Further note on the difference between the Human Rights Act and the proposals of the NIHRC for an NI Bill of Rights
Dominic Grieve QC
1. I have been asked to provide some amplification of my comment in my earlier paper, on the significant conceptual differences between the proposals published by the Northern Ireland Human Rights Commission for a Bill of Rights for Northern Ireland and the structure and operation of the Human rights Act 1998.
2. The Human Rights Act 1998 (HRA) came about as a result of a compromise. On one side were those who wished the United Kingdom to have a detailed national Bill of Rights and indeed to follow foreign examples and make it constitutionally supreme and those who were concerned that such a statute would undermine Parliamentary sovereignty. They feared that by giving to the judiciary of our senior courts the ultimate say on the interpretation and application of rights, it would draw them into the political arena, as they would have to carry out a balancing act between different competing social and political interests and priorities which ought to be the responsibility of elected representatives.
3. In its final form therefore, the HRA adopted a cautious approach that sought to respect what were argued to be UK constitutional traditions. It made those parts of the European Convention on Human Rights (ECHR) to which the UK was adherent, binding on public authorities and accessible domestically through our courts, but went no further. It only attempted to better define ECHR rights in respect of the balance to be struck between the right to Freedom of Expression, Conscience and Religion and any other right, with Section 12 of the Act requiring a court to have “particular regard” to it in respect of journalistic, literary or artistic material” and in Section 13, in requiring a court to do the same in respect to any impact it could have on its exercise by a religious organisation.
4. The HRA also sought to preserve parliamentary sovereignty in its process. In Section 2, it allowed the courts to take into account (but not necessarily follow) decisions of the European Court of Human Rights (ECtHR). In Section 3 it required any primary or subordinate legislation to be read and given effect, so far as possible, in a manner which is compatible with ECHR rights and in Section 6 to strike down incompatible acts of public authorities. But Section 4 provides a mechanism for declarations of incompatibility, that prevents any strike down in respect of primary legislation, although it does allow for a power to remedy the incompatibility by affirmative Order of Parliament.
5. So far as derogation is concerned, the mechanism is kept simple and echoes the requirements internationally on the UK in respect of derogation from the ECHR. If a derogation from the Convention is contemplated it can be made first to the HRA to reflect this by Order. It then lasts five years unless the derogation under the ECHR has been withdrawn in which case it ceases to have effect.
6. No attempt was made in enacting the HRA to give statutory effect in UK domestic law to other international treaties, containing what may be regarded as human rights elements to them, to which we are signatories. The UK operates a “dualist” system of adherence to international law. Unless incorporated into domestic law, adherence to them is currently a declaration of intent and a guide and framework to ministerial decision making, which the Law Officers are duty bound to point out if any governmental decision might breach them. But they are in practise unenforceable through both domestic and in most cases international courts. Despite the dissenting judgement of Lord Kerr of Tonaghmore in R(JS) v Work and Pensions Secretary [2015] 1WLR, where he suggested that the Supreme Court should be willing to enforce domestically a treaty obligation to which the UK is a signatory (in this case the UN Rights of the Child), even if it is not incorporated into our law, the revolutionary nature of this suggestion has not been taken up by others.
7. In contrast the NIHRC proposals are, as it set out in its paper, much broader in scope. While its remit was to supplement the HRA and it has not sought to repeal it, its proposals effectively replace it by substituting a Bill of Rights which goes much further. It suggests inclusion of those protocols of the ECHR to which the UK has not currently signed up. Thus for example, to Article 5 of the ECHR, on Liberty and Security, it suggests adding the text of the Fourth Protocol Article 1 that “no one should be deprived of his liberty merely on the ground of the inability to fulfil a contractual obligation”. The UK has not ratified this as it considers it otiose and poorly drafted in respect of some of the other Articles in it. The NIHRC have also added new general rights. Thus to Article 7-No punishment without law, is added a right to trial by jury for serious offences and the right to waive it. This would then require a formal derogation from the NI Bill of Rights in order to maintain Diplock Courts for terrorism cases, whereas they are at present wholly compatible with the HRA and the ECHR.
