22nd September 2021
Yesterday United States President Biden spoke about his concern about a possible change to what he called ‘the Irish Accords’.
From the context of the question and answer, Biden meant the Good Friday/Belfast Agreement – though the question was framed in terms of the Northern Irish Protocol of the Brexit withdrawal agreement.
The question and answer are here and you should watch and listen for yourself:
Life line for our Human Rights Act, too. https://t.co/HB4ZQN8JfH
— Sonya Sceats 🧡 (@SonyaSceats) September 22, 2021
You will see in the tweet above that the estimable Sonya Sceats, the chief executive of Freedom from Torture, avers that the exchange is a life line for the Human Rights Act 1998.
Is she right?
And what is the connection between that exchange and the Human Rights Act 1998?
Here we need to see what the Good Friday/Belfast Agreement says.
In respect of the European Convention on Human Rights (ECHR), the agreement says the following:
‘There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including […] the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission [and] arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland’
and
‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’.
*
These passages are explicit: the ECHR is a ‘safeguard’ and the ECHR has to be enforceable in the courts of Northern Ireland.
The agreement does not expressly mention the Human Rights Act 1998 – not least because that legislation had not yet been passed at the time of the agreement.
But one of the things that the act does in respect of Northern Ireland – as well as for the rest of the United Kingdom – is to make the ECHR enforceable directly in the courts.
This is instead of requiring a party seeking to rely on the ECHR to petition the European Court of Human Rights in Strasbourg, as was the position before the act took effect.
Of course: you do not – strictly – need the Human Rights Act 1998 to be in place to fulfil the express requirements of the Good Friday/Belfast Agreement, as long as the ECHR remains enforceable locally in Northern Ireland.
But if the Act were to be repealed – which is a long-term goal of the new lord chancellor and justice secretary Dominic Raab – then there would need to be replacement legislation in place the very day the repeal took effect for ECHR rights to remain directly enforceable in the courts of Northern Ireland.
*
So does this mean the Human Rights Act 1998 is safe?
I am not so sure.
I averred on this blog when Raab was appointed (and I am sorry to quote myself):
‘And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.
‘If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.’
Having seen the exchange with Biden, I am now wondering if my (dismal) view is correct.
A wise government of the United Kingdom will be anxious not to give the slightest indication that anything related to the Good Friday/Belfast Agreement was up for any change – and continuing local enforcement of the ECHR is an express provision of that agreement.
A wise government, concerned about its relations with the United States, would thereby not touch the repeal of the Human Rights Act 1998 with a barge pole.
It would just take one credible complaint that the Good Friday/Belfast Agreement was at risk, and there would be an international problem.
Repealing the Human Rights Act 1998 would not be worth these risks – especially as it would have to be replaced immediately with legislation having the identical effect in respect of Northern Ireland.
But we do not have a wise government – we have a silly government.
And given the long-term obsession of the new lord chancellor with repealing the Human Rights Act 1998 – and that this may even be a reason for why he accepted his political demotion – one can see the repeal (and its immediate replacement) still going ahead in symbolic form – even if not in much substance.
*
But the politics of symbolism does not just have one direction.
Against Raab’s fixation with the symbolism of repealing the Human Rights Act 1998 is the transatlantic symbolism of doing anything that could remotely affect the Good Friday/Belfast Agreement.
So it may be that Sceats’ view is correct – and the Human Rights Act 1998 is safer than before.
But, on any view, repeal seems an unwise political path to take, given how much politically – and how little legally – is at stake.
**
Hello there – if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.
You are right to draw attention to this. When presented with any opportunity to make a questionable judgement, this government has not faltered.
Forgive my ignorance, but why does Raab want to repeal the Human Right Act? What “legal” good does it do ? ( I can understand some political motivation although as explained in this article this is politically risky)
If anyone is able to point me out to some of the reasons, I would be very grateful.
A very good question. What exactly does Raab object to in the Human Rights Act? Is it the very fact of having such an Act at all or are there particular sections to which he objects? I am not in the UK and have not followed this issue or know much about Raab, but to be as generous as possible to Raab, I can imagine the existence in the Act of progressive ideology and over-reach which any principled conservative could find objectionable. I am not saying this is the case but if Raab has a point, what is it?
There may be an explanation in today’s news (23 September).
The Council of Europe has written to Brandon Lewis, the Secretary of State for N Ireland about the government’s proposals to cease prosecutions for ‘troubles’ related crimes — a ‘statute of limitations’. This has been described as an amnesty.
The Council thinks that this action could breach international law: the Council’s Commissioner wrote:
“I am concerned about these proposals, which might bring the United Kingdom into conflict with its international obligations, notably the European convention on human rights (ECHR)”.
https://www.theguardian.com/uk-news/2021/sep/23/uk-plan-to-end-troubles-prosecutions-could-breach-international-law
Raab has previously openly referred to his intention to alter the political environment in the country.
