Will a British bill of rights breach the Belfast Agreement? Fianna Fáil’s justice spokesman thinks so.
Jim O'Callaghan says Ireland did not amend articles 2 and 3 of the Constitution to allow "some ambiguous unknown British bill of rights" to replace the European Convention on Human Rights.
The TD for Dublin Bay South added that British politics is in the grip of “English nationalism”.
It is always a delight to hear Fianna Fáil denouncing nationalism. It is also a relief to hear someone distinguish the issue of human rights from Brexit.
Since the EU referendum vote, a lot of people who really ought to know better have apparently confused the European convention with the European Union and assumed that leaving one means leaving the other.
In fact, the convention is a treaty of the Council of Europe, an entirely distinct body to the EU. A British bill of rights to replace the European convention in UK law was a Conservative manifesto commitment three years before David Cameron promised a Brexit vote. So apart from general anti-European sentiment, the two issues are unrelated.
Human rights are also unrelated to the Irish Constitution’s articles 2 and 3, contrary to any inference drawn from O’Callaghan’s remarks. The Constitution was amended to accept the consent principle, which is the bedrock of the peace process.
However, rights are still unquestionably bound up in the Belfast Agreement, and UK justice secretary Liz Truss recently confirmed that the British bill of rights will go ahead.
So, is a breach of the peace process imminent?
Northern law
The short answer is no. The Belfast Agreement only requires the British government to put the European Convention on Human Rights into Northern Ireland law, not UK law.
In the event, the European convention was enacted across the whole UK by the 1998 Human Rights Act – but the North’s separate legal system means the Act can be left on the statute book when it is repealed in Britain. If a British bill of rights is extended to Northern Ireland, it will be supplementary to the Human Rights Act.
The Belfast Agreement also requires “direct access to the courts, and remedies for breach of the Convention”.
This would remain unaffected. People could still bring a case under the 1998 Act in Belfast and appeal it to the UK’s supreme court, which has primacy over Northern Ireland law.
The Act created this role for the supreme court, replacing the need to go to the European Court of Human Rights in Strasbourg, although the supreme court can still refer a case up to Strasbourg for further consideration.
While campaigning to become prime minister last June, Theresa May said she will not withdraw the UK from the European Convention when she enacts Britain's bill of rights. In other words, the UK will still be signatory to the treaty, so the supreme court will still be able to refer Northern Ireland cases to Strasbourg.
Retaining the Human Rights Act in only the North raises the question of British government rights breaches of a “national” character – with intelligence or security decisions, for example. However, as the Belfast Agreement has nothing to say about that, it does not represent a breach.
There is a fascinating contrast here with the 2014 merger of Ireland's human rights and equality bodies. The Belfast Agreement required Ireland to establish a Human Rights Commission "with a mandate and remit equivalent to that within Northern Ireland."
The merger breached this requirement, as Dublin was repeatedly warned. Nor was this breach a mere technicality. Cross-Border institutional equivalence in rights protection is a specific aim of the Belfast Agreement, and was seen as important by nationalists. Yet apart from those who lost their jobs at both quangos, nobody gave a hoot. It is tempting to see a cultural difference in this, with the British cynically following the letter of the law while the Irish observe a spirit they make up as they go along.
Explanation
A more objective explanation is that the Irish see rights as something only Britain breaks, at least in a Northern context. Meanwhile, the British are just not thinking of Ireland at all.
It is only by accident that the human rights protections of the Belfast Agreement are not about to be sabotaged. Discussions on the proposed bill of rights reached a ludicrously advanced stage without the effect on Northern Ireland ever being raised. Ministers and senior officials in London appeared oblivious.
The real threat to the peace process is not a legal breach, but this toxic combination of British apathy and Irish mistrust. The same damage can be witnessed around Brexit, which is also almost certainly not a contravention of the Belfast Agreement. Such a slippery problem will be hard to address, but a good start would be not making up more problems than we have already.