affiliated to the International Association of Constitutional Law
The Northern Ireland Human Rights Commission (NIHRC) submitted its advice on a Bill of Rights on 10th December 2008 (I should declare that I served as a human rights commissioner during this time). The Northern Ireland Office (NIO) issued a response and consultation document on 30th November 2009, and on 16th December 2010 the NIO published the reactions to its proposals (36,492 responses were received). In the intervening period, the UK General Election produced a new coalition government, and a new Secretary of State; Shaun Woodward (Labour) was replaced by Owen Paterson (Conservative). Owen Paterson inherited a Bill of Rights process that in its current form was initiated under a Labour government, spanned at least a decade and was intimately meshed with the Northern Ireland peace process. Noting the high-level of support for the sort of Bill of Rights proposed by the Commission (and thus rejection of the narrow approach endorsed by the NIO), as well as continuing party political disagreement, the NIO highlighted the role of consensus in taking this work forward, and its desire to consider the matter further. The implication was that the absence of party political consensus remained a determining factor, and that further progress would not be made. An expansive, extensive and exhaustive process looked like it had shuddered to a halt.
The argument in support of a Bill of Rights for Northern Ireland has been around for some time. The landmark texts of the peace process tend to confirm that enhanced human rights protection was intended to be one logical outcome. Current developments therefore possess a distinctive heritage, ultimately given practical expression in the Belfast/Good Friday Agreement 1998 and subsequent agreements (the notion of a Bill of Rights has never been formally rejected at this level). This point cannot be lightly skipped, and gives the Northern Irish discussions a quality of their own; they are not sensibly reduced to a simplistic conversation about UK constitutionalism. The fact that the Agreement was endorsed in both jurisdictions on the island of Ireland, underpinned by British-Irish international agreements, and reflected a sophisticated form of bi-national accommodation, must not be rendered constitutionally insignificant in a British or Irish context.
Therefore, the Commission did not start with a blank page in several senses; the mandate was forged within a particular constitutional moment and peace process. Based upon the Agreement’s remit (as reflected in the Northern Ireland Act 1998), the Commission launched the latest phase of discussions on 1 March 2000 in Derry and Belfast. What is apparent now is just how extensive this rights-based dialogue was. The focus that sometimes falls on substantive disagreement should not mask the areas where agreement was possible, and the beneficial societal and political implications of having this constitutional conversation. No one seriously doubted that the political parties disagreed (and would continue to do so). Few doubted that hard political negotiations would some day follow the Commission’s advice. Why else farm out such constitutionally significant work to a newly created Human Rights Commission? What did exist was a shared belief among many that a new constitutional bill of rights might be one normative pillar of the promised post-conflict ‘fresh start’. As a consequence of the Agreement’s clear language, it was taken for granted that this new constitutional measure would supplement and build on the European Convention on Human Rights. No backward steps were envisaged.
The story of the Commission’s efforts is now reasonably well known. Consultation documents from 2001 and 2004 sketched out ways forward, and reactions demonstrated, among other things, that political consensus was absent. The idea emerged in 2002-2003 to establish a round-table forum that might bring the parties and civil society together to achieve agreed recommendations. Following the St Andrews Agreement 2006, the Bill of Rights Forum was launched in December 2006 with the express aim of securing agreement on a way forward that would inform the Commission’s final advice. The Forum was composed of an independent Chair (Chris Sidoti) and 28 members (14 representatives of the community and voluntary sector and 14 representatives of all the main political parties). The Commission was one of the official observers. The Forum handed over its report on 31st March 2008. The Chair’s comments at the handover event acknowledged the minimal level of consensus achieved, and the challenges ahead if a negotiated resolution was to be found. With the full weight of evidence gathered through the consultations, a grasp of the politics of the process, an agreed methodology for its work, and input from a range of advisers, the Commission set itself a deadline and worked towards completion of its advice. On 10th December 2008 another landmark was reached when the advice was finally handed over.
