to protection against discrimination at work on grounds of sexual orientation, religion and age. The Equality Act 2010 may be a piece of parliamentary legislation that would have been supported nationally in any event, but it owes its origins to changes brought about by EU law. It is noteworthy that despite some expressions of concern on the burden on business there has never been any serious resistance to these developments. But, of course, that Act does not apply to Northern Ireland. But the influence of many instruments of EU legislation can be seen in a series of pieces of legislation passed to implement EU equality protection in Northern Ireland including EU Directives on equal treatment in employment and equal opportunities for men and women in the workplace and in the supply of goods and services.
Another area of importance is privacy law. Article 8 protects personal data and in the David Davis and Tom Watson challenge to the Data Retention and Investigatory Powers Act 2014, the Court of Appeal agreed with the Divisional Court that Article 8 of the Charter was more specific than Article 8 of the ECHR. My own opinion that the final decision of the CJEU in this case is seriously deficient in its reasoning on the facts, does not diminish the importance of this right. In Google v Vidal Hall a Directive was interpreted in line with general principles of EU law, the ECHR and the Charter so as to require the payment of compensation for breaches of privacy, even when these breaches could not be shown to have given rise to pecuniary harm. As UK legislation implementing the Directive could not be interpreted in line with it, the provision restricting compensation to pecuniary loss was disapplied. Again, the overwhelming impression I have of public reaction to this outcome was that it was positive, once one excludes the self-serving response of sections of the media.
I have to accept, of course, that there are some of my colleagues in Parliament who take the view that, at most, the only Human Rights that should be protected are those in the ECHR and even then, some wish any rights protection to be purely domestic and not derived from or subject to any international treaty obligation capable of interpretation by an international court. The cross-party Commission on a Bill of Rights set up by the Coalition Government of 2010 highlighted a substantial philosophical difference on what constitutes “human rights’ that merit special protection. There may be an important jurisprudential distinction to be drawn between liberties and rights. As a Conservative I have always been cautious about the ability or desirability to widen the scope of fundamental rights and some economic and social rights place positive duties on the state that may in theory be important aspirations but are in practise hard to fulfil and involve a difficult and perhaps non-justiciable balance between competing policy areas. They ought in my view to remain in the realm of politics not law. But that said, it seems clear that there have grown up in the last half century areas of law particularly around equality and privacy that are not well covered by the ECHR and are seen as fundamental rights by an overwhelming section of the public. So much so indeed that the present Government has been at some pains to emphasise that in leaving the EU, it is not its intention to diminish any of these rights currently enjoyed by UK nationals through the acquis.
The problem however is that the EU Withdrawal Act 2018 removes the safeguards that EU law previously provided for these acquired rights. The Bill was supposed to be a process bill and to have little to do with the form Brexit should take, either as to the terms of withdrawal or our future relationship with the EU. It was supposed to convert and entrench EU law so as to ensure legal continuity, save in those areas, such as Agriculture, Immigration and Trade where primary legislation would be brought in before Exit Day to replace EU law. No one could reasonably suggest that it was not essential to get something of this sort onto the statute book.
But the Bill as drafted and passed betrays all the disordered thinking now evident in respect of legal principles seen as being of “foreign origin”. So, the Government was happy to retain EU law and keep its supremacy after exit day for those laws enacted prior to exit day or modified later. It was also content to create some of the most extensive powers to change primary legislation by statutory instrument. Some of this was inevitable in order to bring Brexit about within the time constraints the UK has set itself. But their draconian nature emphasises the incongruity between the claimed recovery of parliamentary sovereignty and the massive accrual of Executive discretion that results. We can also see this in the seven delegated powers in the Trade Bill to amend primary legislation and the five in the Agriculture Bill.
By contrasts, the safeguards that accompanied enacted EU law have been almost entirely abandoned, with the general principles of EU law and the Charter of Fundamental Rights reduced to no more than interpretative aids to “trained” EU law. This was done expressly on the grounds that to retain any free=standing effect would offend parliamentary sovereignty, even if our own Supreme Court interpreted it rather than the ECJ. Apart from the promise of a new Environment Act to preserve the EU’s environmental principles, the Withdrawal Act leaves large areas of rights law such as equality and privacy with no protection from diminution, even if the Government has insisted that it has no such intention. There were a few concessions made, such as the need to negotiate replacement arrangements or the reunification of child refugees with their families. But in broad terms a working structure of rights derived from international law and obligations linked to EU membership will be dismantled.
