Home > Commentary > Whither the Bill of Rights?

Whither the Bill of Rights?

StormontToday Aoife Nolan highlighted that the Northern Ireland Human Rights Commission (NIHRC) published their response to the Government Consultation Paper earlier this week. NIHRC wholly rejected the general tone and content of the Government’s paper and pointed out some of its most glaring inconsistencies. It appears from the NIHRC response that the Government has:

  • Attempted to drastically curtail the scope of the Northern Ireland charter by dismissing out of hand any rights (eg social, economic and cultural rights) that cannot be simplistically linked to the Troubles (though many such rights were, of course, violated during the conflict). The Government paper instead claims that such rights should be analysed in the UK rather than the NI context.
  • Engaged in double-think by on the one hand criticising the broad scope of the NIHRC proposals while on the other hand complained that many of the suggested rights are already ‘protected’ by a patchwork quilt of secondary legislation and policy documents.
  • Utterly (and/or deliberately) misunderstood or misrepresented the nature of the project by failing to appreciate that the protection of rights by such a patchwork quilt is not sufficient to meet the aspirations of the Belfast Agreement. It is clear that NIHRC have in mind a constitutional charter, whereas the Government would be satisfied with the bare minimum protection.

One can’t help but think that the proposed Bill of Rights is becoming a ‘political football’ ‘collateral damage’ ‘insert-cliché-here’ in the electoral jousting of the Labour and Conservative Parties. As will be recalled from my previous post here, the Bill of Rights is approaching its due date at a time when human rights is becoming a four letter phrase in Britain. The general tenor of the Westminster debate tends to range from indifference to outright hatred of the Human Rights Act. The idea that Northern Ireland might be about to adopt a charter that goes further than existing law in Britain or Ireland appears to go largely unnoticed.

For example, in an uncharacteristically myopic op-ed in The Times today, Vernon Bogdanor argued that

In Northern Ireland, the very idea of a “British” Bill of Rights might antagonise the nationalist community and unpick the delicate settlement reached in the Good Friday agreement.

It would be necessary, therefore, to secure the consent of the devolved bodies to Bill of Rights. That would not be easy since neither the Scottish National Party nor Sinn Féin would wish to agree to something that was “British”. But, unless they were involved in the negotiations, they would not accept a British Bill of Rights as legitimate.

Bogdanor is correct, of course, in pointing out that Sinn Féin are unlikely to be fans of a ‘British’ Bill of Rights. But he is short-sighted in that his piece makes no reference to the Bill of Rights for Northern Ireland. Much of the debate in Britain appears to be driven by the rights scepticism that is endemic in England where the Human Rights Act is often portrayed as a rogue’s charter. However, as Afua Hirsch notes…

This is not the view in Northern Ireland. As is so often the case in societies where violations of civil and political rights are a recent reality, there is a dynamism around human rights there that is almost unrecognisable from England. The question in Northern Ireland is not whether human rights protections should be repealed, suspended, or “left on people’s doorsteps” but how much much further they should go, and whether the law should protect the right to housing, work and education – socio-economic rights that are barely even discussed in Great Britain.

Northern Ireland was promised its own Bill of Rights, to reflect its “particular circumstances”, in the Good Friday Agreement. The resulting consultation is an exercise England could learn from, with thousands of responses and a wide range of views genuinely reflected. Despite obvious divisions, there is evidence that 83% of people in both Protestant and Catholic communities support Northern Ireland’s quest for its own Bill of Rights.

Instead the Northern Ireland Office stands accused of offering people in Northern Ireland a “pale shadow” of that. Human Rights Groups say that they are “dismayed” with the government’s response, and that any attempt to link Northern Ireland’s Bill of Rights with the development of a new “British Bill” would be nothing less than a breach of an international peace treaty.

Antipathy towards human rights is not, of course, a strictly English phenomenon, as another recent contribution to the debate from Belfast makes clear. However, the development of a Bill of Rights for Northern Ireland – a proposal which may have over 80% support in that jurisdiction – should not fall victim to English electoral politics. The Consortium that supports a strong Bill is a broad one and crosses the divide of the two main communities. It would be a shame if the prospect of a robust and progressive charter for one island (or part of it) was undermined by short-term politics of the other island (or part of it).