It is unsurprising to note that the Commission was internally divided, with two commissioners (from backgrounds in political unionism) dissenting from the final document. The levels of agreement and disagreement, evident throughout, simply re-surfaced following the submission of the advice. There were three broad strands to this. First, those participants who believed that the Commission had exceeded its remit in procedural and substantive terms. Procedurally, in the sense that – from this perspective – the Commission was not asked to draft a Bill of Rights (or something that looked uncannily like it), and substantively, that the Commission had gone too far in proposing rights that could not be credibly subsumed under the particular circumstances of Northern Ireland. Second, those who were generally content with the advice, who felt that the Commission had got it just about right, and wanted to know how this work was going to proceed to completion (their attention turned to the British government). Third, and sometimes neglected, those who believed the Commission’s advice did not go far enough on matters such as children’s rights, language rights, and in challenging the existing legal culture in Northern Ireland. The voices of those arguing that the Commission had adopted a ‘maximalist agenda’ often drowned out those who believed it could have gone further. Those falling within strand one were largely associated with political unionism and, given the power-sharing dynamics of political life in Northern Ireland, the notional ‘veto power’ was always likely to prove decisive (although the lack of political will across all parties should not be underestimated).
As the Northern Ireland process was stumbling forward, someone thought it wise to initiate a debate about a British Bill of Rights. Both David Cameron and Gordon Brown started talking up the potential for such a new constitutional document from 2006 onwards. For different reasons, both seemed to share a worry about the strength of the nationalistic glue that was holding Britain together, and saw a new ‘British document’ as one element of a resurgent British constitutional patriotism. The Conservative Party viewed this as a convenient way of replacing the Human Rights Act; despite the evidence to the contrary, this was a constitutional measure whose national credentials and practical implications were increasingly questioned. Even though in the end the Labour Party rediscovered its faith in the Human Rights Act (and the Liberal Democrats rowed in behind), both major parties seemed to share a common concern about the imagined British patriotic deficit. All of this was, of course, taking place at a time when events in Scotland, Northern Ireland, Wales and England were placing the traditional idea of a unitary United Kingdom under considerable strain.
Following the UK General Election, and after much discussion, the end result was the establishment on 18th March 2011 of an intriguingly composed new Commission on a Bill of Rights. The terms of reference could not be clearer: ‘The Commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties’. An anxiety-ridden constitutional conversation about Britishness, with the Human Rights Act 1998 as one of its initial political targets, has now been transformed into discussion of a new UK Bill of Rights that builds on the European Convention domestically. The Commission is tasked with reporting by the end of 2012 on its investigation into the creation of a UK Bill of Rights (the language again is instructive) and is required to consult with the devolved administrations, among others.
One neat and seemingly obvious response to these developments is that the Northern Ireland process should now plug into this UK dialogue. There is no reason in principle why developments in Northern Ireland cannot inform progress elsewhere, and engagement seems defensible. However, we should not miss some of the complexities of a fragile and sophisticated peace process, and also arguably the capacity of this new Commission. I have argued in other contexts, that Northern Ireland has witnessed the emergence of a ‘political constitution’ carved out carefully over decades and giving life to principles which underpin politics and law. These are constitutional principles that can form a bridge between British and Irish constitutionalism, and stand a decent chance of acknowledging and respecting the essentially bi-national forms of accommodation to be found in Northern Ireland. These principles include a distinctive form of self-determination, a particular version of power-sharing self-government, notions of parity of esteem between Irish nationalists and British unionists, tailored mechanisms and standards to advance rights, equality and social justice (that include the concept of equivalence in Ireland, North and South), as well as firm and focused British-Irish inter-governmental co-operation. This political constitutionalism (in the sense that its origins and dynamics can be traced to political and democratic processes) finds legal form in international agreements, and in the law and practice of the UK, Northern Ireland, and Ireland. Whether the implications are yet fully understood within British or English constitutional legal discourse or even accepted, is of less importance than the fact that a new and more pluralistically informed version of constitutionalism is emerging. In that context, the Northern Ireland Bill of Rights process has an integrity of its own that must be respected in any constitutional conversations that are to happen in Ireland or in Britain around human rights. To put this plainly: any processes would need to be mindful and respectful of a political constitutionalism that cannot be reduced to an integrative UK-wide version of legal constitutionalism, particularly one animated principally by anxiety about British national identity and potentially harking after the erosion of existing protections (although it should be observed that the terms of reference for the Commission on a Bill of Rights are carefully and wisely crafted in this respect). More straightforwardly, the Northern Ireland process is at an advanced stage, with detailed proposals and counter-proposals available. In that sense, the hard substantive work has already been done. It is surely open, for example, to the new Commission in London to recognise this, welcome it, and propose that the Northern Ireland process proceed to completion; it need not wait until the end of 2012 to say it. It is to be hoped that some of the proposals from Northern Ireland might even inform the wider discussions in the UK (the presence of Lord Lester as a member of the Commission, and a former adviser to the Human Rights Commission with a longstanding interest in Northern Ireland, will no doubt assist).
