NIHRC Chief Commissioner's Speech at the Law Society for Northern Ireland's event to mark 25 Years of the Human Rights Act in Northern Ireland

Thank you to the Law Society for inviting me to mark the 25th anniversary of the Human Rights Act.
It is a great pleasure.

It is undoubtedly a celebration, but we must not be complacent.
I am old enough to remember, not just the coming into force of the HRA on 2 October 2000, but what it was like without it.
When I was a befuddled and easily intimidated person who was learning to navigate the world and later (hopefully not so much) as a practising lawyer, trying to make the world easier for others to navigate, there was little to rely on.

I'm not suggesting my clients were befuddled or easily intimidated, but the deck had been stacked against them, for one reason or another. The law was missing something - the thing that made their engagement with it relevant and compassionate.

Human rights were largely illusory and theoretical.
The Human Rights Act changed things - it changed everything.
It was a simple, yet profound piece of legislation.

It became mandatory that the UK's public authorities (all of them) complied with the framework of rights that the UK had helped to draft, and had promised to comply with back in the 50s, yet, so often, failed to give practical effect.

The UK was at the forefront of the formation of the Council of Europe and its European Convention on Human Rights and Fundamental Freedoms - one of Europe's greatest achievements. It is actually one of the world's greatest achievements, inspiring many other jurisdictions beyond the Council of Europe.

Then, the UK well understood the importance of international partnership and the mutual enforcement of values across Europe. The UK government recognised the need for practical accountability at home. It welcomed the challenges that that would bring, because it knew the benefits would far outweigh them.

UK lawyers did a superb job by forecasting challenges and providing for them, but also by accepting that not everything could be forecasted, leaving the Convention to evolve to meet societies needs.
That evolution was clearly intended from the outset and built into the framework.

From when the UK first signed up to the Convention, the State were required to make it practical and effective for all within its jurisdiction.
But did not perhaps do that wholeheartedly.

From the 50s onwards, the UK has had a responsibility to set up a system that affords us all our fundamental rights and freedoms. Progressively, more and more commitments were made. More and more failed to be met.

The UK became a member of the European Union, which imported certain additional rights and safeguards into our domestic law. A robust web of protections was formed, but there remained failings in the breadth of rights and in their practical application.

It is a condition of membership of the Council of Europe that a state has ratified the Convention. But, often forgotten, the Convention requires its protection to be practical and effective, for each person in the State's territory. The UK did it by 2000.

The Labour Government's Human Rights Bill was meant to achieve that. Not by creating some new framework but by tying us more firmly and decidedly into the Convention.

To give practical effect to the rights we had already been promised, the Convention had to be incorporated into our national law, to be capable of use against any public authority and made enforceable directly in any court or tribunal.

The UK is no outlier in this - incorporation is now commonplace - if the UK repealed the Human Rights Act so that the Convention was no longer incorporated, it would become the outlier.

It would signal to the Council of Europe that it no longer took seriously the commitments it made to other nations, as well as to its own people. That does our credibility no good.

As mentioned, The HRA was enacted to satisfy the obligations in ECHR Article 1 (that states will secure everyone's rights) and Article 13 of the (the right to an effective remedy).

Those rights are therefore not listed separately within the HRA, because they're said to be met by the existence of the Act.

The HRA achieved its aim of bringing rights home by enabling individuals whose rights have been breached to take a case to a court in the UK, rather than having to go to the ECtHR in Strasbourg.

This introduced a real democratic accountability that we never had before. It made it express, in our national system, that democracy values everyone equally, even when the majority does not - particularly when the majority does not.

It gave every person on the street - citizen and asylum seeker, waged and the unwaged, law enforcer and law breaker, the means to enforce rights, down the road in their local courts and tribunals.

It forced public authorities to think about and record what they were doing - in a structured, intelligent and pragmatic way.

Because it changed things, those, for whom it created accountability, began to turn against it.

I can recall such sentiment gaining a head of steam in the Cameron Government and it has ebbed and flowed ever since.

At the moment, I would categorise it as a distaste for others that makes it more acceptable to limit human rights and fundamental freedoms to the deserving - and then, only our own deserving.

But for these others who are coming to us, the UK would still be a great place.

But for the Convention, the UK authorities could make it great again. But for the human rights act the police could lift all those problematic people, the prison service could put them somewhere and throw away the key, the health service would have an abundance of doctors, nurses, beds and equipment.

Our children would all receive the education they need, when they need it.

So the logic goes. It is false logic, but persuasive all the same, because it suggests a simple solution and it allows us to act out our anger, without being criticised for it.

The allegation is also made that the Convention is being interpreted so as to evolve to include rights not intended or to include people not contemplated when drafted.

No, or very few, Laws are static.

Given its origins, I suggest evolution in rights is exactly what was foreseen by the Convention, and that the inclusion of people regardless of where they started or what they represent, or whether they are part of a new wave of migration, is exactly its purpose.