BREXIT AND THE RULE OF LAW
The EU has also been important for us in the field of legal cooperation. It has helped to develop and promote the Rule of Law for our own benefit and that of fellow member states. Our departure leaves a myriad of unresolved issues as to how that co-operation can be maintained.
It is noteworthy, in this context, that the Prime Minister has recognised the importance for us as well as for the EU, of continuing to participate in areas of justice and home affairs including the European Arrest Warrant and the Schengen Information System needed to support law enforcement co-operation across the EU. Then there are the agreements to manage Asylum applications contained in the Dublin Framework which have underpinned attempts at creating some order, in a complex and difficult field and enabled us to return a significant number of asylum seekers to other EU countries. Equally important are the civil law measures in relation to the enforcement of judgements which include matters as diverse as high value commercial litigation and contact arrangements for children. The recast Brussels Regulations have created rules to ensure uniformity and certainty for litigating parties including the mutual recognition of judgments and their enforceability in member states including the use of injunctions. They have been of the greatest benefit in making the UK an attractive place to litigates well as assisting litigants in cross border matters.
The Government has shown every intention of wanting to remain in these arrangements after Brexit and the possibility of doing this is reinforced by the fact that other non-EU states have been able to participate in some of them. It is arguably, very much in the interests of the EU that we should continue to do so. But it is inevitable that we are going to do this as associates or observers. Our ability to shape their continuing development is going to be much reduced, all in fields of co-operation where our well-established Rule of Law tradition means that we have hitherto been able to lead on them. We are going to be rule takers not makers. I see this as one of the most serious side effects of Brexit. As an example, we have rightly indicated our concern about how EU Data Sharing law has been developing. We have enacted primary legislation to give effect to the new General Data protection Regulation of the EU in our Data Protection Act. But once outside the EU our ability to contribute to further changes will be gone. Although we will still be required to observe those changes in all data exchanges with EU countries and ultimately it will be the CJEU (without a British judge) that will determine what is permissible and what is not.
And although the EU may be secondary to the role played by the Council of Europe in promoting human rights more generally on our continent, its role has been substantial. The EU Fundamental Rights Agency founded in 2007 works to promote human rights within the EU, so playing an important role in member states where democracy and the rule of law are still newly established. It has used UK NGOs and institutions to help it with its work. The Balance of Competences Review in 2014 carried out by the government described the Agency’s output as accurate and of good quality. But after Brexit we will no longer be able to play any formal role in its work. A useful element of UK soft power projection in promoting human rights will be lost. So will our ability to use our EU membership for the promotion of human rights and the Rule of law outside the EU. It is easy to overlook the EU’s role in doing this. But it has had considerable leverage. Council Regulation 1236/2005 banned the export of instruments of torture and is now extended to death penalty drugs. Negotiations of trade deals with third countries have included provisions requiring human rights issues to be addressed. Turkey’s abolition of its death penalty in 2004 was a requirement for the conclusion of its engagement with the EU in deepening relations with a view to eventual membership.
Just as the United Kingdom generally has benefitted from EU membership, so Northern Ireland too has benefitted, particularly from the shared EU membership of the United Kingdom and Ireland. This is hardly surprising. Long before both countries joined the EU, the importance to us of our bilateral relationship was shown by the fact that we did not treat Ireland as a foreign country-s.2(1) Ireland Act 1949. But this did not make relations easy. The dramatic change has come through over twenty years of developing successful joint working to bring an end to sectarian violence and terrorism in Northern Ireland and its neighbours and enable its residents to enjoy the benefits of peace, in an environment that can provide a setting in which both British and Irish identities can flourish even in one individual. In the process British/Irish relations have been transformed for the better. The Belfast/Good Friday Agreement is and should be therefore an international treaty of prime importance to us. And it is bound up with shared adherence to the ECHR and shared membership of the EU.
