The Queen’s Speech and Human Rights

May 27, 2022

The Queen’s Speech and Human Rights

The Queen’s Speech opening a new session of Parliament was delivered on the 10 May. It presented a lengthy list of legislative proposals that the government intends to take forward in this next session of Parliament. Unfortunately, the speech contained some very unwelcome announcements from a human rights perspective. We have picked out a few of the main issues below that we think are of most interest for Northern Ireland.

Bill of  Rights Wrongs

The speech confirmed government plans to introduce a UK Bill of Rights as part of its reforms of the Human Rights Act.

“My Government will ensure the constitution is defended. My Ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.”

But as we have pointed out in previous posts and in our submission to the government’s own consultation on reform of the Human Rights Act, the proposals are not worthy of the title Bill of Rights, as they seek to diminish existing human rights standards and fail to advance additional rights to fill gaps in protections.

For instance, the government’s proposals seek to limit our current access to European Convention of Human Rights (ECHR) protections by diluting the way in which Section 2 of the HRA obliges courts in the UK to take account of judgments from the European Court of Human Rights (ECtHR). UK courts are not obliged to blindly follow judgments from the ECtHR and indeed they have the scope to go beyond the Strasbourg court’s rulings. But this obligation has nonetheless created a useful bedrock of standards around the interpretation of Convention rights for local courts, which in turn has positively influenced the realisation of Convention rights on the ground by ensuring a degree of consistency with what the Strasbourg court has ruled. To the extent that the Supreme Court itself has previously declared that it would only depart from the ECtHR jurisprudence in ‘highly unusual circumstances’[1].

Remember that prior to the introduction of the HRA in 2000 those who had their Convention rights violated could only seek redress via lengthy and costly appeal to the Strasbourg court directly. Removal or weakening of this direct linkage with ECtHR judgments could well lead to inconsistency and uncertainty in the application or interpretation of Convention rights in domestic courts and further litigation at Strasbourg. Additionally on this point, the government have been clear that their concern is not just about UK courts following what they call ‘the incremental expansion of rights driven by the Strasbourg Court’[2] but the danger of domestic courts also ignoring the limitations of existing ECtHR judgements and ‘running ahead of the Strasbourg jurisprudence’.[3] So, on one hand the Government reject the linkage of UK and Strasbourg jurisprudence and seek to ‘reduce our reliance on Strasbourg case law’, but equally at the same time they don’t want the UK courts to act independently unless in a manner that gives a restrictive interpretation of rights.

In this same vein of restricting access to rights the government are also proposing to introduce a permission stage that would make it much more difficult for individuals to access remedies for breaches of Convention rights in local courts. Proposals suggest that claimants will have to prove that they have suffered ‘significant disadvantage’ before being able to progress with legal proceedings.  A change that will likely create further barriers in accessing the Convention protections and negatively limit their use.

There are also plans to erode the positive obligations placed on public authorities to be pro-active in their duties to protect people’s rights under the Act. This duty has had monumental impacts in protecting members of the public from abuse of power and has been a significant support to vulnerable individuals in particular.

This is just part of the long list of suggested changes that cumulatively will alter the way in which we access and experience Convention rights if these proposals proceed. From a devolved perspective there is little evidence of the government considering how much at odds this set of reforms is with the devolution powers across the UK. In Northern Ireland we believe that the proposed reforms are a violation of the Rights, Safeguards and Equality of Opportunity section of the Belfast/Good Friday Agreement which committed the UK Government to creating access to the ECHR domestically. The proposals weaken our access and experience of those rights as understood at the time of signing the Agreement and experienced since. By doing that they also undermine the basis of a future Northern Ireland Bill of Rights which was to have the Convention rights as its baseline and be expanded upon with other international standards. Standards that should cover current gaps in protection like the social and economic rights inequalities that have become all too obvious in recent years during the COVID-19 pandemic and the current cost of living crisis. But the government have set their stall clearly against that type of proposal as well in these reforms. Their direction of travel is backwards not forwards. Further reason why these proposals represent a Bill of Wrongs not Rights.

Brexit Freedoms Bill 

The Brexit Freedoms Bill will also be taken forward in this next parliamentary period.

“My Government will continue to seize the opportunities of the United Kingdom’s departure from the European Union, to support economic growth. Regulations on businesses will be repealed and reformed. A bill will enable law inherited from the European Union to be more easily amended.”

The Brexit Freedoms Bill will seek to end the supremacy of retained EU law (REUL) within the UK and allow the government to replace these standards with their own regulations. The government has said that they have identified over 1,400 pieces of EU-derived law that were transferred into UK law as a bridging measure, and they now want the flexibility to move away from that legislation if necessary. The new Bill would create powers to allow retained EU law to be amended, repealed or replaced by other legislation. It would create powers to do so without having to use primary legislation and in doing so avoid full parliamentary scrutiny. Which is ironic given that part of their rationale for removing much of REUL is that it ‘became law without going through full democratic scrutiny in the UK Parliament.’

From a rights perspective the big concern with this proposed legislation is that it could be the next step in the deregulation agenda of the UK Government, whereby standards and protections that currently exist under REUL are further eroded and removed. Given that this Bill will introduce powers to remove these regulations via mechanisms that require less scrutiny and the sheer volume of law in question, it may be impossible to properly monitor and evaluate any risk to rights.