The HRA acts as an obstacle to some of the free-market reforms that Raab would like to introduce – from hire and fire reforms to union busting legislation. Black listing political opponents is also a no-no – although there are ways around that.
Raab wrote a book with Truss and Kwarteng in 2012 which lays out some his thinking. Britannia Unchained.
As Voltaire noted, telling rich men what they want to hear never damages ones career.
https://youtu.be/FshWabJqCFs
sorry for the slomo at the end and that i cant tell you why he has this opinion but i am pretty sure it is not a deepfake
If you can bear it, watch this from 2014: https://www.bbc.co.uk/news/av/uk-politics-29461982
He says he is content with the “basic” human rights in the European Convention on Human Rights, but complains about an “extension” or “expansion” of human rights, both in Strasbourg and the UK domestic courts. He also objects to “judicial legislation” by “unelected judges”, which he says undercuts decisions that should be taken by democratically elected politicians in the legislature.
Or to put it another way, he is content with high-minded statements of principle, but not happy with when those abstract principles are applied to real cases with practical consequences. He also seems uncomfortable with our centuries long legal tradition of judges evolving the common law by applying judicial precedent to new facts.
Raab calls the court decisions – the ones that he disagrees with – warped, perverse and arbitrary. Specific examples he gives are:
* “whole life” tariffs – which we still have, but as a result of Strasbourg rulings it is under a judicial regime rather than at the whim of a politician
* voting for prisoners – which we still deny on a blanket basis, despite most (all?) other countries in Europe allowing it subject to conditions, and notwithstanding several Strabourg rulings to the contrary; and prisoners who sued were told they were not entitled to any compensation for the infringement of their human rights
* the deportation of Abu Qatada to Jordan – which eventually took place once Jordan agreed not to use evidence obtained through torture (and I understand he was ultimately tried and acquitted)
I cannot understand why he appears to be so obsessed with such thin and ineffective legislation. The UK courts must “take account” of Convention rights and relevant judicial decisions; they must, so far as possible, construe legislation so it is compatible with the Convention rights; and in extermis they can declare the law is not compatible with Convention rights. And that is it.
What is so offensive about that? Unless it is not about the practical day-to-day legal impact of the Human Rights Act at all, but rather about its symbolic importance.
Symbolic importance surely. Isn’t it along the same populist lines as Take Back Control, Get Brexit Done, and Push Migrants Back? And trumpets to the multitude that human rights are more often than not used as a wangle by those wishing to sidestep good old British justice (ironically) – Abu Qatada as you say and, of course, other scummy foreigners taking up space on this pure jewel of an island.
The suggestion that human rights should not be extended or expanded suggests there is a well defined and widely accepted set of things that are plainly “human rights”, and that no new situations can arise that should be included.
Just to pick one example, Article 3 says “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
That seems pretty uncontroversial, but what exactly is “torture” or “inhuman or degrading treatment or punishment”? How about waterboarding? Or stress positions?Deprivation of sleep? Birching? Life imprisonment with no hope of release? Or deporting a person to another place where there is a real risk they will be tortured?
Perhaps the answer seems obvious to you, but each of these has been contested, and the proper venue to decide contested questions of this sort is a court of law.
It seems to me that the disproportionate hostility to human rights, in parallel with the attacks on judicial review, is saying that the executive knows best, and their decisions should not be subject to any kind of oversight. And in particular that right-thinking English politicians (supported as they would aver by the will of the people) should not be constrained by the idiosyncratic dictates of unelected foreign judges or their vassals in British domestic courts.
We agree then!
Voting for prisoners is a human rights issue? Why then am I disenfranchised after Brexit from voting in both the UK and in my adopted country Italy.
I feel it is a terrible injustice and one I will never forgive.
Yes, Catherine, voting for prisoners is a human rights issue. Prisoners are living, breathing, thinking, feeling people too, just like you and me.
More specifically, Article 3 of Protocol 1 sets out an undertaking to “hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”. This has long been interpreted as granting rights to individuals, including the right to vote and the right to stand for election.
Prisoners continue to enjoy all their Convention rights, except for the right to liberty. The court have held that simple fact of being a prisoner is not grounds for denying Convention rights, including the right to participate in elections. As the Strasbourg court has made clear repeatedly, a voting restriction can be imposed by the court as an additional criminal punishment or by electoral laws, but in either case it must be a proportionate penalty in the circumstances, not on an automatic basis.