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  1. commentator01
    February 19, 2010 at 10:23 am

    A few follow up comments to Cian’s piece, particularly focussing on the notion of the BOR as a ‘political football’:

    (1) The Bill of Rights has undoubtedly been reduced to the status of a political football in the Northern Irish political context. It is notable that, despite consistently expressing enthusiasm and support for a BOR, Sinn Fein did not make the introduction of such a Bill a condition for their acceptance of the Agreement at Hillsborough Castle earlier this month. While there are high levels of active opposition to a BOR on the part of most Unionist parties (with the PUP being a notable exception), it is unfortunate and significant that the supposed political ‘supporters’ of such a Bill (and particularly Sinn Fein) are not pursuing all the avenues available to them to advance it. Furthermore, the whole-scale and repeated dismissal on the part of Unionist Parties and the Alliance Party of the evidence of broad, cross-community support for a NIBOR on the basis that ‘that’s not what we are hearing when we visit people’s doorsteps’ means that there is evidence of large gap between the views of the people of NI (when actually canvassed on the issue of a BOR) and that of the political parties who claim to represent them.

    (It should be noted that the ‘doorstep’ argument only extends to the fact that voters are not unilaterally volunteering statements in favour of a BOR when politicians call to their door. It does not mean that those politicians have actually raised this issue with voters in order to explicitly gauge their views on the issue. Thus, the most that such politicians can claim is that they are not aware of the level of support amongst their supporters for such a proposal. Given the importance of the issue of the BOR it is arguably a serious failure on the part of politicians not to actively and systematically seek out the views on that issue of those who vote for them).

    (2) Can one suggest that the BOR for NI has become a ‘political football’ in the electoral jousting of the Labour and Conservative Parties? Not really.

    Given the statements of the Conservatives in relation to their alleged intention to repeal the HRA, it seems almost unfeasible that the introduction of a BOR for NI will take place if the forthcoming election results in a Conservative victory, given their alignment with NI political parties which have consistently opposed such a Bill. (I say ‘alleged intention to repeal the BOR’ because (a) it is unclear whether the Conservatives will, in fact, follow through on this if the party enters government) and (b) the extent to which such a repeal is possible is arguably legally complicated by the role played by the Convention with regard to devolved regions). It thus seems that a NIBOR is unlikely to feature on the Conservative Party’s consciousness unless it can be used to concretise political support for them in the province and/or to strengthen their links with the UUP (and, more recently, the DUP).On 5 February 2010, the shadow justice secretary Dominic Grieve. According to Belfast Newsletter, Grieve stated that the Conservatives instead believed there should be a UK Bill of Rights, with a Northern Ireland section, to replace the Labour Government’s Human Rights Act. Much will depend, of course, on what form such an ‘NI section’ would take. However, given Grieve’s claim that the NIHRC’s advice went a long way outside the remit that had been laid down for it, it seems highly unlikely that any such section would be extensive. Gieve claimed that there was ‘no desire” for implementation of the wide-ranging socio-economic proposals put forward by the NIHRC – a claim that would be strongly contested by a wide range of actors both political and non-political in NI.

    Furthermore, the Labour Government’s failure to include a reference to the BOR in the Queen’s Speech has made it clear that the BOR for NI is not a priority for that party either – a fact that is reinforced by the weakness of the NIO consultation document. That said, the ‘nonalignment’ of the Labour Party to a particular NI political grouping does leave greater scope for the advancement of a separate NIBOR under a Labour Government – albeit that this will be complicated by an apparent resistance of the government to what the Bill of Rights Forum, the NIHRC and civil society wish to see included in such as Bill.

    Ultimately, given that the Northern Ireland Agreement makes it clear that the BOR will be Westminster legislation, there is no question of NI being in a position to ‘adopt a charter that goes further than existing law in Britain or Ireland’ without support of the party in government in Westminster.

