A Northern Ireland Human Rights Bill will not go away

The extension to the end of March of the consultation period on the NIO’s virtual rejection of the NI Human Rights Commission’s Advice on an HR Bill looks like a small concession to its advocates. It will at least give them a little more time to begin laying down the parameters and benchmarks of a Bill itself for future consideration. Undaunted by the frigid reception, they’ll press on, noting optimistically that no party on either side of the water has turned down the basic idea. Earlier this week, Prof Colin Harvey an NIHR commissioner and head of the school of law at Queen’s, gave an impassioned defence of the Advice in London. The NIO’s reply was “remarkably disrespectful o of the NI human rights context.” No one should have been surprised that the commission should have produced a document that conformed to international and regional HR standards. Harvey’s basic case is simple enough:

“.. to promote the idea of a “ constitutional” Bill of Rights as one part of a constructive agenda to create a new Northern Ireland.. an attempt to map out the constitutional legacy we might leaver to future generations…. (and) working our way towards a genuinely shared and truly reconciled future.”

Even so, the range of opposition is formidable. The Conservatives are even cooler than Labour. Unionists are dismissive, sniffing a leftie and nationalist plot to subvert a unionist veto over all sorts of things. Added to which is a certain school of Protestant suspicion that rights are handouts at the expense of those good people who live up to their responsibilities. This instinct chimes in with a more sophisticated debate over stressing rights (Rawls) too much at the expense of the common good.(Sen).
In the coincidental UK debate over as British Bill to replace the Human Rights Act, the parties have created their own dilemma. They support rights, but without increasing the power of the courts at the expense of their own prerogatives as ministers and MPs. This lies at the heart of fierce objections to social and economic rights which can be (endlessly?) tested in the courts and are regarded as alien to the British tradition. Although times are changing, appeals to international best practice do not automatically succeed in this field.

The NI debate for its own autonomous Bill (to be enacted at Westminster not Stormont, remember) fits uneasily into this context. My own belief is that unless Westminster progresses towards a written or codified constitution, it will not of its own bat enact a written constitution for NI – which is what the NI Bill really is. Unless – and there is an unless- the Stormont parties want it. So any thought of appealing direct to Westminster over the heads of the local parties seems doomed to failure.

To the unique context of NI, Harvey adds in terms, nationalist objections to being tagged on as an afterthought to a British Bill. He might have added (but didn’t ), the protection given to unionist rights. HR lawyers tend not to argue vulgar politics. But a separate constitution for NI could complicate any process towards a united Ireland. And if ever that were achieved, unionist rights would be copper fastened– not because they would be sectionally expressed but because rights are universal.

The HR debate will not go away. The Commission’s support for an Assembly committee on human rights would be a logical step, able to compare and contrast with the growing debate at Westminster which will figure over the next three or four years.

Extracts from Prof Harvey’s speech

ACHIEVING OUR BILL OF RIGHTS? Colin Harvey Speech delivered at King’s College London 22nd February 2010 The Bill of Rights process has reached a significant moment. The Northern Ireland Office (NIO) is currently consulting on its response to the Human Rights Commission’s final advice. This evening I would like (in a personal capacity only) to sketch the context for the debate, say something about the process, note substantive aspects of the Commission’s advice, and then reflect on where we go from here.

As is well known, the remit is set down in the Agreement. The exhaustive (and exhausting) debates often seem to neglect a basic point. If an independent statutory Human Rights Commission – in the constitutional context of the Good Friday Agreement and the Northern Ireland Act 1998 – is asked to provide advice on a Bill of Rights for Northern Ireland is anyone genuinely surprised that it approaches its task purposively (with agreed principles and an agreed methodology) and seeks to offer sound human rights advice reflecting Northern Ireland’s particular circumstances and anchored in international instruments and experience?

