Dangerous Liaisons
by Austin Morgan
Fortnight April 2000
The Northern Ireland Human Rights Commission (NIHRC)-which has launched its consultation on a bill of rights for Northern Ireland-continues to be controversial. Rights are seen as generally a good thing by democrats, but some legal practitioners -preferring practical to declaratory law (and looking forward to working the Human Rights Act [HRA] 1998)-believe this proposal in simply the wrong idea from the wrong body at the wrong time.
First, this was not provided for in the Belfast Agreement. The NIHRC was asked (by Mo Mowlam on 24 March 1999) to consult and to advise on the-technically narrow-scope for defining supplementary Northern Ireland rights in Westminster legislation. The HRC, however, has prejudged the issue on which it is meant to advise after consultation.
That it is advice only which was sought is clear from section 69 of the Northern Ireland Act (NIA) 1998; while a legal challenge using subsection (7) is unlikely to succeed, the NNHRC's political campaigning for a bill of rights may well be found to be ultra vires subsection (9).
Second, it ignores the import of the HRA 1998-described by Lord Lester of Herne Hill QC as "the most significant constitutional measure since the Bill of Rights of 1688-89"-which was brought partially into force in Northern Ireland on 1 June 1999, and will apply throughout the United Kingdom from 2 October 2000.
The Belfast Agreement was achieved when the human rights bill was before parliament, and it is now the HRA 1998-incorporating the remedies of the European convention on human rights-which sets the context for all human rights law and practice in Northern Ireland.
Three, Northern Ireland remains an integral part of the United Kingdom; any special treatment has read-over implications for Great Britain. The conduct of the NIHRC in its first year is unlikely to speed a kingdom-wide commission. Do legal reformers in the rest of the state want such a local bill as the basis of their home-grown written constitution in the next ten or twenty years?
Four, a bill of rights-having been supported by most political parties-became the project of the radical Campaign on the Administration of Justice (CAJ) in 1993, though it never made clear this could come only from Westminster. The CAJ has yet to endorse the concept of consent (it is constitutionally neutral), and (despite its opposition to political violence) continues to refuse to acknowledge that paramilitaries have been the greatest abusers of human rights.
The human rights community latched on to the European convention on human rights, because it allowed citizens to petition against state violations (anti-statism, of course, is more common among the minority community).
But the so-called horizontal effect in human rights law, which, at Strasbourg, allowed an abuse by a person to become a violation by the state (through inadequate law or administration), may well, under sections 6 and 7(1)(b) of the HRA 1998, allow an applicant for the first time to secure a remedy in a Northern Ireland court against the actual abuser of his human rights.
Through an exercise of political patronage in early 1999, Mo Mowlam handed the HRC to the CAJ. This was in spite of the NIA 1998 providing that "the Commissioners, as a group, [were to be] representative of the community in Northern Ireland".
Paul Murphy MP told parliament: "I think that all the world knows what traditions and communities we are considering: the broad Unionist community and the broad nationalist community". While radical and nationalist lawyers were appointed commissioners, not one of the ten had any identifiable connection with the majority political community.
"It is still my personal regret", said David Trimble, First Minister, on
10 February, following a meeting with the NIHRC, "that the Commission's membership does not reflect greater cross-community representation". (This
meeting allowed the NIHRC to comment on guidance on the HRA 1998 for civil
servants. But, as Denis Haughey had revealed on 18 January, this document
had been used to train senior officials over a matter of months.) |
