The Good Friday Agreement and the European Convention on Human Rights

29 August 2023 by anuragdeb

Introduction

On 11 August, a piece from Professor Richard Ekins KC (Hon) set out a case for the UK denouncing the European Convention on Human Rights (ECHR) and leaving the treaty system altogether. One of the main arguments in favour of this is that it would ‘restore Parliament’s freedom, on behalf of the British people, to decide what our laws should be’. This marks one of the more recent such calls, amid a growing chorus of Ministers in the UK Government and Conservative Party MPs to leave the ECHR. Also, it should be noted that we have been here before. The constitutional aspects of such a move aside, there are particular reasons why it would impact Northern Ireland. While Northern Ireland does not feature in Professor Ekins’ 11 August piece, he has previously written about the interaction between the ECHR and the Good Friday Agreement 1998 (GFA), which underpins the modern devolution settlement in Northern Ireland and which brought an end to a brutal and deadly conflict. This interaction is the subject of this post.

The content of the GFA

The ECHR features prominently in Strand One and the Rights Safeguards and Equality of Opportunity (RSEO) chapter of the GFA.

Strand One, which concerns the devolved institutions in Northern Ireland, provides for safeguards for community participation in paragraph 5. Among these, at 5(b):

the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission

At 5(c):

arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland

Paragraph 26(a) of Strand One further subjects the Northern Ireland Assembly’s ability to pass legislation to ‘the ECHR and any Bill of Rights for Northern Ireland supplementing it which, if the courts found to be breached, would render the relevant legislation null and void’.

In the RSEO, paragraph 2 provides:

The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.

Paragraph 4 provides:

The new Northern Ireland Human Rights Commission (see paragraph 5 below) will be invited to consult and to advise on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland.

These are only some of the ways in which the ECHR is woven into the fabric of the GFA and major institutions envisioned by it. Incidentally, a provision sometimes overlooked in this debate is the following obligation on the Irish Government found in paragraph 9 of the RSEO:

The Irish Government will also take steps to further strengthen the protection of human rights in its jurisdiction. The Government will, taking account of the work of the All-Party Oireachtas Committee on the Constitution and the Report of the Constitution Review Group, bring forward measures to strengthen and underpin the constitutional protection of human rights. These proposals will draw on the European Convention on Human Rights and other international legal instruments in the field of human rights and the question of the incorporation of the ECHR will be further examined in this context. The measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland.

This obligation was used by then Irish Justice Minister John O’Donoghue TD as the backdrop to move what would become the European Convention on Human Rights Act 2003 in Dáil Éireann.

Discussion

In a 2022 paper, Prof Ekins and John Larkin KC (the former Attorney General for Northern Ireland) made the following claim about paragraph 2 of the RSEO chapter:

The obligation to ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights’ was discharged fully by the enactment of sections 6 and 24 of the Northern Ireland Act 1998.

This is, at the very least, an interesting interpretation of the relevant obligation for a number of reasons.

First, let us remember that the obligation under paragraph 2 required ‘direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’. Second, sections 6 and 24 of the Northern Ireland Act set out, respectively, restrictions on the Assembly’s legislative competence (Assembly Acts must comply with the ECHR) and the ability of devolved Ministers to act (Ministers must act compatibly with the ECHR). If section 6 is breached, a court may strike down the errant legislation. If section 24 is breached, a court may quash a Minister’s decision, prohibit or injunct a Minister from acting in an ECHR-non-compliant manner, declare that a Minister acted unlawfully or mandate that a Minister act in a way which is ECHR compliant. Readers who are familiar with judicial review will recognise the orders I’ve listed. But there are breaches of the ECHR which cannot be covered by remedies in judicial review, especially when sections 6 and 24 do not cover authorities such as the police and prisons, matters such as social services and healthcare facilities, where ECHR breaches are much more frequent than the corridors of power at Stormont. Moreover, important questions arise as to the utility of judicial review remedies when the breach of certain ECHR rights may require investigatory mechanisms as the remedy – something which cannot conceivably be obtained under the Northern Ireland Act (of course, these requirements were developed by the European Court as part of its case law, rather than existing explicitly within text of the ECHR – something which Prof Ekins considers a powerful reason for leaving the ECHR in the first place). Third, paragraph 2 does not make a distinction between devolved authorities and non-devolved (UK) authorities, while sections 6 and 24 of the Northern Ireland Act apply only to devolved authorities. In other words, the UK Government is immune from liability under section 24, while Acts of the UK Parliament, being the enactments of a sovereign legislature, are immune from being struck down in any event (whether under section 6 or otherwise).