    (3) Unfortunately, there is no doubt that political discussion of a BOR ‘for Britain’ (and subsequently ‘for the UK’) has had a very negative impact on the development of the BOR for NI. First of all, as the Joint Committee of Human Rights highlighted in its 2008 report, the use of the language ‘a Bill of Rights for Britain’ was highly problematic for those within the Northern Irish society (not simply ‘Sinn Fein’) who do not identify themselves as British. (http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/165/16506.htm)

    Second, the introduction of a discussion of a British Bill of Rights at the same time as the Bill of Rights Forum (which provided recommendations to the NIHRC as to what should be included in a BOR), complicated the situation for those involved in the BOR process from a unionist perspective. As Brice Dickson stated to the Joint Committee:

    ‘current talk of a British Bill of Rights is at the very least complicating the process in Northern Ireland, and I gather that there is now talk of a UK Bill of Rights as opposed to a British Bill of Rights, and you can appreciate, I imagine, that the use of those terms is itself a complicating factor in Northern Ireland where there are certain politicians who identify with the British way of doing things’.

    It is possible to go further and say that discussion of a ‘British’ bill of rights made it extremely difficult for those (few) members of Unionist political parties open to the notion of a separate BOR for NI to make arguments in favour of such a regional BOR when there was a ‘British’ development could be looked to instead. The amendment of the government’s language from a ‘British’ Bill of rights to focus on the ‘UK’ in its 2009 Green Paper on ‘Rights and Responsibilities: Developing Our Constitutional Framework’ (which included a statement that ‘Importantly, the Government does not wish the public debate around a UK instrument to detract from the process relating to a potential Bill relating to the particular circumstances of Northern Ireland’) was too little, too late to address this issue.

    In sum, it ultimately seems highly likely that the ‘the prospect of a robust and progressive charter for one island (or part of it)’ will be undermined by short-term politics of the other island (or part of it)’.

  2. ciancmurphy
    February 19, 2010 at 10:33 am

    Thanks. I suppose my language let me down a little in that I agree entirely with your second point. ‘Collateral damage’ might be the most appropriate metaphor.

  3. Gavinicus
    February 19, 2010 at 4:45 pm

    With respect, the whole project was always “a political football”. It was widely accepted as a sop to the nationalist/republican negotiators at the Good Friday talks, and was never ever wanted by the Unionist community. The Good Friday agreement only has a one liner on it, no detail, no scope and, therefore, the practicalities were always going to be nearly impossible.

    Secondly, if one was to be pragmatic about it, the NIHRC should never have included ESCR rights in their advice. They will never be acceptable to either a New Labor or Conservative Government. You can fight about the rights or wrongs of that all your want, but it remains a fact.

    Thirdly, I fail to see the logic or practicality of having a sub national human rights charter, which would, if brought to the fruition the NIHRC would, in some areas, substantially increase the “rights” protected in one segment of the UK, and not available in another.

    When this is finalised, in whatever shape, wait for the bun fight which ensues about the proposed ALL IRELAND Charter of Rights.

    No Irish Government will EVER accept Court enforceable ESCR rights or anything that surpasses the rights provided in the ECHR.

    Sorry, but I have my pragmatic hat on today!

  4. February 19, 2010 at 7:24 pm

    Gavincus, I tend to agree esp. re difficulties that will arise if anything like an enforceable legal instrument is proposed as a Charter of Rights. We already have international rights, EU rights, constitutional rights, and statutory rights (ECHR Act 2003). Where would a Charter fit in there? More importantly, what is the functional argument for one (quite apart from the rhetorical argument).The mind boggles. Did you see this guest post from Suzanne Egan? https://humanrightsinireland.wordpress.com/2009/12/02/egan-on-a-charter-or-rights-for-the-island-of-ireland/

    As for the BOR process…the failure of UK politics to take into proper account the impact of their decisions on devolution in all kinds of ways, not merely the BOR, is mind boggling and frustrating.

    • Gavinicus
      February 20, 2010 at 1:59 am

      Hi Fiona,

      Yes, I did see Suzannes post and her original research and thought it excellent. The point of functionality is most important in terms of a , I think. Is it going to supersede the ECHR? In what areas? Where do the international treaties come into it? The only enforceable and obvious gaps in human rights protections in NI are ESCR rights, and, as indicated, that will never happen.