The Agreement may not require both countries to be in the EU, but it certainly presupposes it. One of its primary purposes has been to ensure that the Ireland/Northern Ireland border can be managed seamlessly and this is assisted by the VAT information system and the European Arrest Warrant of the EU. A shared regulatory framework is also important in enabling those who live close to the border to organise their lives without needing to have regard to it. With 30,000 people crossing the border each day for work and to access education or health and other services, it has a profound and beneficial effect on their quality of life. Any visitor to Northern Ireland can also see how the fact that cooperation has taken place against the more general background of the EU’s role in removing barriers to interstate cross border initiatives elsewhere, has helped detoxify the sense that any progress improving cross border co-operation must always be some zero-sum game.
At Westminster, the discussion on the border has been framed too much in terms of trade and economics. But it also affects people’s everyday lives in a manner that reflects different rights. Crossing the border easily for work touches on the right to work. Seeing relatives has implications for their right to a family life. The EU regulatory frameworks on medicines underpin the existence of an all island of Ireland health care system. The issue of the border is a human rights issue and should not just be understood in economic terms.
I have no doubt therefore of the Prime Minister’s sincerity in wanting to avoid the creation of a hard border. As a committed Unionist she is conscious of the risks that Brexit may bring to the peace process and she is well aware that twenty years of peace has not been translated into effective Devolution and power sharing. Nor has it altered sectarian separation as had been hoped. She also knows of the risk that Brexit is acting as a catalyst in reopening the issue of Northern Ireland’s future within the United Kingdom. This has always been a possibility under the Belfast/ Good Friday Agreement. But I have met no one who thinks that such a reopening would not at present be in conditions which give rise to the risk of further community division and of a revival of violence. No reasonable person can wish for such an outcome.
This was why the Prime Minister was willing to agree the Joint Declaration in Brussels last December and why we have seen a series of efforts to square the circle of allowing the UK to leave the Single Market and the Customs Union of the EU and yet preserve an open border with Ireland. As of the start of this week we have had rumours that yet another formula is being discussed.
The problem however is that these devices all involve an element of deception of some sections of the British electorate as to the long-term consequences of such a deal. It might be possible, if regulatory alignment and common tariffs with the EU are kept on by the UK when outside of a Customs Union, for a border to operate in the Irish Sea or on land between Northern Ireland and Ireland with little evidence of its presence. But as those in favour of Brexit repeatedly voice their support for tariff and regulatory divergence after departure as a prime reason for going, it is obvious that such a fudged solution cannot last. Brexit, in the form it is being promoted by its supporters and a hard border go together, whatever the intentions of the Government may have been in accepting the Lords amendment to the EU Withdrawal Act prohibiting the conclusion of any border agreement involving physical structures.
The very “English” approach to the growth of EU derived rights that we have seen in the passage of the EU Withdrawal Act also seems to me to sit uncomfortably in the Northern Ireland context. In a society where social and political equality between neighbours of different traditions has often been absent, it is unsurprising that EU derived rights may seem an attractive protection rather than unwarranted interference in national sovereignty.
For those of us who believe that good governance goes hand in hand with a society underpinned by the Rule of Law and respect for human rights, the present situation for Northern Ireland should therefore concern us. We only have to look at the extraordinary form taken by the Northern Ireland (Executive Formation and Exercise of Functions) Bill which has passed through Parliament by fast track legislation last week to see the challenge. Faced with eighteen months of failure to form an administration and in a desire to avoid direct rule, we have resorted to giving civil servants policy making powers that no functioning democracy would ever consider not being exercised by ministers accountable to a democratically elected Assembly, even if UK ministerial guidance as to their exercise has been provided. We have also created sweeping secondary law-making powers to get round the absence of properly functioning government.
Whilst being understanding of the UK Government’s dilemma, in enacting this legislation, it shows very starkly, when paired with the polarisations of opinion here since the Brexit referendum, how reduced is the ability of Northern Ireland to have representative governance at present. A growing crisis in legitimacy brought on by a paralysis of government both here and at Westminster for two distinct causes is being met by centralising powers in the hands of the executive with little accountability. In the long term this is dangerous for civil society and is not sustainable.
