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Union Jack, from Flickr, creative comms, Dave King

This article is written by Caoilfhionn Gallagher and Katie O’Byrne who are barristers at Doughty Street Chambers who specialise in human rights law. They have written a report with Dr. Keina Yoshida, Doughty Street Chambers, and KRW Law, Belfast on the implications for Northern Ireland of the proposals to repeal the Human Rights Act 1998. This independent report was commissioned by the European United Left/ Nordic Green Left (GUE/ NGL) Group of the European Parliament and it was published yesterday at a launch in Belfast

Northern Ireland is often overlooked when Westminster politicians are devising policy which will affect the UK as a whole. This is not just a blind spot for politicians, though: major riots in Belfast in late 2012 and early 2013 which lasted for months and resulted in hundreds of injuries didn’t make the front pages of UK newspapers (in contrast to the wall-to-wall coverage of the London riots in 2011).

And for the Olympics, the ‘TEAM GB’ branding must have been through multiple layers of decision-making without anyone spotting that, in fact, it should have been ‘TEAM UK’ (the United Kingdom of Great Britain and Northern Ireland). This all goes to show how right Sir Stephen Sedley was when he pointed out that the UK is a country which has always demonstrated ‘what a confidence trick the term “nation state” is… A state we certainly are – a very successful unitary state in many ways, though one that has spent the whole of this century grappling with the problem of a neighbouring country, Ireland, which it annexed six centuries ago and which it can neither wholly govern nor wholly let go. A nation we are not. We are Welsh, Scottish, English, Northern Irish…’

But there are two current debates, largely playing out in Westminster, in which the implications for Northern Ireland, and the wider ramifications for the UK of the Northern Irish aspects, should be front and centre: the Brexit referendum, and the Conservative Government’s manifesto pledge to ‘scrap’ the Human Rights Act.

Brexit and Human Rights
Those who conflate the European Court of Justice in Brussels with the European Court of Human Rights in Strasbourg are wrong to do so, but human rights are relevant to the Brexit debate. Respect for fundamental rights as guaranteed by the European Convention on Human Rights is an explicit obligation for Member States under the EU Treaty, and rights secured by the Convention are guaranteed by the EU’s Charter of Fundamental Rights.

The Irish Taoiseach, Enda Kenny, and the Irish Minister for Foreign Affairs, Charlie Flanagan are among those voicing serious concerns about the implications of Brexit for Northern Ireland. The Taoiseach has said that the Irish Government’s strong view, backed by independent economic research, is that Northern Ireland would be the most adversely affected region of the UK in the event of a Brexit, and that the EU has been ‘an important, perhaps underestimated, enabler of peace in Northern Ireland… . All-island economic cooperation is so much easier between two members of the European Union… . Common membership of the EU project is part of the glue holding that transition process together.’ It is perhaps surprising to hear the Irish government speaking out for the interests of those in Northern Ireland when Westminster is conspicuously silent.

Others have argued that Brexit would destabilise the peace process in fundamental ways, because of two practical issues which Westminster politicians are ignoring: passports and borders.

Anyone born on the island of Ireland before 2005 (and the vast majority of those born since then) is entitled to carry an Irish passport – meaning that many people living in Northern Ireland carry Irish passports. Should they continue to enjoy the benefits of EU membership, even if the UK has pulled out? And will there be a surge in Irish passport applications if Cameron loses out to Gove and Johnson and their pro-Brexit allies in July?

A key thrust of the pro-Brexit campaign has been about preventing unwanted outsiders entering the UK, and to focus on hard borders with physical barriers (customs posts, patrols, razor wire fences). But the problem is that the UK only shares one land border with another state, the Republic of Ireland. Cathal McCall has posed the question whether a post-Brexit Conservative government could entertain the continuation of an open Irish border. We have heard no answer to that important question yet. If the border were to be affected, this would wreak havoc with the devolution settlement and also destabilise the peace process.

The Human Rights Act and Northern Ireland
The picture is even bleaker when we consider proposals to scrap the Human Rights Act. There are numerous grave concerns about the ramifications for Northern Ireland but we highlight just three here.

