Repealing the HRA, Leaving the ECHR – An End to the Good Friday Agreement?
By Richard A. Edwards. ILHRU. UWE, Bristol.
It is widely reported today that should the Conservatives win the next general election to the House of Commons they will seek to repeal the HRA and leave the jurisdiction of the European Court of Human Rights. This note is not to cover the ground already covered well elsewhere.
There are many dangerous aspects to this foolish policy. But one that is persistently over-looked is the domestic constitutional consequences of any such policy. The fact is that the constitutional landscape of the UK has altered radically since the Conservatives last won a general election in 1992. But they don’t seem to have noticed.
In short, devolution makes the repeal of the Human Rights Act 1998 less straightforward. Of course, in theory Parliament could simply repeal the Act amending the devolution statutes in the process. But that is unlikely to go down well in Belfast, Cardiff and Edinburgh. Parliament would be in effect amending unilaterally their constitutions and such action is disrespectful at best, and at worst, could lead to open feuding between Westminster and the other seats of government at a time when the Union is already in question.
There is, however, a further complication. Both the Scottish and Northern Irish devolution settlements were intended to have the ECHR woven into their constitutional fabric from the outset. Removing the ECHR would be damaging to say the least.
The Scottish Constitutional Convention, a body that the Conservatives boycotted, wanted the new Scottish Parliament to draw up a Charter of Rights:
‘The Convention expects Scotland’s Parliament to provide for special protection for fundamental rights and freedoms within Scots law. This is best achieved through adoption of a Charter, advancing clear principles and specifying the rights and freedoms held to be inviolable. The Convention expects the Charter to encompass and improve on prevailing international law and convention (the European Convention on Human Rights, the International Convention of Civil and Political Rights and the European Parliament Declaration of Fundamental Rights and Freedoms), and to be firmly based on Scottish traditions and values.’
In the end the new Scottish Parliament and Executive was bound to act compatibly with the Convention rights of the ECHR. Today the ECHR is a firm part of Scotland’s constitutional law via the Scotland Act 1998.
In Northern Ireland the position is slightly different but even more fundamental. The devolution settlement in Northern Ireland is driven by the Good Friday Agreement. And as such the Agreement makes specific provision for the ECHR:
5. 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:
(b) 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 …
United Kingdom Legislation
2. 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.
Repealling the HRA and denouncing the ECHR is in direct conflict with this important agreement. Adopting the Conservative’s policy would therefore have serious consequences for devolution in Northern Ireland and the UK’s relationship with the Republic and very possibly the Peace Process. Another very good reason why we should give this madness a miss.