The prospect of the UK repealing its Human Rights Act hasn’t come out of the blue. It’s a pledge that appeared not once but three times in the Conservatives’ election manifesto, and the party’s Eurosceptic right wing has made no secret of its desire to curtail the role of the European Convention on Human Rights.
But the Tories’ commanding win in last week’s British election, which left them with an overall majority that few expected, has all of a sudden made the prospect of a recasting of the relationship between the UK and the Strasbourg court more real.
Repealing the Act may even be among the measures included in prime minister David Cameron’s plans for the first 100 days of his new administration when the Queen’s speech is delivered on May 27th.
The Act, introduced by Tony Blair's Labour government in 1998, gives legal effect in the UK to the European Convention on Human Rights – a charter drafted, with considerable British input, in the postwar years as a way of enshrining in Europe the standards laid down in the UN's Universal Declaration of Human Rights.
The British Act means that people in the UK can bring claims over alleged convention breaches to the UK courts without the need to go to Strasbourg. It also makes it unlawful for any public body to act in a way that is incompatible with the convention, and requires British judges to take account of decisions and judgments from the European court.
Scrapping the Act may have made for a good slogan, but in practice it would be extremely messy. For one, the Scottish government is strongly opposed to the idea, and while in principle Westminster is supreme, in practice it needs Edinburgh’s consent to legislate on areas where power has been devolved. To push it through could risk a major constitutional battle.
But it's the possible implications for the Belfast Agreement that have set off alarms in Dublin. The 1998 agreement expressly committed London to incorporating the convention into Northern Ireland law, providing direct access to the courts and allowing judges to overrule Northern Assembly legislation on grounds of inconsistency with its human rights standards. The Human Rights Act was London's way of making good on that commitment.
Nationalist support
Here, the Government, officially one of the agreement’s guarantors, believes the accord’s human rights provisions were essential to winning nationalist support for the police service and powersharing. The last thing it wants to do is reopen the deal.
Colm O'Cinneide, a human rights specialist at University College London, says that if London repudiated the convention or attempted to dilute its impact, as suggested by British home secretary Theresa May, it would amount to "a clear breach" of the Belfast Agreement. But more modest and cosmetic proposals, as advocated by other ministers, could be adopted without unpicking the agreement.
“Much will depend on the detail,” says Mr O’Cinneide. “What is concerning, and what lies at the heart of the debate here, is that they do seem to be trying to find a way of minimising convention rights, minimising protection offered by the Strasbourg court, and that has very serious implications in particular in Northern Ireland.”
In theory at least, London could come up with a legal arrangement to separate Northern Ireland and even Scotland and Wales from its new regime by excluding devolved functions from its reform.
That would mean saying to Belfast, Edinburgh and Cardiff: you can keep on applying the Human Rights Act in the scope of your devolved functions, but reserve functions, UK law and all law in England will be governed by this new, watered-down human rights regime. The problem with that, says O'Cinneide, is that there are very important areas of Northern Irish law that are not devolved to the Belfast assembly – the most obvious being national security.
“The Good Friday Agreement says specifically that the European Convention on Human Rights will be applied in Northern Ireland law. It doesn’t only say the devolved functions handled by the Northern Ireland assembly,” he says.
“That then creates a huge legal mess. It could open up the possibility of immigration law, which is a UK-wide reserved matter, being challenged using convention rights arguments in Northern Ireland, when you couldn’t challenge it in England. It opens up the possibility of a shambles.”