The signatories to the Convention tell us so themselves - it was intended to:

• guarantee universal and effective recognition and observance of rights;
• greater unity between the members of the Council of Europe, “which will be achieved by the maintenance and further realisation of human rights”;
• reaffirm the profound belief that rights and freedoms are the foundation of justice and peace in the world, which are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights on which they depend;
• And, then, the governments of the Council of Europe countries resolved "to take the first steps for the collective enforcement" of rights

There is also an argument that the Convention and/or HRA are not necessary for us, here in the UK, because we are a more sophisticated common law jurisdiction, that it is way ahead of other European nations in its guarantee of rights and freedoms.

We keep an eye on others but no one needs keep an eye on us.
The UK has done human rights, is suggested.
One could ask - when were all of those commitments 'done' - when was the perfect time and place, when did we realise the Convention goals? When did society stop evolving and creating new challenges for itself?

I certainly don't think it's now.

We have, just by way of example, increasing levels of racist hate crime, violence against women and girls continues to ravage society, people with disabilities are still disadvantaged by policies and practices that are developed for them, without them.

We are increasingly isolated by technology that very few of us understand and even fewer control. While that is the case, we have no business suggesting we are better than others or have surpassed the Convention.

The Convention achieved so much, but it is still young. It needs attention to be able to continue to mature. That's where our energy should go - into application and maturing its development.

When Northern Ireland was searching for its own framework to enable peace, justice and democracy post-conflict, it turned to the Convention.
They were clever - in leaving it open-ended - because it allows for growth and it respects how the principle - that all human beings are born with and retain fundamental rights and freedoms - that is more important, than their technical categorisation.

The rights within the Act, brought into UK law from the Convention, are interwoven into the devolution arrangements in Northern Ireland, Scotland and Wales, where parliaments and assemblies are prevented from passing laws which may be incompatible with Convention rights, as set out in the Human Rights Act.

That was deliberate.

When there was another opportunity to restate the importance of universal human rights, Northern Ireland took it. When the UK left the EU, we resoundingly claimed rights and held out for unique protections through the Windsor Framework.

Our current Government made a manifesto commitment to keep the HRA and the Convention. They have recommitted to human rights and their universal realisation, which is welcomed.

It can be more difficult perhaps, during global crises, but for all the reasons the Convention and then the HRA were the solution then, they remain so now. Let's not just keep them - let's really embrace them in practice.

When the Human Rights Act was brought into force, there was alarm expressed by some that there would be a tsunami of litigation that would render the courts unable to deal with, in inverted commas, ordinary cases.

Despite the empirical evidence to the contrary, it is still argued that the HRA clogs up the domestic system and that cases that go to Strasbourg interfere with democracy at home.

That is not true. Since the HRA came into effect, the number of cases going to the ECtHR from the UK has fallen and is now the lowest by population of all 47 contracting states.

In fact, what has happened is that since the HRA has become embedded in public authority decision making, the number of cases going to Strasbourg has decreased year on year until they are now rare. Moreover, the number of violations found is vanishingly rare, as the ECtHR applies the principle of subsidiarity and recognises parliamentary sovereignty.

In my view, that is because the HRA has improved public authority decision making and has enabled individuals to claim their rights in a practical way, short of court action. The development of jurisprudence under the HRA contributes to the creation of fewer victims and therefore fewer actions.

The promotion of a human rights culture by, for example, organisations such as the Human Rights Commission but also the courts, has prevented many violations happening in the first place.

The state must approach its policy and law-making from the starting point that it has obligations to protect and fulfil human rights, regardless of political expediency, regardless of whether they are likely to get caught out and/or get taken to court and regardless of whether the right thing to do is also the most popular thing to do.

Why, should we not keep our own HRA but abandon the Convention?
Or keep the Convention but get rid of the HRA?

Answer - They don't work without each other. You need them both.
The progress we have enjoyed is highly unlikely to survive alone.
The HRA's success depends upon its interlinking of the Convention and the supervision of the ECtHR. The Convention will fade further and become more remote without the HRA and we will lose our collegiality and shared values. We will not benefit in the same way from the ECtHR's oversight and jurisprudence. It makes no sense but to keep them together.

This interplay can be seen from cases.

One example, not a UK case but one which has had huge repercussions here, is the case of Opuz v Turkey.

Nahide Opuz was abused by her husband for years. He beat and threatened her mother. His violence ultimately resulted in his murder of Nahide's mother. Nahide complained that the police and prosecutors in Turkey failed to take sufficient action to protect them.

It was only after Nahide took her complaint to the European Court of Human Rights that measures were taken to protect her from her then ex-husband.

The European court ruled that, despite knowing about the worsening situation, the Turkish authorities did not take reasonable steps to prevent violence against Nahide and her mother. The investigation into the murder of Nahide's mother was also flawed.

The court found the authorities' actions did not deter the man, and even showed a certain amount of tolerance towards his conduct.

This passive attitude created a climate that encouraged domestic violence in Turkey. For the first time, the court ruled that gender-based violence is a form of discrimination under the European Convention on Human Rights.

This has found its way into many a domestic case under the HRA but also into the policy and practice of the police and prosecutors, saving countless lives.

Our own common law did not, until then, have the same impact. Still more needs to be done as the epidemic of violence rages.

