UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Anne Smith and Colin Harvey: Continuing the Conversation about a Bill of Rights for Northern Ireland

The long journey towards a Bill of Rights for Northern Ireland continues. It is being referred to again in the current negotiations as an unimplemented element of earlier Agreements. We are taking forward a project funded by the Joseph Rowntree Charitable Trust with the aim of reflecting on the next steps. With this in mind we held an event in Belfast on 28 June 2017to renew and revisit the Bill of Rights for Northern Ireland. It was well attended, with several key stakeholders such as political representatives, the Northern Ireland Human Rights Commission, civic society members, academics and students present throughout. The seminar was chaired by Professor Rory O’Connell (Director of the Transitional Justice Institute, Ulster University) and Patricia McKeown, (Regional Secretary at UNISON).

At the event we launched a legislative draft of the Bill of Rights based on the advice submitted by the Northern Ireland Human Rights Commission. The idea was to turn the recommendations of the Commission into something that looks like draft model legislation. There are, of course, limits to any such project. First, we decided to start with the advice of the Commission. There were many contributions to this process, however, the Commission was tasked (under the terms of the Belfast/Good Friday Agreement and the Northern Ireland Act 1998) to take this work forward. It eventually delivered its proposals, and this seemed like a good place to start. Second, the Commission was divided, with two of ten commissioners (including the Chief Commissioner) dissenting from the final advice. Third, the proposals are now dated in parts; hardly surprising for a document that was submitted nearly 10 years ago. Fourth, and occasionally forgotten, the Commission’s final advice was a compromise. While much of the public criticism focused on the suggestion that the Commission had gone too far, the voices of those who said it did not go far enough need to be heard. And finally, there is the matter of capturing he intention of the Commission properly in legislation. The draft legislation thus remains work in progress, and will form one part of our project report in 2018.

The question has been raised whether the submission of the Commission’s advice simply ends the conversation. The UK Government responded and the process is now completed; joining a long list of ‘parked issues’ in the ‘too complex and difficult box’. This seems hardly credible given the extensive references to the Bill of Rights in the Agreement. Read that document again. There would appear to be a reasonable expectation that a Bill of Rights, reflective of the Agreement’s mandate, would one day appear.

It is worth a brief recap. What exactly did the Commission recommend? The basic starting point is that the advice is Human Rights Act plus; the intention being to supplement the Act rather that repeal and replace it. The supplementary rights include: equality and non-discrimination; democratic rights; identity and culture; victims’ rights; socio-economic rights; environmental rights; and children’s rights. The Commission took  the position that all these rights are capable of judicial enforcement.   The Commission adopted a number of innovative recommendations, including annual reporting to the Northern Ireland Assembly and the Westminster Parliament on progress as well as the establishment of a Human Rights Committee in the Assembly and a five-year independent review. The Commission also recommended that the Bill would apply to both the Assembly and the Executive and have vertical as well as horizontal application.

The Northern Ireland Office response to the advice was quite dismissive, and although there have been attempts to revive this project it is now largely stalled.

The publication of this legislative draft is our attempt to start thinking again about the Bill of Rights for Northern Ireland. We hope that it can return the debate not simply to the idea of a Bill of Rights in the abstract, but the detail of what it should contain. One of the tragedies of the Northern Irish process is precisely this absence of focused discussion on content. This is our contribution to help renew the discussion around what should be in a Bill of Rights rather than circular arguments about whether there should be one or not. It is a conversation that should and needs to continue to safeguard against the weakening of human rights standards post Brexit. After all, why would anyone not want to be ambitious for rights and equality in Northern Ireland?

Dr Anne Smith (Transitional Justice Institute, Ulster University), Professor Colin Harvey (Queen’s University Belfast)

(Suggested citation: A. Smith and C. Harvey, ‘Continuing the Conversation about a Bill of Rights for Northern Ireland’, U.K. Const. L. Blog (21st Jul 2017) (available at https://ukconstitutionallaw.org/))

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