Here is the Hirst (No.2) ruling from 2005. https://www.bailii.org/eu/cases/ECHR/2005/681.html
The court recognises a wide margin of appreciate for states to determine their electoral rules, but ruled (by a 12-5 majority) that the UK’s “general, automatic and indiscriminate restriction on a vitally important Convention right” – affecting tens of thousands of people, whatever the crime, and however long or short the sentence – is arbitrary and disproportionate.
The ruling identifies several other European countries with similar absolute bans on prisoners voting, and some with partial restrictions. I understand that many have changed their rules in a way compliant with the Convention. See for example https://felonvoting.procon.org/international-comparison-of-felon-voting-laws/
Not the UK of course. It is a relatively easy thing to fix in a way that is compliant with the Convention, and a number of proposals have been made (eg allowing votes for those imprisoned for less than a specified time – 6 months, or 12 months, or 4 years) but none have progressed. The proposed Voting Eligibility (Prisoners) Bill went nowhere. See https://researchbriefings.files.parliament.uk/documents/CBP-7461/CBP-7461.pdf
Catherine, I’m sorry if Brexit has denied you the opportunity to vote in the UK or Italy. Perhaps this is something that could and should have been dealt with in the Withdrawal Agreement. That is a human rights issue too. You might want to consider bringing a claim for a breach of your Convention rights in Italy and/or the UK.
Let us hope that Biden’s comments do indeed lend a lifeline to the Human Rights Act. It would be typical of this administration to concentrate on a piece of unnecessary ideologically driven piece of legislation rather than address the litany of practical issues that are very pressing in Raaaaab’s Ministry.
Johnson’s rapid agreement with Biden over not destabilising NI at the press conference was utterly cringe-making, but a clear demonstration of the reality of the “special relationship”.
I live in NI, and lived through “the troubles” — I was a surgeon then, so I’m not unbiased.
I understand that the drafting of the ECHR was done mainly by British lawyers. I do not understand why the present government wishes to repeal the Human Rights Act and replace it with a “British” Act. It’s almost as if Tories/Brexiteers think that anything with the word “European” attached is poisonous, something the emits dangerous radiation.
As for the government being “silly”, they are far more than that. They are incompetent and untrustworthy. In their haste to “Get Brexit Done” they didn’t understand the NI Protocol, yet signed up to it — and now think they can get it changed.
Johnson attended the DUP’s party conference and told the delegates that there would not be a “sea border”; yet there now is one.
Joe Biden’s ancestors came from Ballina, co Mayo, and Carlingford, co Louth; he is very proud of this and has visited both places. It’s very clear that he won’t agree to anything that impacts on the GFA in any way.
The video above is also available here:
https://www.youtube.com/watch?v=VSosMmsBXFc.
The relevant part is at about 8 minutes; the video has subtitles.
I think you are quite right, Dr. Campbell, when you think that anything “European” sounds poisonous and dangerous to the ears of this UK government.
Also, I agree on this UK government not being merely silly. They and their form of political organization (is “polity” the right word?) are the expression of a nasty far-right gang, not terribly dissimilar to the fascists that shot and hanged members of my family during the Italian Resistance.
I wonder, why does the Aukus agreement somehow ring a bell? The Molotov-Ribbentrop pact, perhaps?
I’m sorry to hear about your family’s experiences, Claudio.
The present UK government is clearly far-right and populist; and yes, polity for the system of government is an appropriate word.
The Council of Europe was founded in 1949 to uphold human rights, democracy, and the rule of law in Europe. There are 47 member states today. (Belarus is not a member.) The European Convention of Human Rights was drafted under the guidance of a UK lawyer and MP.
The European Court of Human Rights is the body that enforces the Convention. The Council of Europe is not part of the EU, though no state has joined the EU without first belonging to the Council of Europe. Membership of the Council of Europe was not on the 2016 referendum ballot.
The Charter of Fundamental Rights of the European Union enshrines certain political, social, and economic rights for EU citizens into EU law. It is not the same thing as the ECHR.
My apologies for this digression; I really wonder if Raab, the PM, and members of the government (and Theresa May) actually understand all this. What they say and do strongly suggests that they do not understand. Yet none of it is difficult.
“The Irish Accords” is a telling and beautiful expression, if a trifle ambiguous, and I hope to hear it used more often. It evokes discord resolving into concord; behind it I can almost hear the Harp that Once Thro’ Tara’s Halls shedding the soul of music once again.
Contrast that with GFA & NIP, which are likely to induce MEGO (‘My Eyes Glazed Over’). I suspect that it is harder, politically, to breach an accord than an acronym. The ‘Irish’ bit matters, too, as it implies, correctly, that these are all-Ireland agreements with counterparties in Dublin and Brussels and the UK government cannot just do as it pleases with them.