8. Most notably perhaps, the proposals range over many other of the UK’s non ECHR international obligations and seek to turn these into binding domestic law. These include socio-economic rights, such as “the right to health, the right to an adequate standard of living, the right to accommodation, the right to work, environmental rights, social security rights and children’s rights. There is then a proposed Limitation Clause to try to ensure that these “Supplementary Rights”can be “subject to reasonable limits which are prescribed by law to the extent that the limits are necessary in a society based on the values of human dignity, democracy, liberty and equality taking account of all relevant factors”. It then lists these and states they should include-the nature of the right, the importance and legitimacy of the purpose of the limitation, the relation between the limitation and its purpose and the availability of less restrictive means to achieve the purpose that the limitation seeks to achieve.
9. It is clear from the above that the NIHRC are therefore advocating a significant change to the nature of governance for Northern Ireland. As all the rights set out are intended to be justiciable, it opens up an large field of government and public authority actions that are open to challenge in the courts and ultimately to a judge reviewing an executive decision in the socio-economic field, with potentially far reaching budgetary consequences.
10. The consequences of this approach are apparent in the Derogation proposals put forward. Firstly the NIHRC proposes a list of non-derogable rights that it identifies as rights that are non-derogable in international law. These go beyond the non-derogable rights in the ECHR and are drawn from those international treaties that are not currently enforceable either domestically or before any international court.
11. These include for example, the “right to an adequate standard of living sufficient for that person and their dependants. This is in the NIHRC “Recommendation 1 of the Right to an Adequate Standard of Living. This requires public authorities to “take all appropriate measures, including legislation, to the maximum of their available resources, with a view to achieving progressively the full realisation of this right.” It is then further defined as applying “ insofar as it corresponds with Article 11(1) of the International Covenant on Economic, Social and Cultural Rights”. The International Covenant itself says in Article (1) “The State parties….recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions. The State parties will take appropriate steps to ensure the realisation of this right, recognising to this effect the essential importance of international co-operation based on free consent.”
12. This right may be difficult to interpret and define in practice if made justiciable. It will be harder to do so if it is asserted it is being breached in a time of national emergency, when it is possible there might be adverse economic impacts coming from it that make continuous improvements in living conditions impossible to achieve. If it is capable of legal interpretation and cannot be derogated from, it raises potential problems for any government to observe and casts the judiciary as the ultimate arbiter of economic and political choices, with the potential attendant litigation that it might generate. Obviously it is a political choice in the first place whether or not a Government wishes to proceed in this direction and whether or not the UK Parliament is willing to sanction it, but even if it only applied to Northern Ireland it would be a significant change from the current position and would produce a human rights regime in Northern Ireland entirely different from the rest of the UK.
13. The NIHRC was well aware of this in making its recommendation. At page 144 of its report it states: “The Commission was of the view that even a strictly circumscribed derogation clause could not apply to any rights, whether re-enacted Convention Rights or Supplementary Rights, which are non-derogable as a matter of international law if the UK has ratified the relevant international instrument. The provision is drafted to ensure flexible evolution in the future so that if the UK ratifies other international instruments with overlap with the rights in a Bill of Rights, these non- derogable rights will also be non-derogable within a Bill of Rights.”
It goes on; “Rights which are non-derogable as a matter of international obligation are identified in the Recommendations. These recommendations are non-derogable, either because expressly stated to be so in international human rights instruments with derogation clauses, or because they correspond with rights in international human rights instruments which do not contain a derogation clause.”
14. The NIHRC is correct in this analysis. But it does raise the question of whether any of these treaties would have been drafted in this way or signed and ratified by the UK if they were, if they had been intended to be legally enforceable domestically. The ECHR was from its outset intended to be open to judicial interpretation by an international court and it drafting and derogation provisions reflect this.
15. Secondly the mechanism for triggering a derogation is different. It requires the UK Parliament to formally confirm the existence of a state of emergency by resolution first and removes the ability to derogate ECHR rights domestically in anticipation of notifying a derogation to the Council of Europe. Instead of five years the duration of any derogation is limited to three months. This mechanism was adopted from the recommendation of the Joint Committee on Human Rights of the UK Parliament in “A Bill of Rights for the UK” published in August 2008.
16. Finally it is noteworthy that the NIHRC propose to seek to “entrench” an NI Bill of Rights by providing a clause that its content, once enacted cannot be changed without cross-community consent in NI. Obviously such a clause is still capable of being repealed without cross community consent on the basis of parliamentary sovereignty. But the intention would produce a statute dissimilar in this respect from the HRA.
17. As before, I will be happy to discuss all the above points further with the Committee if desired.
