Politics and the law are inseparably connected in the British government’s assertion of national sovereignty against European regulation and courts during the Brexit saga, and beyond it in their resistance to transnational rights jurisprudence. Their interplay is readily visible in the Bill of Rights legislation on how UK courts should interpret the European Convention on Human Rights (ECHR). The Irish Government has joined prominent Northern Ireland legal groups in criticising how the Bill would erode rights established in the 1998 Belfast Agreement.
The European convention’s human rights regime is quite distinct from that of the European Union, being established before it and with full participation and indeed sponsorship by the UK through the Council of Europe after the second World War. That regime was fully acknowledged and incorporated in the 1998 agreement and given domestic effect in UK law by the Human Rights Act the same year. The new Bill of Rights would replace that act and make it more difficult to invoke the convention by narrowing legal processes and interpretations and strengthening the government’s executive power.
Its Conservative sponsors explicitly attribute the Human Rights Act to the Labour government of the time, thereby reinforcing their current political partisanship in dealing with Northern Ireland. That partisanship is also seen in the proposed amendments to the Northern Ireland protocol announced by foreign secretary Liz Truss. They are geared to please the Democratic Unionist Party and the hard-Brexit European Research Group as prime minister Boris Johnson struggles to stay in power following scandals, political setbacks and now two byelection defeats. A similar instinct seeks to restrict European Court of Human Rights’ involvement in UK law after it blocked the enforced flight of asylum seekers to Rwanda.
The ECHR regime has been so effective in protecting and extending rights that it has been incorporated in the EU’s legal framework and those of its member states. That reinforces its relevance for rights in Northern Ireland and justifies the concerns expressed about the potential effects of the latest proposed UK legal changes there. Critics say they would make it more difficult to obtain remedies for breaches of the Convention in the courts as well as restricting access to witnesses and documents in cases involving shootings and inquests, especially those by security forces.
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Conservative Party critics of these legal changes hope they can be delayed or amended as they go through Westminster over the next year. By then, Johnson may or may not be still in power. Any successor will have to repair the substantial damage to the UK’s international reputation brought about by his government’s wilful and opportunistic mixing of law and politics.