The threat to the Human Rights Act rumbles on, albeit, in muted tones compared to the fanfare of the Conservatives 2014 proposals and now juxtaposed by Michael Gove, Lord Chancellor and Secretary of State for Justice’s tepid responses to the House of Lords EU Justice Sub-Committee earlier this week, in relation to their inquiry on ‘The Potential Impact of Repealing the Human Rights Act on EU Law’. There was very little clarity on the UK government’s actual issue with the Human Rights Act and no clear approach to devolution matters on legislative consent or constitutional requirements under the Belfast/Good Friday Agreement (see earlier blog this week here). However, recent conflation of the European Charter and the European Convention on Human Rights centering around the EU Referendum and moving away from a discussion on the Human Rights Act is a cause for concern, see here. Complacency is not an option.
In light of this, the Human Right Consortium’s conference of January 26th 2016, on the ‘The Impact of the Human Rights Act on Northern Ireland’ is pertinent.
The Human Rights Act in Northern Ireland holds a unique position. Any threat regarding repealing or amending it throws up specific issues that are particular to Northern Ireland in terms of civil, political, social, economic and cultural rights.
Human rights commitments in the Belfast/Good Friday Agreement and the strong use of and reliance on the Human Rights Act by both public authorities and grassroots organizations in both advocating for, and securing rights protections, in their day to day work are key factors. Far from the Human Rights Act being the negative threat that some commentators believe it to be in England, the Northern Ireland landscape both politically and societally paints a different picture in terms of the engagement of duty bearers and rights holders, and indeed the continued move towards a rights-based society.
It was with this in mind that the Human Rights Consortium brought together a wide range of Human Rights Act practitioners, with the aim of capturing some of the flavour of these diverse local perspectives. Each spoke on their specific area of work and how that involved the practical application and the positive impact of the Human Rights Act, and provided commentary on why it is necessary for it to be retained, and risks associated with its withdrawal.
Some key conference messages
The keynote speaker Chief Constable George Hamilton’s following statement from his speech highlighted the negative impact of any repeal of the Human Rights Act. He was supported by all other speakers of the event when he said that:
“The practical consequences if the Human Rights Act is repealed would be hugely detrimental to, both confidence in policing and the confidence of the police to make difficult decisions”.
In fact, the Police Service of Northern Ireland was notably one of the first public authorities to embed the Human Rights Act into their policy and practice. The appointment of the Human Rights Advisor under the 1999 Patten Report, and similarly the accountability mechanisms through the Policing Board and the Police Ombudsman’s Office set up to scrutinize, through a human rights lens, the use of policing powers are indicators of this. The Policing Board in particular along with their Human Rights Advisor, produces an annual report highlighting both good practice and issues of concern for review. The Chief Constable went into further detail on the use of the Human Rights Act and the human rights framework and concluded in emphasizing its centrality to their work.
This is not to say that there are not gaps in the human rights work of the PSNI. Solicitor Niall Murphy outlined this in his ‘Reflections on the Human Rights Act’. The risks associated with any repeal in relation to dilution of the human rights frameworks already in place were addressed in relation to policing and justice issues including amongst other things, stop and search activity, the Regulation of Investigatory Powers Act 2000, Closed Material Proceedings, the return of the Supergrass etc. His ultimate conclusion was that any proposed repeal of the Act “is a retrograde step of cataclysmic proportions, not only for those seeking truth recover and accountability…but for all those concerned with open government and accountability”.
The threat to the peace process and the exploration of the constitutional issues were outlined by Brian Gormally, see here, Director of the Committee on the Administration of Justice and were further delved into in all their complexities by QC and Academic Professor Chris McCrudden. Building on evidence he had presented earlier that day to the EU Justice Sub-Committee Inquiry into the ‘Potential Impact of Repealing the Human Rights Act on EU Law’.
From a social and economic human rights perspective, while case law and advocacy reflect similar human rights challenges as other jurisdictions, research has shown that exercising of rights for persons with disabilities, the aged, children or any of the large number of most-at-risk groups in a transitional post-conflict society such as Northern Ireland should be seen within that context, see here.