In a related concern, Article 2.1 of the Ireland/Northern Ireland Protocol commits the UK government to the non-diminution of rights set out in the Rights, Safeguards and Equality of Opportunity section of the Belfast/Good Friday Agreement. It is likely that parts of REUL that the government may wish to remove or reform will intersect with the rights that the article 2.1 powers seek to defend and retain in Northern Ireland. Yet the government have shown no evidence that they are alive to those risks despite their intention that these powers would apply across the UK.

Reform of the Ireland/Northern Ireland Protocol

The only reference to the anticipated announcement of UK changes to their operation of the Ireland/Northern Ireland Protocol was this section:

“As we have seen following the elections in Northern Ireland, the problems caused by the Protocol continue to stand in the way of an Executive being formed. In the interests of all communities of Northern Ireland, the Protocol needs to change. We urge our partners in the EU to work with us, with new imagination and flexibility, to deliver that. We will continue to talk with the EU but we will not let that stand in the way of protecting peace and stability in Northern Ireland. As any responsible government would, we will take the steps necessary to protect all dimensions of the Belfast (Good Friday) Agreement and meet our obligations under the New Decade New Approach Deal to protect Northern Ireland’s place in the UK internal market.”

But on the 17 May the UK Foreign Secretary Liz Truss laid out plans to introduce Westminster legislation to change elements of how the Protocol was given effect in UK law. The suggested changes would move away from key elements of how trading relationships between Great Britain and Northern Ireland are currently dealt with under Articles 5-10 of the Protocol that allow EU Customs Union rules to be applied in Northern Ireland.

While the legislation has not yet been introduced a key concern is that this unilateral move by the UK would break an existing international agreement in the form of the EU/UK Withdrawal Agreement and in turn be at odds with the rule of law. It would also require changes to the domestic implementing legislation for that deal the European Union (Withdrawal Agreement) Act 2020. The proposals as they currently stand do not on face value seem to interfere with the Article 2.1 powers in the Protocol that deal with human rights. However, a concern for many would be that these actions may well only be the start of the UK interfering in undermining core elements of the Protocol. While the Article 2.1 powers may well currently be deemed ‘uncontroversial’, there is concern that this attitude may change if those powers begin to prevent the UK government from implementing any of the many reforms they have been progressing in this post-Brexit environment. This is not unlikely given the range of proposals and legislation where we know there is already potential overlap or violation of the Article 2.1 powers – including that Nationality and Borders Act, Elections Act, and forthcoming Brexit Freedoms Bill.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Despite extensive opposition to such proposals the UK government announced its plans in the Queen’s speech to proceed with sweeping changes to how Northern Ireland legacy issues are dealt with.

“My Government will prioritise support for the Belfast (Good Friday) Agreement and its institutions, including through legislation to address the legacy of the past.”

The Northern Ireland Troubles (Legacy and Reconciliation) Bill was introduced to Parliament in the last week. The Bill proposes immunity from prosecution in return for co-operation with an information recovery body. The creation of the Independent Commission for Reconciliation and Information Recovery (ICRIR) headed by a judicial figure. An ICRIR panel would make decisions on awarding immunity from prosecution, which cannot be revoked once granted.

The proposals have been met with opposition from all parties and community and voluntary groups in Northern Ireland involved in legacy and reconciliation work. The proposals break with the existing Stormont House proposals which were agreed between UK and Irish governments and had the support of the majority of Northern Ireland parties and victim groups. A clear concern from a rights perspective as articulated by our colleagues CAJ is that the proposals will be in direct violation of ECHR Art 2 & 3 requirements to carry out effective investigations into violations of the right to life and prohibition of torture.  Given the trajectory that the UK government is following in relation to its HRA reforms, it seems likely that it anticipates the new legacy legislation will exist in a post HRA environment where those positive obligations on public authorities are severely diminished or even removed.

Cumulatively the proposals above represent an ongoing regressive trend by this government to erode and undermine human rights standards and protections. For Northern Ireland the reforms to the HRA, the continued failure to have regard to the non-diminution provisions of the NI protocol and legacy proposals are clearly challenges that need to be met head on given their centrality to our wider peace process.

Some positives

The broader picture for rights contained within the Queens speech and subsequent revelations is quite negative and clearly much work lies ahead. However, there were a few positive human rights developments mentioned in the Queen’s speech that relate directly to Northern Ireland and should be mentioned.

The speech committed the UK government to introducing the Identity and Language (Northern Ireland) Bill which takes forward the New Decade, New Approach commitment to further enhance protections for the Irish Language and Ulster Scots in Northern Ireland. The draft legislation has now been introduced to Parliament.

The Government have also introduced the Abortion (Northern Ireland) Regulations 2022  to ensure the commissioning of abortion services in Northern Ireland should the NI Executive or relevant Ministers fail to act to commission such services. In 2019 Westminster legislation was passed to make abortion services legal in Northern Ireland but the Executive had failed to allow abortion services to be commissioned. These new regulations remove any barriers to the commissioning of those services and allows the Secretary of State to act to commission the services should the Minister of Health fail to do so.

Further details on the content and proposals contained in the Queen’s speech can be found here.

[1] AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC

[2] Human Rights Act Reform: A Modern Bill Of Rights. A consultation to reform the Human Rights Act 1998, Pt 197, Pg 59, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040409/human-rights-reform-consultation.pdf

[3] Ibid, Pt 195