Among the many complexities of Brexit is Prime Minister Theresa May’s determination to pull the United Kingdom out of the European Convention on Human Rights and the European Court of Human Rights (EHCR). This idea, announced in a number of speeches and interviews before the June 2016 referendum while Theresa May was Home Secretary, is now likely to become a central tenet of the Conservative Party manifesto for the 2020 general election campaign.
The Telegraph has reported that the Prime Minister favours an approach similar to the ‘Great Repeal Bill’, which would see existing EU legislation transferred into UK law. Similarly, in the case of the ECHR, the idea would be to ‘lift and shift’ human rights enshrined in the European Convention and write them into UK law. The change would give the UK Supreme Court final say over how the rights are applied.
In recent years, a number of rulings of the European Court of Human Rights on cases brought by the United Kingdom involving extradition of terrorist suspects and prisoners’ rights have been highly controversial, often ruling against the position taken by the Home Office. On 8 December 2016, Attorney General Jeremy Wright informed the House of Commons that rather than having any “quarrel with the content” of the ECHR, “it is the way in which that document is applied that gives us difficulty”.
Nonetheless, it is certain that this major change in the UK’s approach to human rights will attract the serious opposition of supporters of the European agreements and institutions from civil society and political parties alike. However, the most determined opposition is likely to arise in Ireland, since adherence to the European Convention on Human Rights is a key component of the 1998 Good Friday Agreement.
Foreign Minister Flanagan in Seanad Éireann
Addressing Seanad Éireann on 14 May 2015, Minister Charlie Flanagan declared that Ireland is “a firm supporter” of the European Court of Human Rights and the European Convention on Human Rights. The Minister stated that the views of the Irish Government on the broad question of human rights and the Good Friday Agreement” were clear and unchanged. His remarks were emphatic:
“The protection of human rights in Northern Ireland law, predicated on the European Convention of Human Rights, is one of the key principles underpinning the Agreement.”
Mr Flanagan argued that the centrality of human rights in guaranteeing peace and stability in Northern Ireland could not be taken for granted and that it must be fully respected. The Minister went on to explain that a central chapter of the Good Friday Agreement was dedicated to “rights, safeguards and equality of opportunity”. The widely acknowledged international human rights architecture, with the European Convention of Human Rights at its heart, was incorporated into the principles and structures of the Agreement.
In finalising the terms of the Good Friday Agreement, the UK Government undertook to complete the incorporation into Northern Ireland law of the European Convention of Human Rights, ensuring “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”. The commitment was honoured in the text of the 1998 UK Human Rights Act, in particular Section 7, while the Irish Government moved to strengthen the protection of human rights in its jurisdiction by enacting the European Convention on Human Rights Act 2003.
Recognising that the future policy of the UK Government was a cause for concern, Minister Flanagan has also emphasised the seriousness with which the Government takes its responsibility to safeguard the institutions and principles of the Good Friday Agreement. He underlined that protecting the human rights aspects of the Good Friday Agreement:
“As a guarantor of the Good Friday Agreement, the Government takes very seriously its responsibility to safeguard its institutions and principles. Protecting the human rights aspects of the Good Friday Agreement is not only a shared responsibility between the two Governments in terms of the welfare of the people of Northern Ireland but is also an obligation on them as parties to the international treaty”, lodged with the United Nations, in which the Agreement was enshrined.”
“Ripping up” the Agreement
In a speech in April 2016, Theresa May had argued as Home Secretary that “if we want to reform human rights law in this country it isn’t the EU we should leave, but the ECHR and the jurisdiction of its court.” The Northern Ireland section of Amnesty International responded that such a proposal would entail “ripping up” the Good Friday Agreement, the foundation for peace in Northern Ireland, calling such a proposal “not just foolish” but “downright dangerous”.
In their response, Amnesty’s Belfast Director, Patrick Corrigan, described the European Convention on Human Rights as “a cornerstone of the Good Friday Agreement”, highlighting the confidence it has given to people in Northern Ireland that their rights will be protected equally, notwithstanding their religious or political views: “Given the history of political discrimination and mistrust in policing in Northern Ireland, binding international human rights obligations have been crucial in building and bolstering public confidence in these key structures post-Troubles.”
Recalling that the Good Friday Agreement had been endorsed in referenda on both sides of the Irish border and that the Irish government was a co-signatory, alongside the UK, to the Treaty, Patrick Corrigan emphasised that “any scrapping of international human rights commitments could have serious implications for Northern Ireland’s peace settlement.
As far back as February 2015, Minister for Justice Frances Fitzgerald wrote to her British counterpart, Justice Secretary Michael Gove, following statements from Mr Gove about repealing the Human Rights Act, the act that incorporates the ECHR into UK law. She requested that the British government take account of the Belfast Agreement and of the Irish Government’s view in advance of any public consultation about repealing the HRA insofar as it applied to Northern Ireland, reminding Mr Gove of the UK’s obligations under the Belfast Agreement regarding its incorporation into Northern Ireland law.
Ms Fitzgerald affirmed that “while a domestic Bill of rights could complement incorporation, it could not replace it” and stressed that a human rights framework, including external supervision by the European Court of Human Rights, had become an essential part of the peace process. Anything that undermined – or appeared to undermine – this framework could have “serious consequences; for the operation of the Good Friday Agreement.
A Crucial Agenda Item
While the UK Government is likely to postpone action on the ECHR question as they prepare to trigger Article 50, it cannot be overlooked in the crucial interaction between Dublin, London and Belfast in the period ahead. Ensuring the stability of the Good Friday system is widely accepted as fundamental to any post-Brexit arrangement. This must not be threatened by a Conservative aversion to giving prisoners the vote.