      Down here, such inclusion of ESCR rights would put the constitutional position, as enunciated by Hardiman J. in “Synott” etc in question. Would it be a sub constitutional framework, if so, why bother, or would it trump the Constitution in that area only.

      It’s a mess in the making!

  5. ciancmurphy
    February 19, 2010 at 8:44 pm

    I don’t think a justiciable All-Ireland charter is feasible (is it even possible). But as a political statement – one which might perhaps recognise the ‘particular circumstances’ caused by the mix of traditions on the island – it might be a good thing.

    • Gavinicus
      February 20, 2010 at 1:35 am

      I don’t see your point, with respect, Cian.

      What “mix of traditions” do we have in the Republic that would necessitate a Charter? We have a very settled community, in the main, no antagonism, strife or inter-communal disagreements.

      If it is introduced, and it’s a BIG if, as the original charter consultation in the Republic garnered only a reply from Sein Fein, amongst the political parties, I would challenge anyone to provide a cogent argument for it.

      If, on the other hand, it is merely some declaratory statement, with no enforceability, what on earth is the point??

      • ciancmurphy
        February 20, 2010 at 4:29 pm

        Thanks Gavinicus. I think our differences lie in our assumptions as to who an All-Ireland Charter might potentially serve and in relation to the means by which enforcement can be achieved.

  6. Commentator01
    February 20, 2010 at 12:02 pm

    To return to the BOR:

    Gavinicus, the problematic mandate for the Commission alone is considerably more than a ‘one-liner’ in the Agreement. Furthermore, the suggestion that the BOR was a ‘political football’ while all other elements of (the multi-political party) Agreement were not is blatantly incorrect. Other ‘sops’ to both communities were implemented effectively so questions can legitimately asked about why the BOR is not being taken forward and a wide range of political actors both nationalist and unionist (and other, in the form of the Alliance Party) can be legitimately criticised for their failure to do so.

    With regard to ESCR and the Irish constitution, the right to education is constitutionally enshrined and the subject of a considerable body of litigation/adjudication. There is also a range of judicially-identified unenumerated ESR. Hardiman’s views are well-known but there is a not inconsiderable body of ESR jurisprudence under the Irish Constitution – a fact that Hardiman chose to effectively ignore in advancing his (controversial and contestable) views on the question of ESR adjudication in Sinnott and TD. The ‘constitutional position’ on ESR is thus up for debate. However, even if it were accepted that this was the ‘constitutional position’, the constitution is a living instrument so such a position is always open to recalibration through further judicial interpretation, etc. For instance, it will be interesting to see how the Irish courts’ attempts to deal with the ESR set out in the EU Charter of Fundamental Rights and Freedoms will impact (if at all) on their approach to ESR-related issues in other non-EU legal contexts.

    With regard to your view that you ‘fail to see the logic or practicality of having a sub national human rights charter, which would, if brought to the fruition the NIHRC would, in some areas, substantially increase the “rights” protected in one segment of the UK, and not available in another’, that is your view and it is not one shared by a wide range of people seeking to advance a BOR in NI. Indeed, the existence of regional human rights charters in Australia and Canada (to name just 2 jurisdictions with a sub-national human rights charters) certainly belies such an opinion.

    Finally, it should be noted that the NIHRC is a national human rights institution. According to the Belfast Agreement, it was required to ‘[draw] as appropriate on international instruments and experience’. ‘Pragmatism’ aside (a ‘pragmatism’ which is again contestable), the argument that the Commission could or should have ignored ESCR in their recommendations – given the role played by ESCR violations both in terms of the cause of the conflict and the outcomes of – such fails to take account of the Commission’s status as a NHRI – not a political body.

    • Gavinicus
      February 20, 2010 at 2:04 pm

      With respect, and one presumes you have some connection to he NIHRC, much of your argument is polemical and ignores practicalities. The fact is that the BOR “is” a political football, as is the Commission itself, unfortunately. You cannot just say, “well, that does not matter, it should not be”. It is and you have to deal with it. Again, no Government in their right mind in either Island will accept a judicable charter/bill that contains enforceable ESCR rights in so far as it would allow the court to direct state expenditure in any particular area. I await the day that the Irish Supreme Court decides in any other way. I will, literally, eat my hat! By the way, I did not suggest that all the other elements were not a sop. There were many, including the setting up of the two Commissions. There was years of debate in the Republic about such a move, and until the agreement, it would have been many more years before we got one. I am very glad that we did by the way!