First, a key question is whether repeal and replacement of the Human Rights Act would breach the Good Friday Agreement of 1998. It was the culmination of a long, delicate and painful process of negotiation and compromise across the political spectrum.  Protection of fundamental rights and freedom from discrimination are the lifeblood of the Agreement.  As well as guaranteeing the protection of human rights generally, the Agreement imposes a specific obligation on the UK government to ‘complete incorporation’ of the European Convention in Northern Ireland law, and to provide remedies before the courts for breaches. The Agreement remains the fulcrum of peace and stability in Northern Ireland today. The Human Rights Act is now critical to how Northern Ireland runs, including its policing structures, and is the mechanism used to hold the State to account for historic failures, including suspected collusion in many deaths at the hands of Loyalist paramilitaries.

The question of whether repeal of the Human Rights Act would breach the Good Friday Agreement is impossible to answer definitively without any clear model. There is still a deafening silence from Number 10 and the Ministry of Justice over what they in fact plan to do, and when.  However, the Conservatives’ current proposals would be highly likely to breach the Agreement.  It is difficult to see how their key aims to restrict the application of the Convention to what they refer to as ‘serious cases’ only and to treat Strasbourg judgments as merely advisory could be achieved consistently with the UK’s obligations in the Agreement. Also, the proposals are regressive, cutting back on established rights, whereas the Agreement envisaged that the Human Rights Act would be supplemented by even greater protections in Northern Ireland, which have never materialised.  To paraphrase Northern Ireland Human Rights Commissioner Les Allamby at the launch of our report on these issues yesterday, the Agreement contemplates ‘ECHR-plus’ but the Government’s proposals are “ECHR-minus”.

Even if the UK Government could manage to avoid technically breaching the Agreement, repeal of the Human Rights Act would risk undermining its spirit, leading to a loss of faith in its commitment to the peace process.

Secondly, human rights in UK are inextricably intertwined with the devolution settlements in Northern Ireland, Wales and Scotland. Under the Sewel Convention, the Government would require the consent of the devolved legislatures before altering or replacing the Act. Meaningful engagement with the devolved administrations about the proposals is plainly critical, but this does not appear to be on the Government’s agenda.

The third major concern is at the international level.  The Good Friday Agreement is part of an international treaty between the UK and the Republic of Ireland. Ireland, as part of its implementation of the Agreement and treaty, changed its Constitution to remove historic claims to jurisdiction over Northern Ireland and to incorporate the Convention into its law. This formed part of a reciprocal agreement to match human rights provisions in the UK and to ensure equivalent protection of human rights across the South and North of Ireland.

Any possible breaches of the Agreement, creating a mismatch in human rights standards, would be likely to constitute violations of the UK’s international legal obligations.  There is also a strong argument that incorporation of the Convention in Northern Ireland is an essential provision of the treaty, and if the UKwere to detract from that commitment, it could be in material breach of international law.

Given the history of political discrimination and mistrust in Northern Ireland, binding human rights obligations have been crucial in building and bolstering public confidence in Northern Ireland post-Troubles. But as Kate Allen of Amnesty International UK, has warned: ‘Public confidence can be eroded and undermined just as surely as it can be built.’ This is not just an issue to concern those who live in Northern Ireland, whichever passports they hold. It should concern us all. The same 2015 manifesto which pledged to scrap the Human Rights Act set out the Conservative Party’s ‘strong support for the political institutions established over the past two decades as a result of the various agreements’ in and concerning Northern Ireland. If the Government is serious about this pledge, it must now pay attention to Northern Ireland.
This article is written by Caoilfhionn Gallagher and Katie O’Byrne who are barristers at Doughty Street Chambers who specialise in human rights law. They have written a report with Dr. Keina Yoshida, Doughty Street Chambers, and KRW Law, Belfast on the implications for Northern Ireland of the proposals to repeal the Human Rights Act 1998. This independent report was commissioned by the European United Left/ Nordic Green Left (GUE/ NGL) Group of the European Parliament and it was published yesterday at a launch in Belfast