THERE has been a great deal of criticism of the Conservative plan to repeal the Human Rights Act - and rightly so. Repeal would be an absurd, confused over-reaction to a handful of unpopular rulings, most of which were made by British judges and the rest of which the British government is already free to ignore.
However, that does not mean the eulogies for the legislation in Northern Ireland are correct. Despite its central place in the Good Friday Agreement, it is hard to see what the Human Rights Act has ever done for us.
The first defence of the act was typified by last week's Irish government statement that it "protects peace and stability" by giving all communities confidence in their fundamental rights. Yet this was true from 1966, when the UK's ratification of the European Convention of Human Rights became available to individual plaintiffs. Strasbourg started hearing Troubles cases from the early 1970s and also ruled against the criminalisation of homosexuality here in 1981.
The 1998 Human Rights Act made such cases (relatively) cheaper and faster by allowing them to be heard in British courts but this also internalised the system to the UK, complete with a 'supreme court' in London that is sovereign over Strasbourg and the final arbiter for Northern Ireland. From a nationalist perspective, is that not worse than what went before, thereby reversing the supposed benefits for peace and stability?
The next defence of the act, made in recent days by Gerry Adams among others, is that it guarantees "equality". This is a schoolboy error. Human rights and equality are separate concepts, which is why the Good Friday Agreement protects them under separate laws and commissions. You have the right not to be discriminated against but only in the
enjoyment of your rights. Otherwise, the Human Rights Act takes precedence over equality law and can work against it. A good illustration is the row over 'gay blood', where the right to life of recipients takes absolute precedence over the equality of donors.
In 2008 the Irish government unilaterally merged its human rights and equality quangos, breaching its Good Friday Agreement commitment to maintain the same institutional architecture on both sides of the border. The lack of fuss about this compared to the current hysteria over the Tories reveals a widespread belief - perhaps subconsciously shared by unionists - that rights are for nationalists and can never be broken by them. Seventeen years of the Human Rights Act has not disabused us of this dangerous notion.
On issues less straightforward than gay blood, the concept of rights is surprisingly useless. Abortion is a pertinent example for Northern Ireland, with even the Human Rights Commission admitting the law offers no insights and politicians will just have to sort it out. Whenever two rights conflict, or two people's rights conflict, arguments can quickly return to the sort of circular whataboutery that characterised debate in Northern Ireland long before 1998.
A legacy of death has given us particular problems with the right to life, none of which the Human Rights Act has solved and some of which it has made worse. Victims campaigners cite the state's right to life requirement to investigate all killings, then the PSNI takes years to redact the files under its right to life requirement to protect suspects and witnesses.
Loyalists run amok for three years because a chief constable decides the right to life takes precedence over public order, creating another threat to peace and stability.
Courts impose reporting restrictions that imperil open justice and hence the right to a fair trial, because paramilitary-esque gangs threaten the right to life of the accused.
The Human Rights Act has given us a legal, political and intellectual framework to discuss these disputes, as its supporters are fond of pointing out. What they fail to point out is that it seems to give us more disputes than answers, while entrenching both sides with a sense of their 'right' to victory, although of course it is not in the nature of activists, quangocrats and lawyers to see this as a bad thing.
We are fortunate that the rights sector's bill of rights project over-reached itself and collapsed, as its proposed right to benefits "progressively realised to the maximum of available resources" would have made Stormont's welfare reform deadlock even more intractable.
David Cameron may have no good reason to get rid of the Human Rights Act but as yet we have no good reason to keep it. newton@irishnews.com