      I quite realise that my view on the practicality of bring forth a sub national charter for NI are not shared by those involved seeking to advance a BOR in NI. The issue is that there is a wide corpus of opinion that does not wish one. Again, that is another practicality. Additionally, there is no consensus as to what such a charter should contain. There are those who absolutely oppose ESCR rights in such a bill.

      As far as the All Ireland Charter is concerned, the GFA only mandates the Joint Committee to consider whether there should be an all ireland charter at all. Not a mandate to bring one forth for consideration.

      Are you suggesting that the Commission should just plow it’s own furrow and ignore anyone who does not agree?

      In relation to the last paragraph, I fully realise the role of an NHRI. The issue is that the Commission is required to draw from suitable international experience etc, but also,surely, it is warranted for it to apply it to the situation in which it finds itself.

      I am firmly of the view that a far more practical approach, rather than high minded principle, would have advanced a charter much further along than it is to date.

  7. ciancmurphy
    February 20, 2010 at 4:31 pm

    Just a further plug for the event at my alma mater on Monday night:

    London-based readers of this blog can hear Colin Harvey’s most recent thoughts on this matter, along with those of Aileen McColgan (Professor at King’s College London & barrister at Matrix Chambers) at a seminar at the Edmund J. Safra Lecture Theatre, King’s College London (Strand Campus) at 6:30pm on 22 February 2010.

  8. commentator01
    February 21, 2010 at 12:01 pm

    Gavinicus, your statement ‘one presumes you have some connection to he NIHRC’ only serves to demonstrate a presumption that someone who might not be prepared to be wholly dismissive of the efforts of the NIHRC has to be in some way connected to it. I can assure you that that is not the case. However, the notion that somehow my having a connection to the NIHRC would somehow render my comments less legitimate or worthy of less weight (which seems to be what you are implying) is unsustainable anyway.

    Your comment that my views are ‘polemical’ and ignore ‘practicalities’ are patronising and demonstrate a misreading of my posts. I am fully aware of the ‘practicalities’ that you identify with regard to the BOR process – both in terms of public opinion, the political and legal contexts. My awareness of them does not, however, result in my assuming (as you appear to) that the BOR should be given up as a lost cause or that the value of any such BOR is to be solely weighed in terms of the smoothness of the process giving rise to such.

    As I stated previously, the Commission is a NHRI. As a NHRI, it made strong recommendations in its advice to the NIO for a BOR for NI that were generally reflective of international human rights law. Indeed, the recommendations were also consistent with the international law obligations assumed by the UK in ratifying, amongst other things, the CRC and ICESCR. Based on the 2001 consultation that the Commission carried out (and it is notable that no other such widespread consultation on the BOR has been carried out since), the NIHRC’s 2008 recommendations were certainly consistent with public opinion. Public opinion in favour of a BOR and the inclusion of ESCR in such has been borne out by other, much more limited, recent polls. The only way in which it can be effectively argued that there are high levels of public (as opposed to political) disagreement in relation to (a) the existence of a BOR and (b) the inclusion of ESCR is through the holding of another such consultation or at least some other wide-ranging effort to gauge public opinion on questions (a) and (b) (and, indeed a range of other questions) in an adequate way.

    The key ‘practicality’ argument that is raised with regard to the BOR process in NI is the lack of ‘cross-party support’ for the BOR within NI- not a lack of ‘cross-community support’. I would agree that there is a ‘wide corpus’ of political opinion that does not wish a BOR- however it is simply impossible to claim legitimately at this point that ‘there is a wide corpus of opinion that does not wish one’. It is the lack of political support for the BOR that is the biggest challenge to the introduction of the BOR – not some general, ungauged public opposition to such. I fully agree that ‘there are those who absolutely oppose ESCR rights in such a bill’. Again, my comments in this and the previous paragraph apply with regard to who ‘those’ are. The same points also apply with regard to ‘consensus as to what such a charter should contain’.