Paddy Kelly, Director of the Children’s Law Centre reflected on a time prior to the Human Rights Act, back to the very first seminar of the Children’s Law Centre which focused on “the potential that the Human Rights Act presented to vindicate children’s rights” in Northern Ireland. She said that within that context she was struggling to believe that she was actually standing in defense of the Human Rights Act given the benefits it has brought to children since its enactment.
Paddy Kelly was particularly clear on how the Human Rights Act had actually reduced the need to go to court to vindicate the rights of children.
“A generation of children have benefited from the protections afforded by the Human Rights Act. We would be seriously challenged to defend the rights of our most vulnerable children in this jurisdiction in the absence of the Human Rights Act. Advocating for the child under the Human Rights Act often circumvents costly and prolonged litigation”.
Margaret Kelly, Director of MENCAP provided information on a successful case they took, along with a couple with learning disabilities who in order to get married had to pass the mental capacity test through adult social services. An assumption was made that they had to prove mental capacity, rather than assuming that they both had mental capacity. They were refused permission to get married in the first instance. Along with MENCAP they took a legal challenge and eventually that was changed. Margaret Kelly is unequivocal on the importance of retention of the HRA:
“So for me the discrimination and the rights infringements suffered by people with learning disabilities very much sits within those key areas that the HRA raises. The HRA has been critical for MENCAP at both an individual level but also at a government and a structural level, to actually seek redress. We have a really long way to go in terms of ensuring that people with learning disabilities have access to equal rights. The issue of capacity of people with a learning disability is going to become even more important going forward and for us, keeping the Human Rights Act and using it as the key platform to shape our arguments about what life should be like in reality for people with a learning disability is critical and its part of why we are very supportive of the campaign to keep the HR Act.”
Michelle Millar, Human Rights Advisor, from Disability Action (DA) spoke of how they used the right to a family and private life from the Human Rights Act in an advocacy process. Specifically, in relation to a mother’s access to her new born baby who was taken directly into care because she had motor neurone disease. Rather than putting in place a care package to support her caring for her baby at home the local Trust found that she lacked the capacity to do so. With the support of Disability Action, and reference to the protections under article 8 of the Human Rights Act, the right to private and family life, she successfully challenged this decision and the local Trust implemented a care package which allowed her to be reunited with her child.
A key message from Michelle Millar and Disability Action was the overarching reality that persons living with disabilities have the same rights of everyone else. However, realizing those rights relies on the existence of the Human Rights Act both to hold public authorities to account and assist making the necessary changes to provide services within the human rights framework.
Edel Quinn the Strategic Policy Advisor from Age NI advised that the Human Rights Act is part of the set of basic human rights standards beyond which no government should go, particularly in relation to older people. While older people have a right to live as equals many find it hard to attain that minimum level of protection of rights even now. However, Edel noted that there is a growing body of evidence of how the Human Rights Act is being used through case law in particular around older persons attaining their rights protections in care homes, prisoners, and attaining continued independent living in the home setting.
In conclusion Les Allamby, the Chief Commissioner from the Northern Ireland Human Rights Commission, outlined how critical it is that we do not wait for a consultation from the UK Government but keep working on the importance of the Human Rights Act in Northern Ireland. He noted the sensitivity of the UK government regarding how they are seen by others on the international stage, the ongoing constitutional issue with regards to any repeal or change to the Human Rights Act and the practical implications of this in relation to human rights protections with regards to mental health, hospitals, policing, prisoners and adoption, as some examples.
The Chief Commissioner outlined the importance of the Human Rights Act in terms of public authority duties. He also again reiterated of the importance of human rights in relation to policing as outlined by the Chief Constable earlier in the day, and said that he would personally push for the the PSNI either publicly or privately to respond to any UK government consultation.
He reminded us that there is a role for the Irish government in this consultation process, as signatories to the Belfast/Good Friday Agreement. Coming up to the 20th anniversary of this agreement, he highlighted that the Bill of Rights for Northern Ireland, supplementary to the European Convention on Human Rights and not a British Bill of Rights, is still outstanding, and that there should be no attempt to dilute it in this process.
These are only a snippet of ideas shared at the conference on how the Human Rights Act is relevant to public authorities, as duty bearers, and used by these expert practitioners and the rights-holders they work with who rely on the Human Rights Act for these protections.
A full conference report will be available from the Human Rights Consortium in the coming weeks.
 Chris McCrudden’s 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 McCrudden’s 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/