Colin Harvey is Professor of Human Rights Law, Queen’s University Belfast.
The prospect of comprehensive human rights legislation here appeared to have faded. The Bill of Rights process has been stuck since the Northern Ireland Human Rights Commission submitted its final advice in 2008. The pattern is a familiar one. Political unionism’s objections ensured that the British Government did not legislate; a convenient excuse to avoid adopting a Bill of Rights worth that title.
Instead the region is left with an incoherent mess, one which causes ongoing confusion and uncertainty. A still neglected human rights and equality guarantee in the Irish Protocol – that will keep judges and lawyers guessing for years – and necessarily repetitive attempts to defend the Human Rights Act 1998 against the latest attacks from the Conservative Party.
A bits and pieces regional agenda that does make a difference, but which lacks imagination and ambition.
The arrival of the Assembly’s Ad Hoc Committee on a Bill of Rights in 2020, following New Decade, New Approach, provided hope that momentum might be restored. The Committee is due to report in February 2022. There is already evidence that traditional political challenges persist, with a strong possibility that stalemate might prevail again. However, if the Committee is to make a significant contribution, what factors might be taken into account?
First, there should be honest recognition that there is a problem. The Committee needs to move beyond the conservative defensiveness that can limit the human rights and equality debate in the region. What is now in place is not good enough. Whether it is possible to address that position in the present constitutional configuration is a live question, but continuing denial is unwise. There is a compelling case for a strong and inclusive Bill of Rights.
Second, the Good Friday Agreement is clear that the Bill of Rights must be legislated for at Westminster. That raises multiple practical and principled questions, given the current levels of justified distrust of the British Government. Without significant external pressure Westminster is unlikely to legislate. The absence of cross-party political agreement may continue, and that will further incentivise those who wish to do nothing.
That also connects to the question of what might be possible within the power-sharing context. For example, it is notable how far Scotland has gone, and is planning to go, in advancing its own human rights and equality project. Is there any scope for the Executive and Assembly to take the initiative in this way? Are there things that could be done now to make things better?
Third, there is a corrosive tendency to amplify division. And this is where things get odd. Because most seem to want change. People support enforceable rights, including those that some politicians are often sceptical about: socio-economic rights. Evidence confirms the widespread desire for the adoption of a rights-based framework, in areas such as housing and health care. Political parties therefore need not fear communal resistance if they do decide to press on, in a region where the depth and extent of ‘civic expertise’ is remarkable.
Fourth, the region faces an uncomfortable dilemma, in the context of wider debates about the constitutional future. Can the current arrangements ever really deliver a rights-based society? This includes not merely the old complaint about the inertia embedded in power-sharing, but whether the way to achieve ‘progressive objectives’ is within the conversation on a united Ireland.
As odd as it may sound to some, is the only real vehicle to transform the region through a much more detailed examination of the constitutional question? Might that be the mechanism to secure the sort of ambitious reforms that current debates have failed to deliver? It would certainly place much more pressure on political unionism, for example, to make its case and it is striking how quickly debates on a New Ireland have moved to embrace advocacy for a new constitution.
Finally, the Ad Hoc Committee has the task of charting a credible way forward, and not just finding an agreed outcome. One that moves beyond the recognised failings of the current approach. It is doing so without the assistance of the Panel of Experts promised in New Decade, New Approach.
There will be an understandable quest for consensus, a search for political agreement. That makes sense given the history of the process, party-political disagreement (obstruction by political unionism) is the major reason why things have stalled thus far. Achieve consensus and everything will be fine, right? Unfortunately, not; such naive thinking would be a mistake and should be avoided.
A divided Committee is better than a flawed final report that finds shallow approval in lowest common denominator recommendations. Equally risky would be the provision of options when you know the most unappealing and ‘acceptable’ one is likely to be selected. Better to hold to an ambitious vision for this society than concede excessive and unnecessary ground in the hope of achieving an eventual consensus that may never arrive.
In the end, the best options for expansive reform may rest elsewhere, and in other discussions. It should now be plain that the island is on a path towards concurrent referendums. Many are reaching the well-founded conclusion that this dysfunctional regional mess may never produce a sustainable culture of equality, human rights and mutual respect.
People are looking towards constitutional status change as another way to generate the focused debate around what is required. While that gains additional traction, this place will stumble on within a cramped patchwork of guarantees, and those who care for human rights and equality will keep making the best of a bad job; using whatever tools are available to maximise the potential for transformative social change in the here and now.
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