The price of a Bill of Rights
From: Fortnight April 2000
Enforcement and innovation will be essential aspects of the successful implementation of an effective human rights programme, argues COLIN HARVEY.
It would not appear to be the best time to discuss delivering the promise of the Belfast Agreement. The suspension of the institutions disproved those who were convinced that the Westminster model of the constitutional law was finished. The model would appear to be alive and well. The Agreement is, however, far from finished and there are many aspects of it which we should expect to be delivered effectively, In particular the human rights and equality agendas are still in operation. The human rights agenda will gain in prominence in the coming months as the Northern Ireland Human Rights Commission embarks upon its consultation process on drafting a Bill of Rights. The Commission clearly places great store by this process and it is refreshing to see a body still enthused by the human rights potential of the Agreement. If only others could follow the Commission's lead.
The Bill of Rights exercise is tied to the language of the Agreement. The Agreement talks of rights supplementary to those contained in the European Convention of Human Rights which should reflect the particular circumstances of Northern Ireland. There is also reference to the principles of mutual respect and parity of esteem in relation to both communities in Northern Ireland. There will be several keys themes in this exercise including: participation; the rights to be protected; enforcement; and drafting. As the Commission made clear in its launch on 1 March the process will include a strong participative component. This is welcome, people should be asked what they would like to see included. This will, however, involve moving beyond the usual suspects to talk to those individuals and groups rendered invisible by the dominant stories told about society here. For example, ethnic minorities will have something to say about the notion that human rights can be confined to two communities only.
As well as determining what people want the exercise should also aid in the promotion of a rights culture. The tricky part will be to avoid a descent into the purely instrumental use of human rights. There are plenty of people around who are interested in human rights so long as they get what they want. The hard part of entering the dialogue about human rights is to accept that on occasions this will not happen. Admittedly this can be tough, but using human rights talk signals that you want others to have rights too. This is often conveniently ignored.
One of the more frequently heard neo-conservative criticisms of human rights discourse is that it fuels division. In this understanding rights talk encourages egotism and destructive selfishness and thus damages communal existence. Those who suffer human rights abuses are rarely heard to make these patrician arguments. Human rights are not just about the rights that I have, they are the rights that we grant to each other. There is in this a communal as well as individual element. However, in Northern Ireland consensus on these issues than is often assumed. Who, for example, could disagree with a right to adequate housing, a right to clean environment, a right to just and favourable conditions of work or a right to social security? A difficulty will be deciding whether this Bill of Rights will have a narrow or expansive focus. The European Convention on Human Rights is clearly weak in several areas, including economic and social rights; the right to equality; minority rights; and environmental rights. There is a chance in this process of real innovation and the possibility of drafting an instrument which we could all be proud of. This chance to be innovative should not be lost.
Enforcement of human rights will be a big theme in this century. In many
cases the framework for protection is there enforcement mechanisms are not,
or are insufficiently strong. Human rights standards will gain respect when
they are seen to make a difference to people's lives. This requires effective
enforcement mechanisms. Human rights activists may well need to turn to
their friends in the environmental movement for help on this one. The consultation
process should thus include consideration of enforcement. For example, a
new constitutional court staffed with those with a sincere commitment to
human rights would send the right message. If we are not to have the human
rights transition that never happened we should be thinking creatively about
new legal and political mechanisms of protection. We should expect our legal
community in particular to embrace openly the transition to a human rights
culture. This links into the more technical aspects of drafting. Once we
have decided on the rights we want, and the constitutional significance
we want them to have, this still has to be translated into legal form. The
consultation process will thus have to include the collation of standards
from other states. The purpose would not be to constrain but to enable critical
thinking about the language of human rights law. |
