U-Turn by the father of NI Human Rights practically sinks the project

I’ve just had drawn to my attention the remarkable recantation of his former position as the father of an all singing, all dancing Northern Ireland Human Rights Bill by Professor Brice Dickson the first Commissioner, to Parliament’s Joint Committee on Human Rights. Prof Dickson resigned in a state of some chaos and acrimony, to be replaced by Monica McWilliams. In a memo of appalling frankness, he rejects many of the premises and conclusions of his own massive efforts and the replacement Advice on an HR Bill which was delivered with fanfare just before Christmas – although with unionists dissenting. While the UK government will wordlessly stall on the Bill until the election and the Conservatives would abandon it, the Dickson confessional just about torpedoes the whole thing intellectually as well. Meanwhile the Commission is forging blissfully ahead with their own well-meaning, good intentions. On a trip to the UN in Geneva, they have claimed majority support in both communities. It’s strange that this radical rethink has received so little publicity.Perhaps it will now. Inevitably when the plug is finally pulled on the McWilliams version, there will be unionist crowing and republican cries of betrayal. Yet another rethink is required. Edited extracts from the Dickson document below the fold.

The evidence of Brice Dickson , Professor of International and Comparative law at Queen’s University Belfast, and Director of the Human Rights Centre in the School of Law at that University, but submitting this evidence in a purely personal capacity.

Until I left the Commission I was firmly convinced that a broad-based Bill of Rights would be a great thing for Northern Ireland. Today, more than four years after leaving the Commission, I am not so sanguine.

This is partly because the Forum for a Bill of Rights, which sat from December 2006 until March 2008, produced such a non-consensual report, and the Human Rights Commission’s advice to the Secretary of State, delivered in December 2008, met with such fierce opposition from unionist politicians. But a further reason for my change of position is that I have come to believe that the significance of having a broad-based Bill of Rights in Northern Ireland is just not as great as I once imagined it to be.

I emphasise that I still want human rights to be very well protected in Northern Ireland and that I think a Bill of Rights should be put in place to help secure that protection; it’s just that I do not think the Bill of Rights needs to be of the ‘all singing, all dancing’ variety that has been argued for by the Commission up to now.

..there has been controversy over the phrase ‘the scope for defining rights’. The Commission itself, and most human rights NGOs, have taken the phrase to be, in effect, an invitation to identify rights not already protected by the European Convention which it would be good for the people of Northern Ireland to have. Others, especially unionist politicians and some religious organisations, have read the phrase as a requirement that the Commission must explore what common ground exists in Northern Ireland on the additional rights that need to be protected there.

The result of these differing interpretations of the nature of the enterprise being demanded of the Commission has been a significant political stand-off. In my days at the Commission the unionist politicians hardly engaged with us at all. I had the impression that very few in the Ulster Unionist Party understood enough about the issues involved to be able to present a coherent position to the Commission. The Democratic Unionist Party may have been more knowledgeable about human rights but for its own political reasons it did not want to accord the issue much attention – it had bigger fish to fry and it believed, probably rightly, that the Bill of Rights was never going to be an important enough issue for nationalist political parties to justify the DUP suggesting a trade-off between progress on the Bill of Rights and progress on some part of its own political agenda.

The Forum on a Bill of Rights was set up to fill the gap which some said had arisen in the Human Rights Commission’s work to date on preparing its advice for the Secretary of State. It was meant to give the political parties a chance to sit together in a room, along with representatives of civil society, to thrash out an agreed way forward. There was speculation that the resulting report would be such a sacrosanct document that when the Human Rights Commission received it it might not want to change a jot of what was recommended for fear of upsetting the delicate compromise that had been struck after long negotiations. Alas, the Forum did not work out like that. Despite sterling efforts by its independent chair, Mr Chris Sidoti, those attending the Forum did not work in a spirit of give and take. The Forum’s report is, as a result, a most disappointing document. The only positive thing that can be said of it is that it makes explicit, if crudely at times, the vast differences of opinion that exist on this topic between the political parties in Northern Ireland (and within civil society too).

The HR Commission’s Advice ( on a new Bill) ocuses on what the Commission thinks would be ideal for a Bill of Rights rather than on what it knows to be realistically achievable in view of the differing views of the local politicians. The time has therefore come for some fresh thinking in the field.

Three factors favouring radical re-think
Since the coming into force of the Human Rights Act in 2000 there is no longer the human rights deficit in Northern Ireland that in some people’s eyes existed at the time of the Belfast (Good Friday) Agreement.

Even in a nation where the doctrine of Parliamentary sovereignty is the dominant constitutional principle, human rights can be adequately protected without there being a Bill of Rights in place that goes beyond the European Convention – ‘ordinary’ legislation can do the job just as well. ( My comment: This means Appeal and Supreme Court judges will not acquire the power to “strike down” legislation, so why pretend that they might?

Bills of Rights are easier to reach agreement on if they are restricted to general principles of human rights issues and do not descend into fine detail or trespass into issues concerning how the country in question is governed.

Not only is there no longer a human rights deficit in Northern Ireland, there is also no plausible case to be made for saying that unless Northern Ireland obtains a comprehensive Bill of Rights the peace process there will fall apart. In years gone by I myself occasionally resorted to that last-gasp argument while never actually believing it to be a strong point. To rely upon it today is to retreat to a position of desperation. The peace process in Northern Ireland remains strong and vibrant,..

Many have fallen into the trap of thinking that if only we could get additional human rights written into a Bill of Rights the people of Northern Ireland would be guaranteed protection against all sorts of government policies which are disliked, especially those impinging on social and economic matters. Such a belief might have some plausibility if the United Kingdom were a country where the courts could strike down legislation as invalid if it contravenes human rights, but that has not been, and is not, the case, and very few respondents to the Commission’s consultation documents have stated that they wish the basic principle of Parliamentary sovereignty to be abandoned. Giving too much power to unelected judges is an intensely undemocratic and potentially unwise thing to do.

If rights are inserted in the Bill in an attempt to address the peculiarities of Northern Ireland’s divided society, this will risk undermining the basic principle that human rights are universal norms.

Thus, measures required to ensure that there is ‘mutual respect for the identity and ethos of both communities and parity of esteem’ should not be formulated as ‘human rights’ but as locally important constitutional principles. I know that the Belfast (Good Friday) Agreement suggests the contrary, but that only goes to show that a document drafted in relative haste more than 11 years ago should not be considered as written in tablets of stone.

a Bill of Rights for Northern Ireland should contain some provisions referring to ‘responsibilities’. Amazingly, this concept has hardly featured at all in the Human Rights Commission’s proposals to date, nor in the Forum’s work. (My comment: any new UK Bill may acquire Responsibilities but only as guidance not to be ruled on by the courts.)