The Conservative government is considering a British Bill of Rights that would break the formal link between British courts and the European Court of Rights. Roger Masterman argues that this could have unintended and unpredictable consequences, perhaps creating a situation as constitutionally undesirable as the problem the Conservatives are hoping to solve.
The debate surrounding the enactment of a British Bill of Rights is in part premised on the belief that the decisions of the European Court of Human Rights – given effect pursuant to s.2(1) of the Human Rights Act 1998 (HRA) – exert too great an influence over domestic courts and domestic law. Critics of the Act argue that the courts’ application of s.2(1) has rendered decisions of the Strasbourg court effectively binding in domestic proceedings, while critics of the Strasbourg court argue that its expansionary tendencies have seen the Convention rights reach far deeper into domestic affairs than was intended by its authors.
Following the election of a Conservative majority administration in 2015 the Queen’s Speech contained the promise that the new government would ‘bring forward proposals for a British Bill of Rights.’ This promise is underpinned by an election manifesto commitment to ‘break the formal link between British courts and the European Court of Human Rights’ and entrust human rights decision making to a ‘supreme’ domestic apex court. This short post explores the nature of the link established by the HRA, and the parallel – and more longstanding – link established by the United Kingdom’s membership of the Convention system more broadly, before considering some options for an amended relationship governed by a British Bill of Rights.
The latest crisis in Northern Ireland looks like yet another déjà vu. It’s not that the situation never changes but the remedy offered by London remains stubbornly the same, writes Robin Wilson.
Events in recent weeks in Northern Ireland, including a feud in the IRA in Belfast and tottering power-sharing institutions at Stormont, have highlighted once more that, far from being a ‘post-conflict’ society with an ‘historic’ peace agreement, it remains a region in pre-post-conflict mode where history isn’t over just yet.
This is not, however, due to the ‘ancient hatreds’ often projected on to this complex canvas by the simplifying gaze of superficial observers. As the all-too-similarly dysfunctional nature of post-war Bosnia-Herzegovina and Lebanon demonstrates, it is the consistent application of stereotyping perspectives by representatives of the ‘international community’—the most powerful states with a regional investment—which is the real problem. In all three related agreements—Belfast (1998), Dayton (1995) and Taif (1989)—it has led to the same outcome.
The first step is a conceptual hoovering up of the unique individual diversity of the populace into communal tribes—Protestants and Catholics; Serbs, Croats and ‘Bosniaks’; Maronites, Sunni and Shia Muslims. This fails to recognise the fundamental difficulty that, as the late Italian political scientist Norberto Bobbio pointed out, every democratic constitution is based on the individual citizen. The inevitable victim of this Realpolitik is universal norms: every human rights convention, including those enshrining minority rights, requires the individual to be the rights-bearer; and the rule of law is meaningless unless state institutions are impartial among diverse citizens.
Northern Ireland’s devolution settlement seems fragile again. In this post, Alan Whysall explains the constitutional framework and political background to the latest crisis. It provides factual background for our next two blogs on Northern Ireland, to be posted in the next two weeks.
Northern Ireland politics are largely split between Unionists-a majority, though smaller than previously, represented by the Democratic Unionist Party DUP) and the Ulster Unionist Party (UUP); and nationalists, represented by Sinn Fein and the Social Democratic and Labour Party (SDLP). These parties typically draw more than 80% of the vote, and are in the Northern Ireland Executive, along with the Alliance Party, which has support from both communities.
The devolution arrangements largely reflect the Good Friday (or Belfast) Agreement of 1998, given effect by the Northern Ireland Act 1998. But the Agreement is more than a devolution settlement. It provides for Northern Ireland’s constitutional status, in a way now very widely accepted, so that whether Northern Ireland is part of the UK or a United Ireland is a matter decided by a majority of people there voting in a poll. Opinion poll evidence suggests there is limited enthusiasm for change – even among Catholics, who are generally understood to be nationalist. The Agreement also make provision for structures for cooperation within the island of Ireland, and more widely, including the other devolved governments; a defined Irish role in Northern Ireland affairs; and rights protection.
A ‘reserved powers’ approach to devolution in Wales would offer a number of significant advantages, but applying such a model will not be straightforward. Drawing on research conducted with the Wales Governance Centre and the Constitution Unit for a report published this week, Alan Trench outlines the key challenges.
The debate about a ‘reserved powers’ model for the National Assembly has to be one of the most obscure legal issues to enter public debate. The basic idea is straightforward: that the powers of the National Assembly should be defined by setting out what it cannot do, rather than by defining ‘subject areas’ where it does have power to pass laws. The idea is scarcely novel – it was mooted by the Richard Commission in 2004, and repeated by the Silk Commission in 2014 – but it has acquired political legs following the St David’s Day process with all the parties agreeing to adopt it.
A ‘reserved powers’ approach would offer a number of significant advantages. It would mean that Welsh devolution works in a similar way to that in Scotland and Northern Ireland – important both symbolically and as a way of making it clearer to the public how a devolved UK works. It also offers a way to resolve the puzzle created by the UK Supreme Court’s jurisprudence about devolution, and particularly its judgment in the reference about the NHS Recovery Of Medical Costs for Asbestos Diseases (Wales) Bill,  UKSC 3, by enabling the Assembly to legislate for all matters save expressly those reserved to Westminster. In broad terms, the Scotland Act 1998 provides a valuable model – not necessarily so much in the list of reserved matters in Schedule 5 as in the provisions of the Act for identifying the scope of those reservations and interpreting them in the courts. At present, the list of proposed reserved matters suggests a list of matters Whitehall departments do not wish to see devolved, unsupported by any wider rationale or principle. That is not the right way to proceed when drafting a constitution. It needs some clearer and stronger basis, rooted in a conception of what the UK needs to do at the centre (and why), and what is best done by devolved governments.
The specific scenario in which select committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. But Patrick O’Brien indicates that the research he conducted with Robert Hazell shows the practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement. What is more, it creates opportunities for dialogue and for judicial accountability.
When is a judge not a judge? Lady Justice Hallett carried out a public inquiry into the ‘On the runs’ scheme in 2014. In its report on the same issue in March 2015 the Commons Northern Ireland Affairs Select Committee commented rather sternly that
‘we chose not to summon Lady Justice Hallett to attend, but we consider it to be a regrettable discourtesy to Parliament that she declined our initial invitation to give evidence to the Committee, especially as she had not acted in a judicial capacity when carrying out her review‘. [at para. 11]
Is a judge who chairs an inquiry acting as a judge, or acting as an inquiry chair? Judges, concerned about the implications of being drawn into disputes that are often highly politically charged, tend to believe that they are acting as judges and that their reports should speak for themselves. Parliamentary committees can find this attitude defensive and frustrating. Several years ago the Commons Cultural, Media and Sport committee ran into a similar conflict with Lord Justice Leveson in relation to evidence he gave as chair of the inquiry into phone hacking.
The specific scenario in which committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. However, research I have done with Robert Hazell suggests that such ‘judge-led inquiry’ sessions, despite the problems that may attend them, make up only 5% of all evidence sessions these committees have with judges. The reality is that the vast majority of judicial evidence sessions are uncontroversial. The practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement by both judges and parliament.