Derry-born Professor Colin Harvey is Head of the Law School at Queen's University Belfast and a Commissioner on the Northern Ireland Human Rights Commission. In this article, written in a personal capacity only, he argues that it's time to deliver our Bill of Rights.
Would you like a Bill of Rights? One worthy of that name?
These are difficult and challenging times. The global recession has contributed to the creation of much hardship and uncertainty. New constitutional proposals can no doubt seem far removed fr
om the tough reality of everyday life. It need not be so. In fact, human rights are now more important than ever, as the social justice agenda becomes a pressing necessity.
In times like these, clear guarantees are required to protect us all. On December 10, 2008 (the 60th anniversary of the Universal Declaration of Human Rights 1948), the Northern Ireland Human Rights Commission submitted its final advice on a Bill of Rights. This was a significant and substantial milestone in a process that was launched (in Derry and Belfast) on March 1, 2000. The length of the process is evidence of the problems experienced, as well as how extensive it has been.
While considerable cross-community consensus appears to have been established, cross-party consensus on substance (all parties continue to express support for the concept of a Bill of Rights) is, so far, lacking.
Is anyone genuinely surprised? This has been evident throughout, and understandable given the significance of the issues. An independent Human Rights Commission will rightly leave party politics to others, and can only credibly concentrate on offering sound human rights-based advice anchored securely in its mandate. People would expect nothing less.
What is the basis for the project? The Bill of Rights debate long pre-dates the current process. It was only with the Good Friday Agreement, and St. Andrews Agreement, that the aspiration stood a genuine chance of being realised. The Human Rights Commission was tasked with providing advice to the Secretary of State which would supplement the European Convention on Human Rights and address, among other things, the particular circumstances of this society.
The problems experienced by the Commission are well documented. By 2003-04, the process was badly stalled. From 2005, momentum picked up again with a newly constituted Commission seeking to take the project forward. With the creation of the Bill of Rights Forum in late 2006 (following the St. Andrews Agreement) progress was once again being made. Although the Forum was unable to generate agreed recommendations, it did produce sustained debate between political parties and civil society on a Bill of Rights. Once the Forum Report was submitted in March 2008 the Commission worked to finalise its advice.
The self-imposed deadline of 10th December, 2008, was met. Part of this final stage included an agreed methodology, which established and explained how the Commission would approach the task. It was well received. The final advice was endorsed by eight Commissioners, with two dissents; simply confirming what the process had clarified – a diversity of opinion continues to exist on substance, as well as the meaning of the mandate.
What did the Commission recommend? The Commission proposes an inclusive range of civil, political, economic, social and cultural rights – from health, education and the environment to equality, democratic rights, identity and culture. These reflect international experience, but are carefully tailored to the particular circumstances of this society. Let's be clear. These are not abstract and vague aspirations. The enactment of these proposals would assist the wider project of changing this place for the better, by helping to empower and transform communities and therefore change lives.
Implemented
How would they be implemented? You will read and hear many scare stories about rights. The rights proposed by the Commission are intended to be implemented and enforced effectively, but they are not absolute. The advice includes a general limitations clause; it makes clear that there can be good reasons for interfering with and restricting certain rights. Most of the economic and social rights are subject to an obligation of progressive realisation. The advice recognises the vital role of the Northern Ireland Assembly and Executive.
This is not about handing power over to the judiciary, or ignoring the responsibilities that we all owe to each other. It will offer clarity about what our rights are, and what the role of different branches of government is in implementing and enforcing rights. A Bill of Rights - such as the one proposed - will in fact bring focus to debates around, for example, social justice, and ultimately enrich and strengthen our collective democratic life.
What happens now?
The advice is with the Secretary of State. Whatever debates will emerge, the Commission has succeeded in delivering Bill of Rights advice that is defensible in human rights terms. A consultation process may happen later in the year – too late it now seems for a legislative slot before the next general election in Britain.
We are often told that human rights underpin our 'new dispensation'. Yet we still have no Bill of Rights (or Charter of Rights for the island of Ireland). The new beginning to human rights protection remains outstanding; legitimate expectations from the Good Friday Agreement still not delivered.
Would it not be odd - given what we are consistently told about our 'new dispensation' - if a progressive human rights agenda, aimed at transforming this society for the better, is neglected or ignored? Let's hope that the British government will give us the chance to have our collective say soon.