The advice is worth reading in detail and in full – I will mention a few points. The Commission concluded that:
? Existing provisions of the ECHR could be supplemented, for example, the right to liberty and security of the person and the right to a fair trial.
? The Bill of Rights should respect the internationally recognised principle of the indivisibility, through the inclusion of justiciable social and economic rights (health, adequate standard of living, accommodation, work, and social security rights). The advice also includes environmental rights and a section of children’s rights.
? A Bill of Rights for Northern Ireland should take care not to undermine existing guarantees and protections. For example, by ensuring that provisions on equality, democratic rights, and identity were carefully crafted in order to ‘do no harm’.
? A Bill of Rights should build on, and not undermine, the Human Rights Act 1998. By learning the ‘human rights lessons’ from its first ten years and ensuring it is not repealed in the process of enacting a new Bill of Rights.
? Oversight of a Bill of Rights was not merely for the courts. The Commission recommended the creation of a new Assembly Committee on Human Rights, as well as a periodic review mechanism, and a future role for the Commission itself.

The NIO response was published on 30th November 2009. It is widely viewed as a disappointing initial engagement with this significant constitutional enterprise. The NI Human Rights Commission has reacted to the NIO document. The five headings in its published response leave little room for doubt or ambiguity of its view: it demonstrates a lack of understanding of the purpose and functions of a Bill of Rights; failure to take appropriate account of international human rights standards; appears to be suggesting the lowering of existing human rights protections; inadequate consultation; and misrepresentations of the advice given by the Commission.

What then might the next steps be? There is little sign that people will be willing to abandon a constitutional project that has spanned decades. The answer may be simple: following conclusion of the consultation period, a clear and public indication should be given by government of the next steps with a timescale. The starting point should be to design a Bill of Rights for Northern Ireland that respects and reflects the Commission’s final advice, and takes full account of the various consultations that have taken place. Whatever political configuration emerges after the General Election, there is no reason why legislative progress cannot be made towards a Bill of Rights (Northern Ireland) Act. This need not await the outcome of consultations on a UK-wide instrument (there are already innovations in Northern Ireland – that is, of course, one logical result of both devolution and the peace process). It is perfectly possible to proceed with the Bill of Rights (Northern Ireland) Act in advance of longer-term constitutional developments. The basis for progress is now there – but not as currently envisaged in the initial NIO response.

In that overall legislative context, benchmarks, parameters and principles should be clarified by government for taking this work forward – including enhanced recognition of (and engagement with) the extensive work that has already been undertaken, confirmation that existing human rights and equality guarantees will be built upon (and not undermined), the centrality of international human rights standards in shaping a Bill of Rights, and an acceptance that the Northern Ireland process has an integrity of its own (this should not be merely submerged under a potentially extended discussion of a new UK-wide Bill of Rights and Responsibilities). If the foundations are firm, and principled benchmarks accepted, a Bill of Rights debate in Britain might even be a sensible and productive one – but after the last decade of hard work and constructive and carefully crafted proposals, it is not a credible excuse for further delay in Northern Ireland. Many here will know, but it is worth re-stating: the offer of joining in with a wider – and emerging – new debate on rights and responsibilities in the UK may be unappealing (to put it mildly) to many, and the terms of that discussion can at times be intriguingly disrespectful of Northern Ireland’s particular circumstances (just the thing that everyone claims to be trying to respect). I do hope that those who are promoting this new UK-wide process have fully thought through all the consequences for the delicate and fragile constitutional balances now in place in these islands. Whatever happens with that process, my point here tonight is that progress towards a Bill of Rights (Northern Ireland) Act remains possible, if it reflects and respects proposals which have already been carefully tailored to address Northern Ireland’s circumstances.

To conclude: We still need a Bill of Rights for Northern Ireland. Not simply any Bill of Rights, but one that respects this profound constitutional enterprise, one which leaves a lasting and positive legacy for future generations. I still believe that a truly shared future in Northern Ireland depends on it. I still believe it is possible to achieve our Bill of Rights.