Professor Colin Harvey is right in believing that Northern Ireland should have its own Bill of Human Rights but he faces a long struggle to get it. In his article, he might have paid more attention to how an NI Bill would relate to the Big Brother versions for the whole UK both main parties are planning. But its important to guarantee rights on matters distinctive to NI whether the Assembly survives or not. This is so even though structural discrimination against nationalists and Catholics is now deemed largely to have ended. Unionists should realise that rights are indivisible and entrenched legal protections are needed for an unknown future. A Bill will happen in some form one day but not anytime soon. Top of the list are rights relating to identity, culture and language, sectarianism and segregation, victims and the legacy of the conflict, and criminal justice. There several stages to go before anything much happens.
First, what will be the shape and scope of a British Bill? It depends partly on the result of the general election. Labour and the Conservatives are divided over the scope of anti-terrorism and criminal protection and both are in barely suppressed conflict with the judges. The Conservatives are controversially pledged to replace the Human Rights Act which since 1998 has been the fundamental law for applying UK rights to legislation. If they do curb the courts’ discretions, what is the response for Northern Ireland? I haven’t notice the question being asked, never mind answered.
Second, social and economic rights are weak in both parties versions weaker in the Tories. In neither are they justiciable i.e. you cant take anyone to court if you think theyve been broken. But it might be useful to declare rights to public education, health and a safe environment as benchmarks for effective policies.
Without relying on the Assembly to do it, a public debate should be held soon on the NIOs consultation on their cool response to the NI HR Commissions draft Bill and take account of the ROI experience. It seems to me essential it should also review how or whether to express separate rights for J&P. Should the right to jury trial be covered separately in an NI Bill? NI might wish to depart from the developing English practice to allow non jury courts in certain terrorist and fraud cases. Both Bills will require Westminster legislation.
The biggest problem as ever is the sectarian party divide. Nationalists tend to argue for as many rights as possible, while the more conservative minded Unionists want as few as possible. Unionists are suspicious of nationalists exploiting rights to find sneaky ways round unionist obstacles in the Assembly. Its a battle between the legal state and the parliamentary state. Some unionists are beginning to realise that a rights approach could help unionist minorities. However, the rights agensa has been hampered by the production of two over ambitious reports from sucessive NI HR Commissioners. Politicians of whatever stripe would never have agreed to eithers full verison. The famous recantation by the first HR Commissioner Brice Dickson should have been a reality check for the wilder visionaries. Until realism dawns and a new government settles in at Westminster, an NI Bill of Rights is some way off. Perhaps the good professor will convene a conference to review the matter?