    With regard to your comment that ‘no Government … in any particular area’: it is worth noting that court decisions frequently have implications for and/or direct ‘state expenditure’ to varying extents. This is not unique to instances of ESCR adjudication. Indeed, based on comparative experience from countries with enshrined ESCR, there is no reason to assume that the establishment of justiciable ESCR would result in or necessitate courts ‘directing expenditure in an area’. (By ‘area’, I assume you mean a specific policy area rather than in a particular factual situation involving an individual complainant before the Court). However, I agree with you that the UK government (and, fundamentally, it is the UK government that has the key role to play with the NI BOR) is still highly resistant to the notion of justiciable ESR in either a regional or UK-wide BOR and that this would pose a serious challenge to the inclusion of ESR in a BOR. The notion, however, that the Commission should have tempered its advice to exclude ESR in order to keep Westminster “onside” is a worrying on, given the implications that such an approach would have for the NIHRC’s activities as a NHRI in a range of other areas.

    (On an aside, I would recommend that you deepen your familiarity with Irish constitutional law relating to ESCR. The fact that the Irish Courts have been prepared to adjudicate enforceable ESR without being prepared to direct state expenditure in a particular policy area serves to demonstrate that legally enshrining ESR will not inevitably necessitate such judicial behaviour. This is also storngly demonstrated in comparative ESR jurisprudence).

    I did not address the All-Ireland Charter in my comments as I view this as a separate element of the Agreement and the BOR process is certainly not dependent upon it. The processes are at very different stages. Indeed – I think it is fair to say that there is essentially no ‘All-Ireland Charter process’ at the moment. This is largely due to the decision of the NIHRC and other parties to focus on concluding the BOR process before moving on to the next step, whatever that may be.

    Finally, you argue that ‘a far more practical approach, rather than high minded principle, would have advanced a charter much further along than it is to date’. The question is whether such a BOR – presumably unguided by ‘high minded principle’ such as human rights law – would be worth having.

    • Gavinicus
      February 21, 2010 at 12:57 pm

      I am enjoying our conversation and certainly I did not intend to seem condescending in any way. BY connection to the NIHRC I did intend to communicate that you have some interest, had some input into the consultation etc. I did not in any way intend to imply that you were biased.

      Can we start again?? 🙂

      If I can take your points seriatim.

      1. Practicalities.

      The proposition is that there is to be a sub national human rights charter. Presumably an enforceable/judicable one. Otherwise there would be little point. My issues relating to this are varied.

      a. I fail to see a need for one. You now have, reasonably, stable power-sharing. About to have devolution of policing and justice, at last. From what one can judge, the ministers, acting in their ministerial capacity, seem to be doing a good job for the whole of the people. The only area, on which I think we might agree, there may be need for improvement in human rights protections, are in the area of ESCR rights. We have agreed, I think, that any enforceable rights in this area are pretty much a non-runner, and always were. In the circumstances it’s time to move on.
      I note that the NIHRC, along with other NHRI’s have now pretty formal relationships with the UN Monitoring Mechanisms, including the HRC. Perhaps a strengthening of this forum is a better way to ensure progress on general ESCR rights. I don’t mean to suggest that the Commission should not have recommended such, indeed the Commission in the Republic has similar views as to incorporation of ESCR rights. What I am intimating is that when it is rebuffed, people should move on. Politically it is a non runner and concentration should be given to areas where change can be effected. The point I am trying, and failing probably, to make, is that there is little point flogging a dead horse.

      b. I would take issue with the value of “consultations”. Generally, and I think this obvious, the only ones who will respond to such a consultation are those who are generally interested in such a process and those who are virulently opposed. The majority of the population are, one would have thought, uninterested and/or don’t care. I appreciate that is not a reason for not forwarding advice to the NIO, but I think overemphasis is laid on the process. I agree with you that some other consultation/method of gauging public views is warranted.