More fundamentally, however, are the myriad other ways in which the ECHR is woven into the devolution settlement envisaged by the GFA. The treaty itself – and not simply some abstract reference to it or the standards it sets – is a part of the safeguards guaranteed to all parts of the community in Northern Ireland on the basis of ‘mutual respect’. Mutual respect between rival political and community traditions and a total rejection of paramilitarism are preconditions for entry into the devolved institutions, but it has also become something of a shibboleth more broadly in Northern Ireland politics. At her resignation speech, former First Minister Arlene Foster (now Baroness Foster of Aghadrumsee) called for respecting different identities: a far cry from her infamous remark when asked about Sinn Féin’s demands for an Irish Language Act only 4 years earlier: ‘if you feed a crocodile it will keep coming back and looking for more’ (a remark for which she subsequently expressed regret). At the height of the Covid-19 pandemic in 2020, an interview jointly given by Baroness Foster and her then colleague, Deputy First Minister Michelle O’Neill MLA, anchored their working relationship in mutual respect. Accompanying pictures of Foster and O’Neill interacting with one another during meetings and greeting each other with smiles recalled similar pictures of their predecessors in office – the late Ian Paisley, Baron Bannside who once denounced the Pope as ‘the Antichrist’ in the European Parliament and the late Martin McGuinness who was once second in command of the Provisional IRA’s Derry Brigade – affectionately dubbed the ‘Chuckle Brothers’ by the press in the later years of their terms as First and Deputy First Ministers respectively. The ECHR is a part of this mutual respect – woven inextricably with the framework of rights and safeguards which the GFA envisioned for Northern Ireland. It is neither detachable from the text of the GFA, and nor is it replicable by some statutory simulacrum enacted either at Westminster or Stormont. The RSEO specifically and the GFA more broadly are not inspired by the ECHR – they are fundamentally based on it. Any claim that the ECHR is detachable from the GFA without threatening the latter is just as conceptually and practically difficult as it was to satisfy the Brexit Impossibility Triangle (which, in the end, could not be satisfied).

Critics of this position point to the lack of explicit text in the GFA requiring the UK to remain within the ECHR. It is debatable whether the presence of such text would ever satisfy critics – after all, the ECHR and the GFA are both international agreements and if critics of one seek its denouncement, why would these same critics not seek the same of the other? But this sort of formalist criticism is related to another (and for this post, final) point.  

In his 11 August piece, Prof Ekins concludes:

[…] leaving the ECHR would restore Parliament’s freedom, on behalf of the British people, to decide what our laws should be. Crucially, this is not a party-political matter, even if it looks set to become one. Bringing the Strasbourg Court’s jurisdiction over the UK to an end would strengthen parliamentary democracy, regardless of which party forms a government and enjoys a majority.

The reference to parliamentary democracy makes the call to leave the ECHR a democratic one. But it has been a quarter of a century since Westminster was the sole representative legislature within the UK. In 2023, Northern Ireland enacted the first dedicated statute anywhere in the UK or Ireland to protect access to abortion services for users and employees. In 2022, the Welsh Counsel General spoke in the Senedd about options to further incorporate UN human rights treaties into Welsh law. In 2021, the Scottish Parliament passed a Bill to incorporate the UN Convention on the Rights of the Child into Scots law (a Bill subsequently declared to be outwith the competence of the Scottish Parliament in large parts by the UK Supreme Court). Meanwhile, among Westminster’s latest contributions to the statute book is the Illegal Migration Act 2023 – legislation which has been roundly condemned as ‘senselessly cruel’ by UK NGOs, elicited concern from the UN and been denied legislative consent from both the Scottish Parliament and the Senedd Cymru (the Northern Ireland Assembly being unable to function, is thus unable to consider legislative consent). One is left wondering what further damage to the legal provisions around rights in the UK will follow the ‘strengthening’ of Westminster’s hand.

Indeed, what should worry the cheerleaders of Westminster and Whitehall is the plummeting public trust in those institutions. Research from Professor Katy Hayward and Ben Rosher shows that in 2022, only 2% of respondents in Northern Ireland completely supported the UK Government, and that even unionists’ support was at 38%. Perhaps more tellingly, a plurality of unionists believed that Irish reunification was more likely because of Brexit – pointing to another international legal system from which Northern Ireland was taken out against its will and on terms which have since seen it lurch from political crisis to political crisis; all of it completely over the heads of its people. Democratic strengthening, indeed.

The GFA ended three decades of unimaginable violence and death. It promised an era of peace and a future free of sectarianism. It did so not simply by pointing to the ECHR, but by wholeheartedly embracing it. It is true that the famed ‘constructive ambiguity’ in the GFA has, over time, led to a mythologisation of its provisions, requirements and scope. The shibboleth lies only in whether one affirms or denies its foundational legitimacy, without necessarily looking at or actively considering the detail of its provisions. Famously (or infamously, depending on one’s perspective), Andrew Brigden MP believed that, in the context of the GFA, he was entitled to an Irish passport despite not being an Irish citizen. The GFA’s existence as ‘everything to everyone’ opens a space for formalist interpretations of the kind advanced by Prof Ekins and Mr Larkin. But the Northern Ireland peace process, and the mutual respect at its core, are anything but formalist.

The decade which preceded the GFA was marked by precarious ceasefires, sputtering negotiations and unabated violence. The final Agreement, endorsed by huge majorities across the island of Ireland, foregrounded its promise of rights and respect in the ECHR. This was not something into which the parties to the Agreement, especially the UK and Irish Governments, sleepwalked. Changes to the composition in both governments during the negotiations did not result in any diminution in either’s resolve to finally bring an end to the bloodshed and violence of the past. This resolve manifested in both governments’ willingness to listen – both to the wide spectrum of parties which took part in the negotiations, as well as the people across the island of Ireland. It is perhaps a sign of the times that the UK Government’s willingness to listen is itself now debatable.