In another case, UK law was found wanting but was improved considerably following a petition to the ECtHR. Jeanette Smith and Graeme Grady were investigated and dismissed from the armed forces because of their sexual orientation.

In 1994, military investigators separately quizzed Jeanette and Graeme after learning that they were gay. Both were asked intimate questions about their relationships and sex lives before decisions were taken to end their careers.

They, together with others, took their complaint to the European Court of Human Rights, having failed in the UK courts.
The Strasbourg court found that the investigations and the decisions taken to discharge them, interfered with their private lives in an unjustified way.

The UK government had claimed that the policy against LGBTQIA people serving in the military was necessary for the morale, fighting power and operational effectiveness of the armed forces.

But the European court did not accept that. Now, we can all enjoy the benefits and recognise the enormous contribution of LGBTQIA people in the military.

Another case: Nadia Eweida worked as a member of check-in staff for British Airways (BA). She wore a small silver cross on a chain around her neck, as a sign of her commitment to her Christian faith.

One day Nadia was sent home and suspended without pay, on the grounds that her cross violated company uniform policy. She complained that she had been punished because of her religion.
However, the UK courts rejected her claims and upheld BA's decision to suspend her.

The European court ruled that the cross had been discreet and did not detract from her professional appearance. In those circumstances, there was no evidence that it encroached on the rights of others. The UK courts had given too much weight to BA's desire to project a certain corporate image and not enough weight to the right to manifest religion.
Following that judgment, the UK government took steps to educate employers and courts on the importance of religious freedom.

We have seen the families of Hillsborough victims relying on the Convention's application in the domestic courts and victims here in Northern Ireland relying on it to establish investigations into murders.
We have seen the military relying on it to ensure they are properly equipped when deployed and to obtain independent investigations into neglect and mistreatment of them on duty.

It has resulted in women in Northern Ireland being able to access reproductive health care and to access clinics without being abused. It has also protected asylum seekers in Northern Ireland from being treated as less human than others, ensured trafficked women can ask for help and prohibits detention without judicial oversight.

I saw the operation of the HRA in very real operational scenarios when I was human rights adviser to the Policing Board. Many of those can be overlooked, unless you are on the ground, but there was a very real impact while benefiting police and public alike.

While at the Board I saw, in the vast majority of officers, people who wanted to contribute to society and protect everyone from harm.

I also learned however the great potential for abuse of power.

To enable police to protect us from harm and to protect society from destabilisation by those determined to subvert the rule of law, they are equipped with powers - many of which are highly intrusive.

They are authorised to use force against us; they can deprive us of our liberty. To balance that, there is a critical need for oversight. The oversight must be according to agreed principles and we have none better than human rights principles, with which the overseers are also bound to comply.

That was provided when the Board was charged with accountability of police compliance with the HRA.

We should support the police, we must support the police, but not by closing our eyes or ears to bad practices or alleged criminality.
Using the HRA to measure police performance was transformational. 25 years of it has resulted in a police service enjoying unparalleled legitimacy.

The police understand that and are cognisant of the appropriate powers and limits, through the human rights training they have all had.
Numerous officers have told me it made them better cops - and filled them full of pride - that they were human rights champions as much as anyone here.

Instead of being grateful for where we are with policing, after years of reform, there are some who roll their eyes when police officers talk about rights protection, they make jokes, drop the 'woke' word and accuse them of being too soft or too forgiving of criminals. This is ill-informed and does the police a great disservice. The HRA protects them and us.

Human rights are sometimes described as 'political' - as an accusation. Human rights are political in the sense that those elected to represent us and keep us safe and well are responsible for improving our rights protection and can also undermine it.
But the beauty of human rights, if properly understood, is that they care not one bit for party politics, for allegiance or status.
Human rights, and only human rights, will keep us all safe.

I wish that was recognised more.

They protect life and make life worth living, allow us to express our faith or our lack of it, allow us to vote for one party or another.

Human rights allow us to go into any public authority and be treated the same regardless of background and to assemble with others either to celebrate or to protest peacefully.

The HRA has done all of that for all of us, whether of high status or marginalised and vulnerable.

To end, I want, not least because of where we are today, to make this point.

Human rights protection that is practical and effective relies on lawyers being ready, willing and able to advise and take cases, often with a higher degree of risk, and, regularly without proper financial reward. It often pitches us against those in power and contrary to public opinion but we do it.

That is critical to the continued application of the Convention.
The pursuit of its principles and enforcement of its protections in Northern Ireland depends on the legal profession.

Without a legal profession that is autonomous, respected, protected and valued, we will not have a human rights framework worth having.
Northern Ireland has been the contributor of many seminal human rights cases. We learned the hard way. We have exported our dedication to human rights across Europe.

We have done that despite the challenges, and often without the recognition at home that you/we deserve. Lawyers cannot be expected to shoulder all of the burden.

Unless we continue to revere human rights, as protected by the Convention and as incorporated into our domestic law, we will very quickly become a pariah state across the Council of Europe.
We will let down the people of Northern Ireland who we pledge to serve without fear or favour. Unless we protect lawyers we will not protect human rights.

Thank you for your attention and for the warm welcome.