Written evidence from the Northern Ireland Human Rights Commission (HRA0044)

The NIHRC provides this submission to the Joint Human Rights Committee (JCHR) on the Independent Human Rights Act Review (IHRAR).

The NI Context

The Belfast (Good Friday) Agreement 1998 created a duty on the UK government to incorporate the European Convention on Human Rights (ECHR) into domestic law “with direct access to the courts, and remedies for breach of the Convention, including the power for the courts to overrule Assembly legislation on the grounds of inconsistency”.[1] This incorporation was achieved through the HRA.[2]

The continuing centrality of human rights protection and a commitment to the GFA, is evidenced through the NI protocol to the EU/UK Withdrawal Agreement. The UK government made a commitment to “no diminution of rights under the Rights, Safeguards and Equality of Opportunities” section of GFA.[3] Given the UK government’s commitment to uphold the GFA and ensure no diminution of rights, we would caution against any proposals, which diminish access to remedies for ECHR violations through reform of the HRA.

In keeping with commitments under the GFA, the ECHR is embedded into the Northern Ireland Act 1998 (NIA), with sections 6 and 24 requiring compatibility with Convention rights. While the IHRAR is not reviewing the content of the Convention rights, potential recommendations for changes to operational mechanisms may consequently affect the NIA.

The GFA and the St Andrews Agreement 2006 provide for a Bill of Rights for NI. A Bill of Rights for NI affords an additional layer of human rights protection to supplement the HRA. In its concluding observations on the UK, the Committee on Economic, Social and Cultural Rights noted the UK government should take steps to expedite the adoption of a Bill of Rights for NI.[4] The New Decade New Approach agreement committed to establishing an Ad Hoc Committee to consult on a Bill of Rights.[5] Given the potential for the IHRAR to lead to changes in the operation of the HRA, it is vital to ensure protection of human rights in NI is not diminished.

The Committee may wish to advise the IHRAR Team to consider the Belfast (Good Friday) Agreement and the UK Government’s commitment to non-diminution under Article 2 of the NI Protocol as part of its deliberations.

The Committee may wish to advise engagement with the Ad Hoc Committee on a Bill of Rights for NI to ensure that the NI context is carefully considered as part of the review process.

Has the Human Rights Act led to individuals being more able to enforce their human rights in the UK?

The HRA has allowed individuals to challenge human rights violations. This is particularly valuable for NI, given its post-conflict status, in holding the state to account over issues in dealing with NI’s past. The role of domestic courts applying Convention rights remains central to the protection of rights in NI.[6] Changes to section 2 may lead to increased cases brought to Strasbourg, which would be a regressive step in terms of human rights recourse for legacy issues.

How has the operation of the Human Rights Act made a difference in practice for public authorities?

Section 6 of the HRA requires public authorities to act in compliance with Convention rights. Jurisprudence informs our understanding of how the UK complies with Convention rights. Public authorities must follow this case law to ensure that they are operating in a manner that is compatible with the ECHR. This creates certainty within public authorities and avoids litigation in situations where there has been a breach to human rights standards, which can be expensive and time consuming. It also seeks to avoid rights breaches as a result of incompliant policy or decision making.

What has been the impact of the Human Rights Act on the relationship between the Courts, Government and Parliament?

Section 3 of the HRA identifies that both primary and secondary legislation should be read in a manner compatible with Convention rights. The HRA reserves the function to amend primary legislation to Parliament preserving the doctrine of parliamentary sovereignty, and in keeping with this, court decisions have reinforced judicial deference to the legislature.[7] The Court of Appeal noted that courts should exercise “considerable caution before intervening with a scheme approved by Parliament”.[8] In Bellinger, Lord Nicholls noted that gender identity would require extensive enquiry and public consultation, identifying that, in respect of social policy and administrative feasibility, “the issues are altogether ill-suited for determination by courts and court procedures. They are pre-eminently a matter for Parliament”.[9]

The HRA was particularly important to NI, during the suspension of the Assembly between January 2017 and January 2020. In a judicial review  on abortion law by the NIHRC, Lord Mance noted there was no indication when or if Stormont would resume operations.[10] As such, Lord Mance commented that the present law was incompatible with Convention rights, stating that it was in need of “radical reconsideration”.[11]

Has the correct balance been struck in the Human Rights Act in the relationship between domestic courts and the ECtHR? Are there any advantaged or disadvantages in altering that relationship?

Section 2 HRA requires courts to “take account of” ECtHR jurisprudence. Lord Phillips noted, had there been no such obligation under the HRA, the courts would do so automatically, “because it would be the proper course when trying to resolve issues relating to the meaning of the Convention”.[12]

While courts must take account of ECtHR jurisprudence, they are not compelled to follow it. This is evident in Poshteh, where the UKSC felt that Strasbourg jurisprudence on article 6 had gone beyond the scope of what was intended. Lord Carnwath noted, a ECtHR decision was not a sufficient enough reason to depart from the Court’s own unanimous conclusion.[13]

The ECtHR affords a margin of appreciation when determining decisions on State compliance with Convention rights. The ECtHR notes a narrow approach is applied where an important facet of an individual’s existence or identity is at stake.[14] While a wider margin is accorded where there is no consensus within the Council of Europe as to the “importance of the or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues”.[15]

There have been positive instances of judicial dialogue between the ECtHR and domestic courts. Lord Neuberger noted that constructive dialogue with the ECtHR is “of value to the development of constitutional law”.[16] After the UKSC’s decision in Horncastle, the Grand Chamber found no violation to article 6 in Al-Khawaja v UK, this was determined to be a good example of judicial dialogue by Judge Bratza.[17]

The relationship between domestic courts and the ECtHR is reciprocal, with domestic courts taking account of ECtHR jurisprudence, but without the obligation to apply it inflexibly. While the ECtHR has listened to judicial dialogue and accounted for the specific circumstances of the State when making decisions.[18]

The Commission recommended to the IHRAR that the relationship between Strasbourg and domestic courts was functioning appropriately with no changes were necessary to Section 2.

Are there any advantages or disadvantaged in seeking to alter the extent to which the Human Rights Act applies to the actions of the UK (or its agents) overseas?

The Overseas Operations (Service Personnel and Veterans) Bill aims to create protections for members of the armed forces following breaches of the ECHR, resulting from overseas military operations by introducing a six-year statutory limitation. The Bill excludes alleged crimes involving military personnel in NI.[19]

Concerns regarding the Overseas Operations Bill have been identified by the UN Special Rapporteur on Torture[20] and the NIHRC.[21] The UN Committee against Torture (CAT) recommended the UK Government “refrain from enacting amnesties or statutes of limitations for torture or ill-treatment”, which are inconsistent with UN Convention against Torture.[22]

The extraterritorial application of UK human rights legislation is not unusual, for example, in relation to domestic abuse offences committed by UK citizens abroad; and forced marriage and sexual offences where the victim is under 18.[23]

Removing or rescinding the extra-territorial application of the HRA for military personnel overseas would lower the standard of accountability for human rights breaches for the state below the standard for private citizens.

The Commission recommended to the IHRAR that the HRA should apply extraterritorially.

16/03/2021