It now seems inevitable that, unless there is an unlikely backbench revolt within the Conservative Party, the Human Rights Act 1998 will be replaced by a new Act. According to the Conservatives’ election manifesto the new Act will ‘remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights’, but it will ‘break the formal link between British courts and the European Court of Human Rights,…make our own Supreme Court the ultimate arbiter of human rights matters in the UK … [and] reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society’.
Unlike in its October 2014 document, Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws, the Conservative Party no longer seems intent on limiting the use of human rights laws to the most serious cases and it has not repeated its proposal to withdraw from the ECHR if it is unable to reach agreement with the Council of Europe that the new Act represents a legitimate way of applying the Convention.
Surprisingly, neither Conservative document refers to rights that could be added to the new Act to give it a more ‘British’ flavour. On earlier occasions there have been calls for the right to jury trial to be included in any new Act: Kenneth Clarke MP and Martin Howe QC have been prominent advocates for that position. In the Joseph Rowntree Reform Trust’s State of the Nations Poll, now 20 years old, 82 percent of respondents favoured the inclusion of the right to jury trial in a Bill of Rights. An even higher proportion (88%) were in favour of including a right to hospital treatment on the NHS within a reasonable time.
As many readers will know, in Northern Ireland there has been a separate debate about a Bill of Rights. In 1998 the Belfast (Good Friday) Agreement did not quite promise that a Bill of Rights would be enacted but it did say that the Northern Ireland Human Rights Commission should, after consultations, advise the Secretary of State for Northern Ireland ‘on the scope for defining, in Westminster legislation, rights supplementary to those in the ECHR, to reflect the particular circumstances of Northern Ireland’. These additional rights would ‘reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem’.
The NIHRC began its consultation process on what rights should be included in a Bill of Rights in 2000 but almost nine years were to elapse before its final advice was submitted to the Secretary of State. Being as objective as I can, given that as Chief Commissioner I was centrally involved in the NIHRC’s consultation process until 2005, the nature and extent of the final advice goes significantly beyond what any neutral observer would have interpreted the Good Friday Agreement as requiring in 1998. In terms of length alone, the proposed new rights are double the size of the Convention rights set out in the Human Rights Act. As well as containing too much detail they omit altogether some crucial rights, such as the right to integrated education and the right to same-sex marriage.
In 2009 the then Labour government was quick to dismiss the NIHRC’s advice and to consult on its much more modest proposals. In 2010 the new coalition government published responses to this consultation but did not take any initiative thereafter, doubtless due to the lack of any cross-community political consensus on the matter within Northern Ireland itself. But Labour had already called for a new UK Bill of Rights and Duties in 2007 (see The Governance of Britain, Cm 7170) and a year later Parliament’s Joint Committee on Human Rights went down a similar path, though expressing its strong opposition to the inclusion of duties or responsibilities (an aspect of the debate which I am not addressing in this post). In the otherwise inconclusive report of the UK Commission on a Bill of Rights, published in 2012, there was at least a strong majority view that some kind of UK Bill of Rights was feasible and desirable. While I understand the worries expressed by Helena Kennedy and Philippe Sands, their dissent was based on the hope the Human Rights Act 1998 would survive.
Within Northern Ireland there continues to be a strong lobby for a local Bill of Rights, but unfortunately most of the organisations involved have been reluctant to engage in efforts to seek anything less than the full-blown product suggested by the NIHRC. Nevertheless there is still much to commend in the NIHRC’s advice and it is surely not outlandish to begin arguing to the parties at Westminster that if there is to be a new Bill of Rights for the UK it ought to contain sections dealing specifically with Northern Ireland. These would be in addition to the sections which will presumably need to be kept in place to restrict the UK’s three devolved legislatures and governments from enacting laws or taking other actions which violate the ECHR.
Additional rights for Northern Ireland which in my view are immediately worthy of inclusion in a new Bill of Rights enacted at Westminster are the following. Some have been lifted from the NIHRC’s advice, others are plugging gaps created by the enactment of the Equality Act 2010 for Great Britain, while yet others reflect the need to bypass the Northern Ireland Assembly, where reaching consensus on basic rights so often proves impossible.
- the right to effective and independent investigations of all violations of the right to life relating to the conflict in Northern Ireland
- the right of the victims of all crimes of violence to appropriate material, medical, psychological and social assistance
- the right to trial by jury for serious offences
- the right to same-sex marriage
- the right to express a community’s identity and ethos through parades, subject to limitations consistent with the ECHR
- the right not to be discriminated against on the basis of one’s status as a carer or on the basis of an irrelevant criminal conviction
- the right to have all elections determined by a voting system aimed at achieving proportional representation
- the right to free education up to the age of 16
- the right to have a belief in the value of integrated education treated as a philosophical conviction for the purposes of the ECHR
- a right not to be treated as a member of either main community if one no longer professes the religious faith and political aspirations of that community
- the right of everyone belonging to a linguistic minority to learn or be educated through their minority language where there is sufficient demand for this
- the right to appropriate health and social care free at the point of use and within a reasonable time.
There will be those who are opposed to taking this opportunity to include rights for people in Northern Ireland within a UK Act, but the fact remains that if the Human Rights Act is repealed the deleterious consequences will be greater in Northern Ireland than elsewhere unless new provisions are created. In the list above there is something for all shades of political opinion in Northern Ireland, and nothing that should be seen as a threat. It is a succinct and progressive agenda for change.
Failing to take this opportunity to try to enhance the protection of human rights in Northern Ireland should not be ignored. Doing so will simply condemn those of us who want to see a Bill of Rights for Northern Ireland to a position of whistling in the wind for at least five more years. If rights deserve to be protected they deserved to be protected now, by whatever legislative vehicle that happens to come along.
Brice Dickson, Queen’s University Belfast; firstname.lastname@example.org