Divided Loyalties considers the implication of human rights on Northern Ireland society and concludes that Unionism has the outline of a coherent argument when it comes to Bill of Rights debate…
New framework for protecting rights
The Belfast Agreement created an entirely new framework for rights protection in Northern Ireland – a Bill of Rights was one part of that new institutional architecture.
However, debates about the protection of human rights in Northern Ireland have a long and turbulent history and the contemporary debate about a Bill of Rights for Northern Ireland is just one more chapter in a story that many argue began in the 1960s with the Civil Rights Movement.
The most recent signpost in this debate was provided by the advice presented to the Secretary of State by the Northern Ireland Human Rights Commission at the end of last year on the nature, content and scope of a Northern Ireland Bill of Rights
However, with cross community support absent, delays in the Government’s consultation on this advice not to mention their lukewarm response and with a future Conservative Government at Westminster opposed to the Commission’s proposals, the debate is in a state of flux.
The unionist argument
Unionist and Nationalist politicians have had very different reactions to both the NIHRC’s proposals and the recommendations of the Bill of Rights Forum issued in 2008. Both in the forum’s deliberations and in the public debate on this subject there have been disagreement and sharp differences of opinion between unionists and nationalists.
If we look at the responses of the main unionist parties, both to the Bill of Rights Forum report and more recently the NIHRC’s advice to the Secretary of State their argument can be summarised in three propositions: (1) Current proposals for a Northern Ireland Bill of Rights lack legitimacy because of the absence of cross community support for them. (2) In producing the proposals both the Bill of Rights Forum and the Northern Ireland Human Rights Commission went beyond the remit given to them in the Belfast Agreement. (3) Profound concern about the potential, under a Bill of Rights for power over public policy decisions to transfer from the legislature to the judiciary.
By working together strategically on the issue, both the DUP and UUP have added strength to their arguments and so let us look a little closer at the unionist argument.
Cross community support?
Firstly, it is deeply misleading to suggest that cross community support exists for a Northern Ireland Bill as some human rights organisations have claimed using opinion poll evidence as proof.
For example in a poll conducted by the Human Rights Consortium one of the questions posed was “How important or not do you think it is for Northern Ireland to have a Bill of Rights?” According to the Human Rights Consortium, 70% of respondents replied in the positive that a Bill of Rights was quite important or very important and claim that of respondents 69% from the Protestant community and 72% from the Catholic community supported this view.
However, the only appropriate way for assessing the level of cross community support for a Bill of Rights is through the democratic process and both the DUP and UUP have expressed their opposition to such proposals as they currently stand.
Beyond the particular circumstances
Secondly, the criticism made by politicians in the Unionist community that the Commission have acted outside the mandate given to it by the Belfast Agreement is a profoundly important issue that goes right to the very foundations of this debate. The Agreement said that the Commission was to,
“Consult and to advise on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland.”
This criticism is made at a foundational level about the way the NIHRC has adopted a maximalist interpretation of its mandate resulting in draft proposals for a Bill of Rights that go well beyond reflecting the ‘particular circumstances’ of Northern Ireland.
Indeed as the final report of the Bill of Rights Forum notes, “no issue divided Forum members more than the understanding of what constituted ‘the particular circumstances of Northern Ireland’.”
Unionism suggests that there should be a strict interpretation of the terms of the Belfast Agreement meaning that a Northern Ireland Bill of Rights should only contain measures which ‘reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem’. This would be consistent with human rights protection in the rest of the UK and other parts of the common law world.
Transfer of power
Thirdly, it is important to recognise that the debate about a Bill of Rights in Northern Ireland takes place against the backdrop of wider debate in countries around the common law world that have similar legal, constitutional and political traditions to Northern Ireland.
In places such as Canada, New Zealand and in debates about a British Bill of Rights and the ongoing consultation in Australia about a national charter of rights, the concerns expressed in those countries about the impact that constitutionally entrenched Bills of Rights have on democracy, in that they necessarily involve the transfer of power from the legislature to the judiciary, are reflected in Northern Ireland.
Indeed as Australia debates whether it should have a national charter of rights, unionism would be wise to examine closely that debate for any lessons that could be learned in terms of its own argument.
The problem with constitutionally entrenched charters of rights in general is that they facilitate the judicialization of the body politic and the legalisation of political discourse. As the great JAG Griffith stated, “What are truly questions of politics and economics are presented as questions of law.”
Most of us value participation in the democratic life of our body politic but do Bills of Rights that are constitutionally entrenched limit citizen’s ability to do this?
‘Whose rights, which ideology’?
At a recent SDLP summer school on the protection of rights in Northern Ireland it was noted by a PUP representative that Protestants and Catholics ‘see human rights differently’. To paraphrase the great philosopher Alasdair Macintyre, ‘whose rights, which ideology’?
There is truth in that observation. Indeed debates about rights conceptually, what they are, and in particular debates about Bills of Rights go right to the very heart of many contemporary debates in political philosophy about the relationship between rights and democracy and how the fundamental rights and interests of citizens should be protected.
This debate, however, is often eschewed by human rights practitioners who see debates about rights as irrelevant to their work of practically protecting citizen’s rights. But the problem with this approach is that if you can’t agree at a theoretical level about what rights are, how can you ever hope to have agreement at a practical level and in Northern Ireland we are faced with this dislocation in the debate.
That unionists and nationalist have competing and very different conceptions of rights, however, only tells half the story when it comes to the debate about human rights in Northern Ireland.
Of greater significance is the argument about the appropriate place for protecting citizen’s fundamental rights. What part of our constitution should have responsibility for doing this? Is it the courtroom, or is it Parliament? Do we have a vision of the political constitution or the legal constitution?
An ‘intelligible, defensible and coherent’ argument
Arthur Aughey once perceptively observed that “Unionism has been noted for its inarticulateness…This has little to do with the rhetorical skills of unionist politicians. It has to do with the ability of unionists to convey to others in an intelligible, defensible and coherent manner what they believe.”
When it comes to the current Bill of Rights debate, unionism, for once, appears to be articulating its position on a Bill of Rights in ‘an intelligible, defensible and coherent manner’ and has the outline of a coherent argument that it should continue to consider and reflect upon.