      2. Judicability of ESCR rights

      This is probably tangential to the overall conversation, but, and who is being condescending now!! 🙂 , I am quite familiar with Irish Constitutional Jurisprudence in the area. I quite realise that occasionally decisions have implications for expenditure. What I am trying to get at is that there is manifold opposition to claiming ESCR before the Irish Courts when such a claim would involve the Court ordering the State to fund certain areas. I appreciate that you are making the argument, which Gerard Quinn oft makes, that judicable ESCR rights does not automatically lead to expenditure, however, it’s not an argument the Irish Courts, nor any Government, would seem to accept.

      My final point, related to your last paragraph, is that, it would seem, that the NIO/UK Government has effectively filleted the advice. That could be as a result of outright hostility or lack of communication, or a combination. Whatever the reason, it would seem to me that the message was not communicated and/or understood. Whatever the reason, you now have a document that is not worth having in any event.

      Would appreciate your views as to the NIO reaction?

  9. commentator01
    February 21, 2010 at 2:02 pm

    I am certainly prepared to start again and I apologise for the unabashedly condescending tone of my ‘go learn about Irish constitutional law comment!’ – hypocrisy, thy name is commentator01!

    With regard to the NIO document, where to start…I think the major issue is that it is clear that the NIO made no effort to really engage with the Advice. The fact that the NIO failed to respond for 11 months and then produced such a limited and inaccurate document is very disappointing. I would endorse Cian’s views in his post. I would probably add that the poor quality of the document indicated a barely-disguised contempt on the part of the NIO towards to the Commission and others who have been involved in and contributed to BOR process so far.

    The tone/content of the consultation document was foreshadowed by Shaun Woodward’s public comments earlier this year that the Commission had exceeded its mandate (which were then expressly – and very publicly – contradicted/overruled by Westminster). However, while it was thus clear that the NIO was not going to be prepared to contemplate a BOR with as wide a content as that recommended by the NIHRC inclusion of ESR, the ultimate quality and approach of the NIO consultation document was genuinely a disappointing surprise.

    Perhaps most notably the NIO didn’t even attempt to adequately justify its interpretation of the mandate under the GFA. This was despite the fact that construal of the mandate was a (if not the) key sticking point/issue of debate throughout the process. Both the Forum and the NIHRC spent an enormous amount of time considering what the mandate means or might mean but the NIO hardly addresses it in their consultation document other than to say in one place that: ‘if such a right is to be considered as meeting the test of reflecting the particular circumstances of Northern Ireland and the principles of mutual respect for the identity and ethos of both communities, there would need to be evidence that the case for this particular right within Northern Ireland is demonstrably greater or different in nature to that in the rest of the UK, due to the particular circumstances of Northern Ireland’. However, it then fails to apply this test consistently to all the rights suggested by the NIHRC.

    Instead, it merely dismisses rights-related issues that the Government believes ‘are common across the UK and should therefore best be addressed at national level rather than solely in relation to Northern Ireland’. In one place (in the context of the right to health) the NIO highlights that ‘clearly, the legacy of the conflict forms a part of the particular circumstances of Northern Ireland, and the Government accepts that measures to address the impact of this legacy should be considered for inclusion in a Bill of Rights for Northern Ireland’. However, again, it fails to acknowledge or give effect to this point consistently throughout the document.

    I have just reread the NIO Secretary’s statement in the foreword of the consultation document that ‘What the Government has set out to do in this consultation paper is to take those aspirations – to which everyone could subscribe – and to see how they can be given legislative form through a Bill of Rights for Northern Ireland thus following through on our commitments in the St Andrews Agreement and, before that, in the Belfast Agreement’. Such a claim is unsustainable in light of the actual content of the consultation document.

    Another forthcoming development will be the outcome of the Westminster Northern Ireland Affairs Committee into the BOR for NI. Given the political make-up of that Committee, its conclusions can be largely predicted. Indeed, the motivation for this ‘parallel enquiry’ was arguably an effort on the part of those unhappy with NIHRC advice to have another bite at the cherry. In light of the fact that NIAC claims that its inquiry ‘will intend to feed into’ the NIO consultation process, I think we can expect further damage to be inflicted upon hopes for any move towards cross-party support for a NIBOR in the near future. That said, the clear political profile of the NIAC members means that the predictability of its conclusions will probably serve to strongly weaken their impact.

    What are your thoughts?

  1. March 13, 2010 at 10:25 am

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