I’m conscious that precision is all important in law, but rhetoric matters in politics.
Two thoughts. First, could Raab achieve his aim with a two line Act:
Section 1 – Repeal – The Human Rights Act 1998 is abolished.
Section 2 – Territorial extent – Section 1 does not extend to Northern Ireland.
And then, whatever mechanism is used – either repealing the whole of the Human Rights Act and then relegislating it back into effect in Northern Ireland only; or leaving the Human Rights Act in place for Northern Ireland only, and disapplying it in the rest of the UK – might that create situations when a legal action could be brought in Northern Ireland but no longer in the parallel jurisdictions in the rest of of the UK?
I am thinking of situations with application across the whole of UK , where an action could be brought in each legal jurisdiction – such as the prorogation of Parliament, judicially reviewed in the Cherry case which started in Scotland, and the Miller case in England, and then brought together at the UK Supreme Court.
And then for example could someone whose rights have been infringed move to Northern Ireland so they could bring a case in the domestic courts there, when otherwise they’d have to petition Strasbourg?
The political “symbolism” that you mention near the end is the point of all this, and it is starkly simple: to replace a set of laws currently badged as “European” with a set of laws badged as “British”.
With that knuckle-draggingly crude aim achieved, Raab and his ilk can successfully misrepresent this, mainly to Middle England voters via the tabloids, as some sort of follow-up to Brexit, another slap in the face for those meddling Europeans who are trying to impose their laws on “us”. The crowing and chest-thumping – and the legal nonsenses – will be depressing and endless.
But if this comes to pass, some hope that the laws themselves – and their application by British and Northern Irish judges – will remain more or less identical. Indeed they have to, some will say, if the UK does not want to start losing cases in Strasbourg – and, as you point out, to prevent upsetting the delicate compromise of the Good Friday Agreement.
To repeal the HRA and replace it with a “British” Bill of Rights which mirrors the Convention and its case-law at national level would be a huge step back – and, frankly, a terrible shame. As parliament has been told repeatedly by everyone who knows anything about it, the HRA works beautifully, not least the delicate balance which retains parliamentary sovereignty while enabling the UK to honour its commitments under international law.
But, as you acknowledge, there’s no *requirement* that the Convention must be directly applicable in national law. Raab may try to reassure the Americans – and indeed Northern Ireland’s nationalist and Catholic communities – that as long as Convention rights are upheld, as the Good Friday Agreement stipulates, it doesn’t matter how the UK achieves this. He will say that by scrapping the HRA he is only returning to the situation pre-2000 – and may even try to tell the people of Northern Ireland that, under a “British” Bill which mirrors the Convention, their rights will be “just as safe” as they were before.
But there are plenty of reasons to be skeptical about such claims. There’s no doubt this is a cherished Brexiteer project – remember Cummings’ chilling prediction that they’d be coming for the ECHR next? And we know there are plenty of areas where the UK wants to escape Strasbourg rulings, from “human rights on the battlefield” to curbs on migration policy.
As Raab and his Brexiteer co-plotters know very well, without British judges applying the Convention directly – in Northern Ireland or anywhere else in the British Isles – the government will be much freer to start eating away at the rights it contains which they don’t happen to like.
So, ultimately, this is about more than just “badge engineering”. If the HRA really is scrapped, it won’t be long before any British ECHR “mirror” – whatever it might be called – starts to crack.
I think Tory opponents of The Human Rights Act fail to realise that the it basically puts the ECHR into British Law. It isn’t Tony Blair’s own special version of the ECHR designed to annoy the Tories. They see it as a criminal’s charter because of a few high profile cases misrepresented in the tabloids where convicted criminals avoided deportation, plus Theresa May’s infamous cat story. Then there are those who say we don’t need Human Rights protection because the British Government is always fair. Well that is manifestly not the case.
Previous Conservative attempts to repeal or replace the Human Rights Act have failed because it’s a political and legal minefield and simply not worth the effort. Human rights are indivisible, either we all have them or we do not. They won’t be able to draft a replacement which applies to some people but not those deemed unworthy of protection. It would just create bad law full of special exemptions.
As Raab famously was unaware of the importance of Calais for British trade, perhaps he too is unaware of the contents of the 1998 Act?
I would suggest that in their eyes, it kinda is: it is an Article Of Faith with Raab and his like, that the only people who should have rights, is them.
It is deeply worrying that intelligent well informed people are here highlighting the dangerously undemocratic intentions of our current government, yet it seems we feel helpless to protect the nation/s from the combined power of lies, money , corruption of the tabloid press and government with the ignorance and lack of citizenship education of the populace in general.
All are being swept along to a dystopian society. In fact it’s already here for many.
What can we do? Many thanks for this blog.