Why the UK General Election Matters for Human Rights in Ireland

As Cian noted earlier today, the UK election has begin in earnest. This election, of course, has potentially very significant ramifications for the future of the Human Rights Act 1998 and the Bill of Rights process in Northern Ireland. In particular, the Conservative Party-currently enjoying what seems like a healthy lead in the polls-has proposed the repeal of the Human Rights Act 1998 upon election and its possible replacement with a ‘British’ Bill of Rights. In this post I want to just briefly expand on the concerns about this proposal noted by Cian in that earlier post.

First of all, as we know, a move towards a so-called ‘British Bill of Rights’ might have real and serious consequences for Northern Ireland where the attempts to move towards real progress on drafting and putting into place a Northern Ireland Bill of Rights continues to suffer from serious obstacles. This week the NI and Scottish Human Rights Commissions issued a joint statement expressing concern about the proposed repeal of the HRA. The statement reads:

1.    The Northern Ireland Human Rights Commission and the Scottish Human Rights Commission agree that the UK Human Rights Act 1998 should be ring fenced and built upon as part of further progress in the promotion and protection of human rights within and across all jurisdictions including devolved, excepted and reserved areas.

2.    Both Commissions agree that any process towards establishing a Bill of Rights and Responsibilities, or other similar statute, for the UK or any of its constituent parts, which seeks to repeal the UK Human Rights Act 1998 in part or whole would be retrogressive in terms of the promotion and protection of human rights.  Both Commissions agree that they will oppose any such process.

3.    Both Commissions agree that the above positions are consistent with adherence to the UN Paris Principles and the responsibilities and mandates of both national human rights institutions.

I for one find it difficult to disagree with these sentiments. Whether they will have an impact on the stated intentions of the Conservative party is another question.

Secondly we ought to be concerned about the potential repeal of the HRA because of the rich and interesting way in which in the judicial role in the UK has developed through its use in the courts. Unlike in Ireland, where we have had a doctrine of constitutional supremacy since 1937 which permits courts to strike down legislation that is incompatible with the Constitution, the dominant constitutional doctrine in the UK is parliamentary sovereignty. As a result, traditional rights-based judicial review had not developed in the way in which we know it in Ireland other similar jurisdictions. Although the UK courts still can not strike legislation down on rights (or any other) basis, they can issue declarations of incompatibility and engage in sophisticated and sometimes quite radical ‘interpretive’ activity to make legislation accord with the HRA and, by proxy, the European Convention on Human Rights.* Not only is this interesting from the perspective of judicial development and important for rights protection in the UK, but it is also interesting in this jurisdiction as we continue to try to work through the requirements and puzzles of the ECHR Act 2003. Although the HRA and ECHR Act are not as similar as is sometimes stated, the UK jurisprudence has been of help in this respect already and will, I would think, continue to be an important persuasive source for our courts.

So the UK general election matters for human rights from an Irish perspective in both substantive and intellectual ways. We will keep an eye on developments here at HRinI as we move towards May 6th.