Building
a Human Rights Culture in a Political Democracy: The role of the Northern
Ireland Human Rights Commission
by Colin Harvey
The relevant section merits full citation:
"The new Northern Ireland Human Rights Commission... will be invited to consult and to advise on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and - taken together with the ECHR - to constitute a Bill of Rights for Northern Ireland."
"Among the issues for consideration by the Commission will be: the formulation of a general obligation on government and public bodies fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland; and a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors."
This section of the Agreement structures the debate. What is notable is
the mixture of consociational and other elements in this passage. Rather
than follow the language of a new beginning or a fresh start, thus permitting
the Human Rights Commission to take a dynamic approach, the participants
have come up with a formulation which enables and limits. On the enabling
side it is evident that the passage provides for a instrument which goes
beyond the European Convention. The Convention is recognised to be weak
in several areas, on a right to equality for example. It is also primarily
confined to civil and political rights. The section also enables the Commission
to take account of international instruments and experience.
Arguments have been made for and against an expansive approach to this exercise.
Those wishing to see the best possible Bill of Rights are hampered by the
limiting language of the Agreement. However, the language of the Agreement
is not as limiting as might be thought. This section must be read as part
of the overall stress on a new beginning and a fresh start and the importance
of the vindication of the human rights of all. It would scarcely accord
with the new beginning if a narrow approach was adopted here. There is an
additional problem. The voluminous literature on Northern Ireland has not
provided us with a consensus position on the "particular circumstances of Northern Ireland". It is precisely this "context" which is contested. To
focus on this phrase, and give it undue weight, may result in an unproductive
and divisive debate. Given this, the issue should be which rights a modern
Bill of Rights must contain, given current developments and international
experience. This raises its own problems, in particular, the rights to be
included and the institutions mechanism of enforcement. For example, it
has been suggested that a new constitutional court might be necessary given
the particular circumstances of Northern Ireland.2 This raises old and familiar
questions about the role of the judges and human rights enforcement in a
political democracy.
The Commission launched the Bill of Rights exercise on 1 March 2000 and
it has placed great weight on the process. The belief is that an open and
transparent process, which includes as many people as possible, will secure
the legitimacy of any instrument that is drafted. In its work the Commission
can drawn upon the knowledge and experience of existing social movements
in Northern Ireland as well as comparative experience of other countries.
It has made clear that it wants to achieve the best possible Bill of Rights
within the context of the Agreement. It may be impeded in this by those
who want to see this exercise rigidly defined and restrictively implemented.
The Agreement is not without its ambiguities and there is scope for a narrow
and restrictive approach to be taken. As I have suggested, this would, however,
conflict with the spirit of the Agreement which is firm in its commitment
to a new beginning and the protection and the vindication of the human rights
of all. The Human Rights Commission has sought to make the process an inclusive
one. In order to draw upon existing expertise it established working groups
in the areas of: social and economic rights; children and young people;
criminal justice; cultural rights and community identity; language; victims'
rights; equality; education; and implementation.3 The working groups were
tasked with making recommendations to the Commission on the rights that
might be included in its draft Bill of Rights. The Commission has also produced
a training manual as part of its Bill of Rights exercise. |
