We must look at the potential implications for human rights if the Good Friday Agreement were to break down, with a loss of neutrality in Westminster leading to a resurgence in the kind of violence that was stymied by the conclusion of the peace process.
In a brief reflection for the Atlantic in 2007, David Foster Wallace asks, in the aftermath of 9/11, “[w]hy now can we not have a serious national conversation about sacrifice, the inevitability of sacrifice—either of (a) some portion of safety or (b) some portion of the rights and protections that make the American idea so incalculably precious?” In contrast, capitalising on a moment of exception in the aftermath of deadly violence in Manchester and London, Theresa May sought to forestall any similar conversation here in the UK. Instead she promised to introduce new measures to combat terrorism and to “rip up human rights laws”.
The Conservatives’ 2017 manifesto, composed before the attacks, promised that no repeal or replacement of the HRA would take place “while the process of Brexit is underway”, but that a review of the UK’s human rights laws will be conducted after the process concludes. Should Conservatives come to a ‘confidence and supply’ agreement with the Northern Ireland Democratic Unionist Party (DUP) in the aftermath of a hung parliament, the consequences are clear. The DUP, which has previously supported replacement of the Human Rights Act (HRA), will almost definitely vote with them on “big issues”, including matters of security and the economy. This will likely include any changes to the UK’s human rights framework.
The HRA makes most of the rights set out in the European Convention on Human Rights (ECHR) domestic law. This means claims can be brought in UK courts before being heard at the European Court of Human Rights in Strasbourg, if necessary. It forms an integral part of the UK’s devolution settlements, and is the mechanism by which the British government fulfills its obligations to fully incorporate the ECHR into Northern Ireland law under the Good Friday Agreement.
The incredibly fragile arithmetic balance in Parliament that a confidence and supply arrangement would deliver means that it is highly unlikely that the government would be able to pass legislation repealing or replacing the HRA, even in the event that the agreement were to endure after Brexit. Almost every other political party opposes the repeal of the HRA, and that’s not to mention division on the issue among Conservatives themselves.
Nevertheless, if not a full repeal of the HRA, Theresa May’s pledge to “rip up” inconvenient human rights laws is most likely to amount to an attempt to derogate from the ECHR. Derogation is a temporary setting aside of certain human rights obligations. Governments can take measures that would otherwise breach human rights in times of war or “public emergency threatening the life of the nation.” To be lawful, the measures taken must be necessary, proportionate, and cannot violate other international obligations. Only certain rights can be derogated from; for example, the government can never set aside the rights to life, or freedom from torture or slavery. In the past the UK has derogated from the right to liberty during the conflict in Northern Ireland, and following the 9/11 terror attacks. Before the election was called, Michael Fallon had announced further plans to derogate in times of armed conflict in order to shield the MOD from legal claims, often brought by its own forces.
As many remarked following the Prime Minister’s comments, there is no inevitable conflict in terms of legality between counter-terrorism measures and the UK’s human rights framework as it currently stands. The majority of the rights guaranteed by the HRA are qualified as opposed to absolute rights, which means they can be restricted in certain circumstances and weighed against competing priorities such as national security or the rights of others, without this inevitably entailing a breach. May’s position of counter-terrorism in conflict with human rights was perhaps politically expedient, but ultimately a false dilemma. It remains to be seen what powers the government could usefully claim for itself that it does not already have that would truly require derogation or other changes to the UK’s human rights framework.
The potential threats to human rights of a minority Conservative government, supported by the DUP, may yet come from other quarters. We do not currently know what policy concessions the DUP has requested from the Conservatives in return for entering into a confidence and supply agreement. While some have suggested that the DUP’s social agenda will not form part of its demands, others are not reassured, and point to the party’s opposition to abortion and gay marriage, worried that this agenda, which already restricts the rights to bodily autonomy, to marry, and freedom from discrimination of many people in Northern Ireland, may be given further succour in mainland Britain.
Second, legislative deadlock in Parliament may lead to an increased reliance by government on secondary legislation, as immigration barrister Colin Yeo reflects. The Constitution Committee noted in 2016 that “parliamentary scrutiny of delegated [or secondary] legislation is less intensive and arguably less effective than primary legislation.”
Secondary legislation is often used to introduce measures that have an impact on people’s human rights. Take the ‘minimum income’ rule that requires a person to earn £18 600 per year to sponsor their foreign spouse to live with them in the UK; measures allowing for children’s nationality and country of birth to be collected by schools and secretly handed to the Home Office for immigration enforcement purposes; and, the now-infamous ‘bedroom tax’, for example. All of these policies were introduced by secondary legislation, and engage the rights to respect for private and family life and to be free from discrimination.
Last, we must look at the potential implications for human rights if the Good Friday Agreement were to break down, with a loss of neutrality in Westminster leading to a resurgence in the kind of violence that was stymied by the conclusion of the peace process. In addition to the widespread violence committed by both sides, including attacks against civilians, the UK government made lawful derogations between 1971 and 1975 in order to exercise broad extrajudicial powers of arrest and internment. But it also committed grave breaches. In 1978, the European Commission ruled that the use of sleep deprivation, withdrawal of food and fluid, hooding, wall standing, and sensory deprivation by the British Army and Royal Ulster Constabulary violated the right of the fourteen men who suffered it to be free from inhuman and degrading treatment. Decades later, those techniques were revived through the US’s torture programme, ushered in under the auspices of the War on Terror.
In the UK, several governments - not all of them Conservative - have derided human rights laws as tools that protect those it has decided are undeserving, often by virtue of their behaviour (criminals, including terrorists) or citizenship status (migrants). Yet human rights laws are effective primarily because of their universality; because they do not grant the government the latitude to decide who falls within their scope. It is one thing to acknowledge that liberal institutions can and should be criticised and that other formations of right and justice are possible. Furthermore, it is acceptable to state that human rights are far from “the most we can hope for.” However, as attacks on them, both direct and oblique, continue in the wake of the election, serious reflection is long overdue on how a legal framework established in the shadow of the Holocaust became a political football. And perhaps, as we look at the state violence perpetrated in the name of counter-terrorism, austerity, and immigration controls, we might begin to respond to the question that David Foster Wallace was innocuously “just asking”.
Gracie Mae Bradley is a human rights worker and writer. She is involved in a number of grassroots migration justice campaigns and coordinates Against Borders for Children campaign.