Bill of Rights for Northern Ireland- Where we are now

Transcription of Speech delivered by Professor Michael O’Flaherty at Bill of Rights Conference: ‘A discussion on a UK Bill of Rights and a Proposed Bill of Rights for Northern Ireland’
University of Ulster’ Magee
Good afternoon everyone’ and thank you for having me here today’
Did the Human Rights Commission fail? Was the whole Bill of Rights exercise a waste of time? Were we barking up the wrong tree? The answer is most certainly not; there was no failure. Even with the absence – as yet - of the Bill of Rights’ already we can identify some achievements that have been delivered through the process.
The first example of this achievement is the extent to which the advice has provided the template for the human rights work of many actors in Northern Ireland. The references to the indivisibility and universality of human rights reflected in the advice engage with human rights issues in Northern Ireland to a much higher extent than you will find in the Republic of Ireland and the rest of the UK. The Northern Ireland Human Rights Commission (NIHRC) is also using the template in its work as our normative foundation for the positions we take and the strategies we adopt. The legacy we inherited from our predecessors very much informs what we do and how we do it.
The second achievement is the ease within the Northern Ireland human rights discourse in discussing the extent to which human rights embraces socio-economic rights’ as well as civil and political. Here there is a willingness to at least discuss the embrace of socio-economic issues’ which is rare to find in Western European states. In this regard’ there is a general sense in Northern Ireland’ which you do not get in the rest of the United Kingdom’ that a Bill of Rights constructed exclusively around the European Convention on Human Rights (ECHR) is going to be inadequate. People will only disagree on the actual extent to which one needs to go beyond the ECHR.
Third’ and arguably most importantly’ the work on the Bill of Rights has galvanised civil society. Foremost is the work of the Human Rights Consortium and its ability to bring together a range of civil society organizations and actors. This is a remarkable and effective global good practice. Without the work of the Consortium’ human rights protection in Northern Ireland would be much the weaker.
Finally in terms of achievements’ the Bill of Rights work has raised the profile of the Human Rights Commission. It has accorded a recognition of the role of the national human rights institution that is’ in general’ respectful and constructive.
Despite these achievements’ the phenomenon of myths and misunderstandings surrounding the Bill of Rights discourse is problematic. I am disturbed as to the extent to which the commentary on Bill of Rights is so often wrong’ mistaken or based on a false premises. Let me briefly flag a number of these myths - from various sides of the debate.
First’ there is a claim that without a Bill of Rights we will not have human rights’ which is of course untrue. We are guaranteed human rights through the range of treaties committed to and ratified by the UK at both the European and United Nations levels.
The second myth is that if there is a bill of rights’ we will have new alien rights imposed on us. Wrong; the Bill of Rights advice contains nothing that cannot be defended on the basis of the international standards to which the UK has already committed itself. The commentary in the Commission’s advice is clear in demonstrating point by point the extent to which the propositions are grounded in the existing standards to which the UK is committed.
Third is the myth that if we get a Bill of Rights that all of our problems will be solved’ that we will all have a big car’ a nice house and a great job. I exaggerate of course and am caricaturising simply to get the point across. The Bill of Rights will be an important tool to strengthen the promotion and protection of human rights in Northern Ireland; it will not deliver some wonderful new world. It is a strengthened normative framework’ a social safety net’ not a bundle of delights.
Another myth is that a Bill of Rights will not work for us unless it addresses all human rights’ be they human rights understood ethically or be they human rights understood as treaty obligations of the UK. Nobody has ever challenged the view that a state can choose from among its international commitments’ which rights it wishes to reflect and enhance in a Bill of Rights process.
Finally’ I should address the myth that we should have a unified Bill of Rights regime for the whole of a national territory’ that somehow we must have exactly the same bill of rights protection framework and approach as Scotland’ England and Wales. This is not necessary’ and practice in other devolved or federal states’ demonstrates that you can have different levels of domestic enforcement machinery and protection within a state without things falling apart’ or without a sense of injustice or lesser protection in different parts of the state. For example’ in Australia some of the territories’ such as New South Wales’ have bill of rights protections that you will not find in others. This has not raised constitutional nightmares’ such as of a person in Brisbane being less protected than an individual in Sydney.
Let me move on to another issue that is causing problems right now - the national bill of rights reflection that is on-going. The UK Bill of Rights consultative process in terms of its impact and engagement for Northern Ireland has been troublesome. The commission itself has gone to great lengths to listen to voices in Northern Ireland. However’ the failure to appoint Northern Ireland advisors to the commission has been disappointing and regrettable.
To redress the impact of the absence of NI advisors’ the Commission delivered detailed commentary to the process. In this we are reminding the Bill of Rights Commission of the model developed by the NIHRC to move beyond the European Convention. Additionally’ given the inappropriateness of a homogenised Bill of Rights for the entire United Kingdom’ I have invited the consultative commission to consider the model of the United Nations Bill of Rights’ which is a collection of documents: the UDHR and the two covenants. Such an approach to a Bill of Rights – of a cluster of equal texts may provide a model for a UK Bill that leaves appropriate space for a distinct but related NI instrument.
To conclude’ I would like to briefly touch on some of the work currently being carried out by the NIHRC. Firstly’ we stand completely in support of the advice delivered by our predecessors on the Bill of Rights; the Commission’s position has not changed. In the next few months we will be publishing a report countering many of the misconceptions currently held in Northern Ireland on human rights and a Bill of Rights. More generally’ we are working on projects to forward a rights-based approach to dealing with socio-economic matters’ which can hopefully reduce some of the opposition currently found against socio-economic human rights in Northern Ireland. Additionally’ we are advocating for the strengthening of human rights in Northern Ireland governance and human rights approaches in the Northern Ireland Assembly.
To conclude’ a bill of rights is not necessary for human rights; however’ the existence of a formal Bill of Rights indisputably would provide us the ability to enhance human rights protection’ particularly in a society emerging from conflict. What is more’ while a Bill of Rights is both for now and for the future’ it will be hollow if we ignore the past. Addressing the past – through intensified reflection and action on transitional justice - requires the same level of attention and respect in order to have the best possible protection of human rights for the future for Northern Ireland and its people.
Thank you