25 years on is Westminster backtracking on human rights in Northern Ireland?

By: Stuart Wallace

When the Good Friday Agreement was signed on 10 April 1998 it brought with it a profound sense of hope for people in both the Republic and Northern Ireland. While there wasn’t a sense that the conflict was at an end, there was at last a clear pathway to an end of the conflict. A foundation stone of this path to resolution was the commitment from the British Government to incorporate the European Convention on Human Rights (ECHR) into Northern Ireland law. The significance of this development, particularly to the republican groups in Northern Ireland, cannot be overstated. To fully understand its importance, we must look back at some of the history of human rights protection in Northern Ireland, before taking stock of where we are today.

The protection of Convention rights in Northern Ireland has been at odds with the protection of human rights in the rest of the UK almost from the entry into force of the ECHR. The UK had derogations from the ECHR (exceptions to human rights protections to respond to emergency situations) in place dating from 1954 and running through to the 1980s and beyond. To this day it holds the record for the longest standing suspension of human rights protection in any Council of Europe state. The suspension and dilution of human rights protections in Northern Ireland was the norm for decades. 

The right to liberty and security was routinely compromised in Northern Ireland through actions like Operation Demetrius in 1971, where hundreds of people were arrested and detained for long periods of time without trial because of their suspected involvement with the Irish Republican Army. 

Detainees were also subjected to inhuman and degrading treatment: hooded, shackled, subjected to stress positions, sleep deprivation and other horrors, as part of a state sanctioned counter-terrorism strategy, which the British government knew would inflict lasting harm on the victims

The armed forces deployed in Northern Ireland were also responsible for a series of arbitrary killings and massacres from Bloody Sunday to the Ballymurphy massacre among others. These are just some of the many human rights violations experienced by the people in Northern Ireland during the twentieth century. 

It’s worth emphasising that the state was not a neutral party in this sectarian conflict. British forces deployed in Northern Ireland over time became mired in the sectarian conflict along with the other parties, in a vindictive cycle of violence and reprisals. As the neutrality of the state was compromised, the victims, particularly on the republican side, increasingly looked elsewhere for remedies. The European Convention on Human Rights and its accompanying judicial architecture served as an outlet for their claims. Cases were taken against the UK for their actions in Northern Ireland challenging everything from their use of inhuman and degrading treatment to inadequate investigations of killings to their implementation of emergency powers. The cases met with varying degrees of success, but they gave victims an overarching sense that they would at least have an impartial hearing of their grievances at Strasbourg.

This is why the commitment to incorporate the protections of the Convention in the domestic law of Northern Ireland was so important. It signalled a new, genuine commitment to human rights protection in an area devoid of such protection for so long. It would mean the long trek to Strasbourg in search of justice would be much shorter and much swifter. There was hope that it would create more capacity for independent scrutiny of the government’s activities. 

Now, 25 years on, while the protection of human rights in Northern Ireland has improved immeasurably from the dark days of the 1970s and 80s, the ghosts of violations past are far from being put to rest. 

The teams established to investigate deaths in which state involvement was alleged have struggled to handle the volume and complexity of the cases, with thousands remaining unresolved and serious questions being raised over the independence of the parties investigating.  

Among these cases, the murder of Pat Finucane, a prominent human rights lawyer in Northern Ireland, stands out. There is evidence that British security forces colluded with paramilitaries in Northern Ireland in the commission of this crime. The European Court of Human Rights determined that the UK had not conducted an effective investigation into his death 20 years ago and more recently the UK Supreme Court determined that attempts to investigate since had also been inadequate. The Westminster government continues to drag its heels on establishing a public inquiry into the case, despite it being the realistic solution at this point. 

The British government also appears to be engaged in a concerted effort to shut down legal avenues of redress for victims of the conflict. The UK government is forging ahead with the Northern Ireland Troubles (Legacy and Reconciliation) Bill,which aims to limit “criminal investigations, legal proceedings, inquests and police complaints” related to the conflict in Northern Ireland. The bill would offer immunity from prosecution for a significant cohort of service personnel suspected of having engaged in criminal activity in Northern Ireland. This bill clearly aims to draw a line under these enduring issues and the list of opponents of the bill is long. Anyone familiar with Northern Irish politics will know it is rare for political parties across the sectarian divide to agree on anything and yet the Westminster government has succeeded in uniting all major political parties in Northern Ireland in opposition to this Bill.

The Westminster government is also moving to scrap the Human Rights Act 1998 and replace it with a “Bill of Rights”. The “Bill of Rights” aims to dilute the protections provided by the original incorporation of the ECHR in Northern Ireland law, which Aoife O’ Donoghue and Colin Murray convincingly argue is inconsistent with the Good Friday Agreement. The UK government also appears to be toying with the idea of withdrawing from the European Convention on Human Rights entirely which, if implemented, would clearly violate the British government’s commitment in the Good Friday Agreement. 

The commitment to incorporate the European Convention on Human Rights into UK law was a profound moment in the constitutional history of the state. The impact it had in terms of normalising the environment in Northern Ireland, in building trust and creating a sense that the British government could perhaps return to a more neutral position in the region, cannot be underestimated. Yet recent events seem to take these advances for granted. There seems to be very limited appreciation of how the Troubles Bill, the Bill of Rights and the mooted withdrawal from the European Convention on Human Rights will impact the hard-won peace settlement in Northern Ireland. As we approach the 25thanniversary, we should rightly celebrate the momentous achievements of the Good Friday Agreement and the transformative effect it has had on Northern Irish society. All parties should recognise the role that incorporation of human rights protections has played in this process. The Westminster government, for its part, must not dig up the soil in which these fragile seeds of peace have grown.

Stuart Wallace.

Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.

This blog is the third of five written for the Constitution Society to mark the 25th anniversary of the Belfast/Good Friday Agreement. 

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.