UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Anne Smith and Colin Harvey: Where Next for a Bill of Rights for Northern Ireland?

On the 10 December 2018 we launched the findings of our research project funded by Joseph Rowntree Charitable Trust (JRCT) about the next steps for a Northern Ireland Bill of Rights. The 10 December 2018 was symbolic as it marked both the 10th anniversary of the Northern Ireland Human Rights Commission’s (NIHRC) advice to the British Government (as mandated under the Belfast Agreement/Good Friday Agreement-the B/GFA) and the 70th anniversary of the Universal Declaration of Human Rights.

To help promote debate and progress the Bill of Rights, this project produced a draft model Bill of Rights based on the NIHRC’s 2008 advice. The idea was to turn the NIHRC’s recommendations into something that looked like draft model legislation. The report notes five key findings and makes 10 recommendations. It should be read in the context of the current human rights and equality crisis in Northern Ireland.

The publication of a draft legislative model Bill produced several responses. First, the draft model Bill was welcomed by participants as a meaningful contribution. Second, most participants felt that the draft model Bill did not go far enough regarding certain rights/areas and noted that the NIHRC’s advice was submitted 10 years ago. As such, while much of the advice remains persuasive and holds, and the extent to which the NIHRC included a full range of rights is impressive, the advice was also the subject of disagreement. It was, however, a compromise document then and there are areas where further thought is needed, including for example, women’s rights, including reproductive rights; stronger provisions on children’s rights; a stronger equality provision, with particular emphasis on disability and the need to protect younger people; refugee rights; and marriage equality. Although the report notes that there has been public comment about the extent of the advice, we believe this has clouded and obscured the voices of those who still believe the advice never went far enough. The advice was and remains a compromise.

A third finding is that Brexit has created a receptive environment for putting the Bill of Rights centre stage, to help ensure there is a legal framework in Northern Ireland that will assist in clarifying and underpinning social, economic and citizenship rights, among other things. In light of Brexit, the draft model Bill therefore needs to be updated and augmented to reflect the changing particular circumstances in Northern Ireland. The following rights/issues were highlighted during our discussions (some of which are impacted by Brexit): citizenship equality; freedom of movement; equivalence of rights on the island of Ireland; EU citizenship rights; and voting rights. The report also highlighted that close attention should be paid to all aspects of the B/GFA mandate when taking this work forward. The focus on the term ‘particular circumstances’ of Northern Ireland should not distract from the other aspects of the remit, for example, the need to consider ‘international instruments and experience’.

Several participants also referred to another significant source of rights protection under threat, namely the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA). The British Government has committed to repeal the HRA and replace it with a British Bill of Rights; it has even referred to possible withdrawal from the ECHR. While such a threat has been delayed due to Brexit, it appears to be only temporary, and this raises the spectre of a further lowering of the threshold of rights protection and further undermining the B/GFA. The final key finding is that Brexit, combined with the repeal of the HRA and possible withdrawal from the ECHR, simply increases the need for an inclusive and comprehensive Bill of Rights.

The report then shows how a Bill of Rights could be one ‘solution’ to the plethora of current rights and equality challenges, and makes a number of recommendations including, the need for the Bill of Rights process to be acknowledged and celebrated as a significant contribution towards fostering a robust human rights culture in Northern Ireland.  As envisaged in the B/GFA the advice submitted by the NIHRC, and all associated contributions towards the creation of a Bill of Rights should inform the next steps. There is no need or desire to start from a blank page.

The report also notes that the failure to give effective domestic legal force to the concept of equal citizenship and the rights/equality components of the peace process has disturbing, ongoing and underreported consequences. It has contributed more than is often acknowledged to the societal and other pressures on the power-sharing institutions. This is what we term a ‘formalisation failure’ with respect to core concepts; the pursuant unwillingness of statutory and other institutions to intervene has left major principles of the peace process to be fought out in the political arena, with familiar and predictable outcomes. The attempt by the NIHRC to confront this trend, in its advice, has never been adequately recognised.

The Bill of Rights should be taken forward as Westminster legislation in the way provided for in the NIHRC’s advice (HRA plus). This should not prevent preparatory initiatives that seek to build momentum or provide clarification. Any such work must commence from completed documentation and not be a further exercise in prevarication, obstruction and delay. This fact is also no impediment to the Assembly and Executive advancing specific human rights and equality goals within the context of this overriding constitutional framework. In particular, the Northern Ireland Assembly and Executive should be proactive and imaginative in their work of ‘observing and implementing’ existing international human rights obligations.

The British and Irish Governments have a responsibility as co-guarantors of the B/GFA, to address this outstanding element of the B/GFA. The British Irish Intergovernmental Conference (due to meet again in Spring 2019) provides a formal setting for such work. We accept that there are competing views about the status of the process, and how it might be taken forward. However, our view is that it is a reasonable expectation, flowing from a generous and purposive reading of the B/GFA (and subsequent developments), that a Bill of Rights enacted at Westminster would be the final outcome. In other words, we agree with those who believe this is an outstanding legacy issue that requires urgent attention.

Finally, the report acknowledges that the process, since inception (officially launched on 1 March 2000) has been marked by a lack of cross-community party political consensus. That remains a major obstacle to progress, and will present a formidable challenge to, for example, any new ad hoc Assembly Committee (referred to in the leaked draft ‘agreement’ document) that is established. It was apparent throughout, however, that unionist/nationalist divisions did not always neatly map on to the views of individuals and communities. If a new political process can unlock progress and break the current stand-off then it can be tentatively welcomed, but questions will remain about how it will be structured, how participation will be ensured and, perhaps of most significance, how an acceptable outcome will be delivered.

We share the view, heard often in our discussions, that we should be ambitious for human rights and equality in Northern Ireland and that the time is right to re-open this conversation. For this to happen both the British and Irish Governments, as co-guarantors of the B/GFA, must adhere to and fulfil their international obligations to ensure the progression and the eventual implementation of a Northern Ireland Bill of Rights.

Dr Anne Smith, Transitional Justice Institute/School of Law, Ulster University

Professor Colin Harvey, Queen’s University Belfast

(Suggested citation: A. Smith and C. Harvey, ‘Where Next for a Bill of Rights for Northern Ireland?’, U.K. Const. L. Blog (6th Feb. 2019) (available at https://ukconstitutionallaw.org/))

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