Securing a Bill of Rights for Northern Ireland

Prof Colin Harvey, a member of the Northern Ireland Human Rights Commission and Head of the School of Law at Queen's University Belfast (and Amnesty member!), gave a comprehensive speech in London this week on the proposed Northern Ireland Bill of Rights.

I'm taking this opportunity to publish the text of the speech:

ACHIEVING OUR BILL OF RIGHTS?
Speech delivered at King’s College London, 22nd February 2010 by Colin Harvey

Good evening everyone. I am pleased to have this opportunity to talk to
you about the Bill of Rights process in Northern Ireland, and discuss
possible next steps. I would like to thank Professor Aileen McColgan and
the School of Law at King’s for making this event possible, and Maggie
Beirne for chairing the session.

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.
Context

First, some context. Discussion of a Bill of Rights for Northern Ireland is
decades old. Through the 60s, 70s, 80s, and 90s, the idea was there
and persisted. People often meant and understood different things. For
some, the incorporation of the European Convention on Human Rights
might achieve the objective of advancing human rights protection, for
others an additional next step would be required; a home-grown Bill of
Rights. The notion did develop over time that a Bill of Rights for Northern
Ireland might form part of any new constitutional arrangements. Most political parties, and many others, viewed the concept of a Bill of Rights
as a ‘good thing’.

The general context tended to be Northern Ireland
specific, with violent conflict and ethno-national division (British-Irish) –
and all the economic, social, political and cultural causes and
consequences of conflict – providing an evident ‘particular’ backdrop
requiring attention. Not the ‘unique’ circumstances of Northern Ireland
(for there is little that is ‘unique’ about violent conflict and ethno-national
division) but those ‘particular circumstances’ in the context of
international and regional human rights developments and trends. The
hope that as part of our peace process a Bill of Rights could emerge that
was a model for others, and signalled a collective commitment to a
principled new beginning for human rights protection.

Those decades of debate might be described as an extensive collective
effort to promote the idea of a ‘constitutional’ Bill of Rights, as one part of
a constructive agenda to create a new Northern Ireland. In other words,
an attempt to map out the constitutional legacy we might leave to future
generations: A Bill of Rights expressly for Northern Ireland as part of
working our way together towards a genuinely shared and truly
reconciled future.

The Bill of Rights Process
Second, the Northern Ireland Bill of Rights process. Although the
process is decades old, real momentum and focus was generated by the
Good Friday Agreement 1998. The Agreement provided a firm basis for
the creation of a new Human Rights Commission (one that would be
stronger than SACHR), and for the Bill of Rights process.

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? Is anyone who is familiar with human rights
law, policy and practice honestly surprised by the interpretation of the
remit and the final content of the Commission’s advice?

The process was launched precisely 10 years ago next week (1 March
2000). The Commission produced a range of consultation materials, and
with many others, attempted to promote a wide-ranging societal debate.
When it became clear that the political parties needed to become more
engaged, the Commission – with others – suggested the creation of a
Bill of Rights Forum. The St Andrews Agreement 2006 provided the
political basis for the establishment of a Forum of 28 members (14
political parties and 14 civil society). The Forum was chaired by Chris
Sidoti, and reported in March 2008. Although the terms of reference
referred to ‘agreed recommendations’, the final report opted to list its
recommendations with levels of support indicated (cross-party
disagreement on content remained evident).

From March – December 2008 the Commission worked to finalise its advice. One innovation here was the publication of an agreed methodology in June 2008. The Commission handed over its final advice on 10th December 2008 –
international human rights day and the 60th Anniversary of the Universal
Declaration of Human Rights. Thus a key milestone in the process was
concluded. On 30th November 2009, the NIO published its consultation
response with a deadline of 1st March 2010.

The Commission’s Advice
Third, the Commission’s advice. I have already mentioned the debate
over remit. Whatever view is taken of that (and I have suggested above
that the approach can be justified), none of its proposals would, or
should, surprise anyone familiar with international, regional, or national
human rights law and the particular circumstances of Northern Ireland.
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.

Next Steps?

What might the next steps be? How should this now be taken forward?
The NIO consultation period ends next week. People have already used
strong words in response to this consultation, and there is genuine and widespread disappointment. People embarked on this profound
constitutional enterprise in good faith because they wanted to leave a
lasting and credible legacy for future generations. Not one that
condemns us to repeat our awful past – but to help to nurture the shared
future that so many talk about, but which remains so palpably absent.
Many of the positive values of our best constitutional moments have
simply been lost or neglected in the last decade. The right sort of Bill of
Rights might help to remedy that (the wrong sort could make matters
worse, of course).

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.