…according to Baroness Kennedy during yesterday’s session of The EU Justice Sub Committee Inquiry on the Potential Repeal of the Human Rights Act on EU Law.
The Committee heard evidence from Rt Hon Michael Gove MP, Lord Chancellor and Secretary of State for Justice in relation to the proposed consultation on a British Bill of Rights. From the get go it was clear that the Committee has been as confused about the “actual purpose and nature of the reforms being sought in relation to the European Court of Human Rights and what it is that the government finds unsatisfactory about its manifestation through the Human Rights Act”, as the rest of us.
So, here are some of the things we now know.
Any consultation document will be one that is very far removed from swaggering threats of scrapping or repealing of the Human Rights Act. Instead, based on yesterday’s evidence at least, the British Bill of Rights consultation document will be one that proposes including all of the existing protections, but with particular focus on two areas of concern.
The first issue, according to Gove, is whether reform of the Human Rights Act could clear up some of the concern “with regard to British troops operating abroad and the widespread debate about whether or not the way in which room for troops to operate effectively in a conflict zone has been constrained by a variety of laws and treaties, in order to ensure our soldiers are standing on solid legal grounds, but subject to appropriate legal sanctions.” There was no expansion on what this really means or what any provision might look like within a reformulated British Bill of Rights. We do however know that there have been a number of cases where the Human Rights Act has been critical to providing remedies in relation to unsatisfactory investigations into the deaths of British troops in the UK see here and here.
The second of Gove’s and the governments issues is in relation to balancing rights more in favour of British values, and “firming up and making clearer regarding freedom of expression” which “might ensure some erosions of freedom of speech could be fought back” and that this will be put forward in the consultation document.
We now also know the UK government was not planning on derogating from any rights already in the Human Rights Act. Additionally, we know that it is not the UK government’s “intention to say that any individual right within the Convention no longer applies within the UK”, but that they are “going to consult on how those rights can be interpreted and weigh one against the other”. Therefore, it would seem that the consultation document is to be the start of any discussion and consultation on prioritization of rights, a matter of concern for the Committee.
The Committee also asked that if the UK Government is in fact just looking at keeping what rights we have with one or two points and issues around troops and freedom of expression whether this could not just be done through the Courts? However, it seems there is a deeply held opinion by Gove and others that this consultation process is necessary to establish how the government “can make changes which ensure that people recognize these rights spurring from our traditions…and that these rights can be given effect to in the courts in a better way, in a more British way”. Yet there is no real explanation as to what this ‘more British way’ would look like.
So where does that leave this consultation in relation to devolution?
In fact, in a jurisdiction with a peace agreement that provides for self-identification with regards to British or Irish nationality, which involved constitutional change in another State (the Irish Republic) in order to give effect to that agreement, this may not resonate in Northern Ireland the same way as it does in England. The Committee noted evidence they had already received in previous inquiry sessions with regard to devolution concerns were “quite surprising and quite striking”, in particular with regards to devolution concerns in Scotland.
Asking to clarify whether the human rights legislation was reserved or devolved, Gove said it is “neither”. And failed to answer the direct question on whether consent would be sought from any of the devolved administrations. According to him any reform of the Human Rights Act is a matter for Westminster and application is a matter for devolved governments. However, this remains a live issue for constitutional lawyers and legal academics and to date a clear legal opinion on this has not been reached. In fact, it was discussed in depth by Chris McCrudden QC at our conference last week on The Impact of the Human Rights Act on Northern Ireland and others, see here, here and here.
The Committee expressed concern about whether Gove and the UK Government have thought through these consequences constitutionally, saying that this may in fact be the “unravelling the constitutional knitting for very little”, and lead to many of these issues being resolved by UK courts through litigation or judicial review.
Baroness Kennedy humorously quoted from ‘Guys and Dolls’ in relation to the ‘centralized power’ issue, asking Gove if it was not a case of ‘sit down, sit down…you’re rocking the boat’, for very little in return. However, there was nobody on the Committee standing up to rock the boat in relation to Northern Ireland.
There was complete silence in relation to the commitment in the Belfast/Good Friday Agreement to both the incorporation of the European Convention on Human Rights via the Human Rights Act and the Bill of Rights for Northern Ireland. Rather surprisingly, given that Baroness Kennedy was a member of the UK Commission on Bill of Rights in 2012. A Commission that met with Northern Ireland civil society groups and in their final report noted that:
“We are acutely conscious of the sensitivities attached to discussion of a UK Bill of Rights in the context of Northern Ireland. In particular, we recognize the distinctive Northern Ireland Bill of Rights process and its importance to the peace process in Northern Ireland. We do not wish to interfere with that process in any way nor for any of the conclusions that we reach to be interpreted or used in such a way as to interfere in, or delay, the Northern Ireland Bill of Rights process.” (Italics added)
However, still waters run deep…we await with similar concern for the consultation document, hoping that “soon” (the answer given by Gove to the Committee on when the consultation document will be out) means the same in Westminster as it does here. And that we will not ‘sit down, sit down’ but continue to stand up for both the retention of the Human Rights Act and a strong and inclusive Bill of Rights for Northern Ireland. A jurisdiction markedly different from a ‘swaggering’ England.
 See, Belfast/Good Friday Agreement, Constitutional Issues, 1 (iv) & Annex B Irish Government Draft Legislation to amend the Constitution.
 A Rights NI piece on this conference will be available later this week. Chris McCruddens full paper and all other conference speeches will be made available by the Human Rights Consortium in the form of a conference report in the coming weeks. Chris McCruddens evidence to the EU Justice Sub-Committee Inquiry will also be available this month at http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-justice-subcommittee/inquiries/parliament-2015/potential-impact-of-repealing-the-human-rights-act-on-eu-law/