Human rights in NI have stalled – while their foundation is under question

Human rights in Northern Ireland have seen little progress in the past year.

The NI Human Rights Commission (NIHRC) today published its first annual report under a new commissioner who finds that one of her first major tasks is the delivery of list of concerns about local human rights. Alyson Kilpatrick came into post in September, replacing Les Allamby, who held the role for seven years.

The NIHRC report traditionally operates a traffic-light system to appraise how rights are upheld or protected, be that by Westminster, Stormont, or any other relevant agency.

For any given issue, a green light means challenges have been met with a firm response, amber means work is required but the current situation “is not at a level that constitutes an ongoing violation or abuse of human rights”. Red means there is such an ongoing violation, and immediate action is necessary.

Last year’s report saw one green light. This year’s has none.

A total of 103 policy areas, under 14 different themes, were examined in the 2021 statement, leading to 86 amber lights and 16 red.

The new commissioner said the number of areas that need improvement has increased in the past 12 months and “include the many grave human rights consequences of poverty; a failure to protect vulnerable persons in care; a failure to commission reproductive health services; child sexual exploitation; and conflict related investigations.”

Covid-19 and more

As with everything else, the pandemic plays a huge role in this report.

The previous commissioner Mr Allamby noted that Covid restrictions “imposes the most far-reaching restrictions on our freedoms I’ve known in my lifetime” and were perhaps more onerous than those in wartime, but added that they were valid moves made to protect life.

Ms Kilpatrick strikes a similar tone in the new annual report, saying that “unprecedented” measures were justified to protect public health, but that they must be approached with caution, continually scrutinised and that the “extraordinary powers” now wielded by government must not become the norm.

She said further that Covid’s impact is much wider than the imposition of restrictions, and that it has cut across rights issues more generally. Its negative impacts have fallen more heavily on already-vulnerable people, while “many who were not vulnerable or marginalised have become so”.

But the report is not all about Covid, far from it. It is designed to be an appraisal of all significant rights concerns in Northern Ireland and, to that end, the lack of progress (and the number of red lights compared to the number of green) is worrying.

Following the publication’s launch, Ms Kilpatrick said: “The Commission has a number of concerns. By way of example, we are concerned at the absence of an anti-poverty strategy given the real deprivation faced by many. We are concerned that there needs to be a timely public inquiry into the handling of the Covid-19 pandemic. The Commission has recommended a public inquiry into the handling of Covid-19 within the UK and within NI in particular.

““We are concerned at the proposals for dealing with ‘legacy’ investigations and will consider carefully the outcome of the consultation process and anticipated draft legislation. We will do so within a framework of objective legal standards, which honour the rule of law. Those standards provide that truth, justice and the rule of law are, together, the very bases of our values. They are the foundation of democracy itself. We do not believe one must be sacrificed for the benefit of the other.

“The Commission is strongly of the view that if the law does not protect human rights, then the rule of law is stripped of its very principle. The Commission will expect the proposals to respect both the letter of the law and the wider rule of law.”

Human Rights Act

Protecting people’s rights is plainly vital.

One area highlighted in this year’s report is not about a specific right, per se, but about the entire framework on which Northern Ireland (and the wider UK’s) human rights are maintained.

The European Convention on Human Rights was drawn up after the second World War in a bid to provide a floor for individuals’ rights in Europe. In 1998, it was incorporated into UK law thanks to the Human Rights Act (HRA). This meant people who felt their rights were being infringed could fight their case in British courts, rather than needing to appeal to Strasbourg.

This year, the HRA is subject to an independent review. Its call for evidence and the ultimate preparation of the final report has already taken. The report was delivered to the Lord Chancellor in October and is currently being considered by Westminster. Both the report and the government’s response are set to be published “in due course”.

The context to this is a government in Westminster which has been, at best, muted in its support for the HRA. Many Conservative MPs are openly hostile to the HRA, and have been for years. Its future is far from guaranteed.

New Justice Minister Dominic Raab has called the act “nonsensical” and said one of his top priorities is to overhaul it.

The future

NIHRC’s annual statement says: “An ongoing review of the Human Rights Act 1998 should consider how to improve protections, not limit them. An essential element in practical protection is the public’s right to challenge breaches by public authorities. Now is the time to strengthen the Act, not strip it of its power. Now is the time to enable greater access to an independent judiciary, not block it.”

Speaking after the launch of the NIHRC annual report, the commissioner said: “The report records progress in some areas, which is welcomed, but that is far outweighed by the lack of progress overall. This comes at a time when the very notion of universal human rights is under challenge.

“The Commission is concerned at recent comments undermining human rights and calls to ‘scrap’ the Human Rights Act 1998. We believe that any diminution in the Act will result in further regression in the realisation of rights that will have a significant adverse impact on citizens. There is an opportunity to strengthen protection through a NI-specific Bill of Rights, but we believe that should be additional to, not a replacement for, the Human Rights Act.

“Our education and awareness-raising work will try to redress the negative rhetoric so we will welcome closer, more structured engagement with those most likely to be affected.”

Any attempt to repeal the Human Rights Act should be met with caution. It delivers protections for individual people, and ensures these protections are accessible.

There is also no point in repealing the Act unless the aim is to weaken existing protections. If a new Bill of Rights is established that offers wider rights to people, but without taking anything away, then it would be entirely compatible with the Human Rights Act. The only conflict that occurs between the Act and any new law is when such a law infringes on pre-existing protections.

It seems likely that the final report from the review into the act will be published in the next year.

Next year’s NIHRC annual statement could be interesting. The Commission could be battling on a whole new front to promote and protect the rights of everyone here in Northern Ireland.