There are four things to underline by way of a tentative conclusion. First, wearily looking back and bemoaning missed opportunities is easy, as is an exclusive focus on disagreement. It is worth defending the intrinsic value of the process, the scale of participation, the seriousness with which it was taken and engaged with, and the many remarkable proposals that emerged. Stalled as it now is, the Northern Ireland Bill of Rights process is something worth celebrating. As intangible as it may seem, it has impacted on the sort of human rights culture we now have in Northern Ireland.
Second, a Human Rights Commission would always, in my own view, be well advised to focus on its overriding human rights mandate, and its status and standing as a rights-based institution. Societies that create such bodies must expect them to be human rights commissions. That need not mean they should be utterly insensitive to context; the best human rights organisations know how to weave generalised human rights standards into the fabric of localised debates. A Commission, however, that set out to pitch its advice to the lowest common denominator, or to neglect its own complex constitutional context, would be doing a democratic disservice to society. That is a wordy way of saying that the Northern Ireland Human Rights Commission was surely right to offer internationally grounded, comparatively informed and carefully tailored contextualised human rights advice to government.
Third, the step of final political negotiation is a necessary one that needs to be thought through, but it is not evident that a human rights commission, in the role of adviser, should principally orient itself in this way. It is not hard to see that advances in Northern Ireland were made when it was political conducive and possible. ‘Getting the politics right’ is part of making progress in democracies. The 1998 Agreement paved the way for the new Commission, the St Andrews Agreement 2006 led to the creation of the Bill of Rights Forum. The Human Rights Act 1998 – reflecting ideas long debated and fought over – had to wait for the correct political moment (the election of a Labour government in 1997). But political strategy and tactics cannot be the determining factors in the constitutional conversations that we have, and it cannot be right to expect a human rights commission to achieve party political agreement (how could it?). Party political consensus should be sought and delivered by those institutions with more experience of this work, and ones that are capable of delivering negotiated outcomes. Placing the onus on a human rights commission or bill of rights forum to resolve party politics seems like a distraction from the political leadership and responsibility necessary to advance this significant work. What this reveals is the greater challenge for advocates of any version of rights-based political constitutionalism; that is of encouraging the practical assumption of responsibility by those constitutional actors who most often object loudly to judicial empowerment. How do we ensure that legislatures, executives and political parties take responsibility for, and claim ownership of, these normative commitments in more than rhetorical senses? How might we improve the responsiveness and capacity of legislatures in this respect? If progress is now to be made in Northern Ireland, then the political parties and both governments must find a credible vehicle to establish and build on the agreement that does exist, and indicate how this outstanding aspect of the 1998 Agreement can be brought to completion. The Commission has completed its principal mandated task, by providing the final advice. At this advanced stage in the process, it now falls to a form of political negotiation that can deliver the required practical outcomes (if there is political will to do so).
Finally, Northern Ireland stills needs the sort of constitutional bill of rights envisaged in our peace process. One that is attentive to the particular circumstances of Northern Ireland (including the form of emergent constitutionalism sketched above), one that builds on the existing frameworks of protection, and is open to – and informed by – the ongoing global dialogue on rights and equality. As welcome as giving further effect to the European Convention on Human Rights is, as important as it remains to defend the progressive floor created through the Human Rights Act, should this be the height of our ambitions for a post-conflict society like Northern Ireland? Securing a new constitutional Bill of Rights will require political leadership and practical mechanisms that can promote negotiated political outcomes (for surely that is where the challenge now rests). If there is any hope for this process perhaps it rests in always reminding ourselves how far we have already come.
Colin Harvey is Professor of Human Rights Law at Queen’s University Belfast.