THE CHALLENGE FOR THE FUTURE
At the inevitable risk therefore, of being characterised as a “Remoaner”, I am afraid that the analysis I have tried to carry out of the consequences of Brexit on human rights law and the Rule of Law this evening does not make me enthusiastic for its alleged benefits. There may be some bright economic future for us somewhere outside the EU, but in terms of the development of our Law and of the maintenance of the Rule of law both here and abroad it is a revolutionary event, the creator not of some new order but of potential chaos which the convolutions and oddities of our negotiating stance only serves to emphasise. It is all profoundly un Conservative. For those ideological purists who are convinced that our laws will be improved by the removal of forty-five years of foreign and new-fangled accretions, I fear there will be disappointment. The ghosts of those accretions will be poltergeists lurking around to haunt us with random and unpleasant consequences for many years, and the substantial legal benefits that have come from them for the majority of citizens, risk being diminished or lost in uncertainty.
Nor do I think that this will be the end of the matter. The reality is that over the years of our EU membership we have inevitably acted at an EU level on matters which would otherwise have featured as part of a domestic national conversation in any event. It may be EU membership that has entrenched certain Equality, privacy and social rights in our country to the disgust of believers in untrammelled Parliamentary sovereignty. But might this not have happened anyway? It is true that in the Human Rights Act we proceeded with respect for our traditions in deciding on the mechanism of declarations of incompatibility rather than creating strike down powers. But the idea that in 2018 we should now relegate EU derived rights to a wholly unprotected status, flies in the face of evolutionary changes in human society.
It must at least be possible therefore that our departure from the EU and the loss of the entrenched protections it entails is going to lead to a debate on how we go forward. The proposal of a domestic Bill of Rights with protections additional to the Human Rights Act which could adequately cover Equality and privacy laws might help address this issue. Doubtless the debate will have at opposite poles, those resolutely opposed to any laws enjoying a special status and those for whom the Charter of Fundamental Rights was the first step to an overarching architecture of entrenchment of fundamental rights and judicial supremacy in their application. As a Conservative this latter view is certainly not mine, but I am concerned that some of my colleagues have not even noticed the existence of this lobby or the extent to which such rights have become accepted by the general public as of great importance even if the public have had no reason to consider their origin or how they are secured.
A particular challenge that is clear from the issues I have touched on, is how the Irish Government and the UK Government continue to negotiate and establish shared frameworks, including legal frameworks, to facilitate and uphold rights standards and opportunities for people in Northern Ireland. Dialogue, good faith, mutual respect and mutual understanding are essential to achieving the goal of continuing co-operation for the benefit of all people on our islands.
As Brexit proceeds this debate will not be confined to Westminster. The return of powers from the devolved administrations to Whitehall and Westminster provided for in the EU Withdrawal Act is a source of political controversy. Equal opportunities (except in Northern Ireland) and data protection have always been reserved matters but there is no doubt that the Scottish Government and the Welsh Assembly Government have shown no hostility to rights entrenched by EU membership. Indeed, one view of the devolution settlements of Wales and Scotland is that human rights are a devolved matter and Wales has incorporated the UN Convention on the Rights of the Child into its domestic law through the Rights of Children and Young Persons (Wales) measure 2011. The Bill of Rights for Northern Ireland of course remains in limbo. All these issues are likely to have a bearing on any debate on EU derived rights and the removal of protection from them as we leave. I would not wish to speculate as to where it will all end up.
“Taking back control’ is a powerful idea in conditions where the decline in general confidence in institutions both national and supra national has become such a marked phenomenon. But in an increasingly interdependent World what constitutes the benefit of exclusive control becomes harder and harder to identify. The risk is that it is largely a mirage that leaves individuals in practice fewer opportunities to enjoy a good quality of life or obtain redress for administrative failings. It is also a uniquely disruptive form of change that precipitates the very reverse of “quiet government”, which we have long been enjoined to pray for and which the United Kingdom for all its shortcomings has traditionally aspired to deliver to its citizens. Those of us who believe that a lively, free and therefore successful democratic society thrives on checks and balances must now work to protect and preserve a legacy of international and intra-national co-operation and engagement that has done all of us in this country very little harm and undoubtedly a great deal of good.