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Any change to the UK’s Human Rights Act risks “fanning the flames” of Northern Ireland’s fragile politics and undermining peace, politicians on both sides of the Irish border have warned, ahead of the publication of an independent review of the legislation.
Headed by Sir Peter Gross, a retired judge, the review into the 1998 act, which has long been attacked by Conservative MPs, is due to report by the end of the year.
The 1998 Good Friday Agreement, which ended decades of sectarian violence in Northern Ireland, contains an important section on human rights which is underpinned by the UK’s Human Rights Act.
Academics, politicians and human rights campaigners fear any attempt to dilute the legislation puts at risk the peace accord and the already fragile post-Brexit political balance in the region.
“To discuss the possibility of doing away with the Act massively undermines the Good Friday Agreement,” said John Finucane, a Sinn Féin MP for Belfast North. His party is part of the Northern Irish power-sharing executive.
Charlie Flanagan, a former foreign and justice minister who now chairs the Irish parliament’s foreign affairs committee, said any changes “would fan the flames of an already fragile political situation” in Northern Ireland. Ireland is a guarantor to the Good Friday Agreement.
The act has been criticised by successive Tory governments and there were promises to repeal it in the 2010 and 2015 Conservative party manifestos. In 2019, Boris Johnson pledged to “update” the act, which incorporated the European Convention on Human Rights into UK law.
Some Tory MPs fear the courts are overreaching their powers and that judges risk being drawn into politics. Ministers have already proposed changes to judicial review — where government decision-making is challenged in court.
The Human Rights Act has long stirred political anger because of the need for UK courts to take into account human rights rulings made by the European Court of Human Rights despite Britain’s departure from the EU.
But it appears that the government will face significant opposition if it wants to amend the act. Many of the submissions made to the review by campaign groups, charities and academics say the act is working well and there is no need for changes.
The UK has already been sharply criticised in Belfast and Dublin over its plans to halt prosecutions of those accused of violent crime during the Troubles, and Finucane said the process had to be seen through the lens of Brexit.
“They don’t want to have human rights legislation with obligations they see as coming from a foreign source,” said Finucane, who has welcomed a new EU probe into his father’s 1989 murder by loyalist paramilitaries.
In a submission, Northern Ireland’s Social Democratic and Labour party (SDLP) feared the review “will become a new battleground for “malign Euroscepticism”.
Launching the review last December, Robert Buckland, UK lord chancellor, said it would focus on whether the 1998 act was operating effectively. Human rights are “deeply rooted in our constitution and the UK has a proud tradition of upholding and promoting them at home and abroad”, he said.
He also told the Human Rights Joint Select Committee in July that the government remained committed to the European Convention on Human Rights and the Good Friday Agreement.
The committee concluded in its July report that there was no case for reform and to “amend the Human Rights Act would be a huge risk, to our constitutional settlement and to the enforcement of our rights”.
Liberty, the campaign group, said in its submissions it was “deeply concerned” that changes would “limit the ability of the courts to provide direct remedies when they find a human rights violation has taken place”.
Amnesty International UK said the act “carefully and precisely” protects individuals’ rights and there is no public support for reform. “It seems, then, that the only drivers for curtailment of the HRA are the Executive at Westminster and a small group of media outlets and influential but opaque think-tanks,” it said.
The Public Law Project, a legal charity, has pointed out that tampering with the act would “give rise to a host of other potential problems including significant issues relating to the devolution settlement”.
Dominic Grieve, former attorney-general, told the Financial Times he was “hopeful that if the government has any sense it will lead to no significant change at all”.
Lord Edward Garnier QC, a former solicitor-general, acknowledged initial concerns but said “by and large [the act has] been more beneficial than not”.
Nevertheless, there is some support for an overhaul. The Metropolitan Police Service and the National Police Chiefs’ Council said in their submissions that “frequent claims” for compensation for human rights breaches were “expensive and resource heavy to deal with”.
Senior barristers at the Society of Conservative Lawyers have also called for the act to be amended, saying it has “involved our judges in the wrong sort of judicial activism” and “encourages overstrained interpretation of statutes”.
The Ministry of Justice said in a statement: “After 20 years of operation, it is right to consider whether the Human Rights Act is still working effectively and we look forward to the independent review’s findings when it reports back later this year.” It said the panel had been engaging closely with interested parties across the UK including in Northern Ireland.