The Cadogan Group

Subtitle

Taking Liberties

BOOKS


TAKING LIBERTIES

Human Rights and the Northern Ireland Problem

The Cadogan Group, February 2002


INTRODUCTION

Is the modest success of the Belfast Agreement, to date, due to what Mary Robinson has described as the centrality given in it to equality and human rights concerns?  Does a stable future in Northern Ireland depend on an ever-widening ‘rights’ agenda, with a comprehensive Bill of Rights for the province an essential keystone?

Or, as some would argue, is the current rights agenda at best a wish list of the politically correct as likely to prove an obstacle to reconciliation and stability as to promote them, or, at worst, an attempt to insert old fashioned territorial nationalism inside a Trojan Horse of human rights and post-modernist academic debate with the ultimate aim of circumventing the consent principle and destabilising Northern Ireland?

Concern with the ‘rights of man’ goes back to the Enlightenment of the 18th century and the American and French revolutions, but the detailed formulation of internationally agreed rights is a post-World War Two phenomenon, seen chiefly in the United Nation’s Universal Declaration of Human Rights (1948), followed by other UN Covenants, and the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms (1950).

Much more recently the concentration in those instruments on the rights of the individual has been added to in a series of agreements relating to group rights, such as the Council of Europe’s Framework Convention for the Protection of National Minorities (1995) and its Charter for Regional or Minority Languages (1993).  Most recently the European Union has adopted its Charter of Fundamental Rights of the European Union.  Individual states have, since the USA in 1787, incorporated various statements of rights, both individual and group, in their national constitutions.

 

Rights and Northern Ireland

It would foolish to deny the relevance of the growing body of internationally accepted concepts of human rights, and sometimes of internationally accepted enforceable jurisdiction on human rights issues, to the Northern Ireland problem.  The very creation of Northern Ireland in 1921 was seen by Irish nationalists as a violation of the emerging concept of a right to self-determination.  The British refusal to concede demands for Irish independence at the end of a war fought, in theory at least, to preserve the rights of small nations, was seen by nationalists as a denial of the rights of the Irish nation;  partition in 1921, it was argued, was a further, and more grievous denial of rights of the Irish nation and more particularly of Irish nationalists in Northern Ireland.  

Neither President Wilson’s Fourteen Points nor the Covenant of the League of Nations included any definition of a nation, and no clear right of self-determination was formulated, but there was emerging recognition of the link between the will of a ‘people’ and the shape and form of the state within which they lived and were governed.

For Irish nationalists the right of the people of the island to self-determination has been the kernel of the problem, though, after partition, that right has never been pursued on the basis of any international formulation of rights, and rarely in any international forum.   It is also noteworthy that the growing body of international law and agreements in the area of human rights, both individual and group, have had little impact on the Northern Ireland problem, and have rarely been resorted to for remedy.  The number of cases taken to the European Court of Human Rights with regard to Northern Ireland have been few, most of them related to the operation of emergency legislation and actions against terrorism.

The broad nationalist grievance over partition was, on occasions, linked to allegations of mistreatment of the minority within Northern Ireland, but the complaints, particularly in the 1930s and 1940s, were widely regarded as both exaggerated and politically motivated, more concerned with the pursuit of Irish unity than with remedying the situation inside Northern Ireland.  

By the 1960s the failure of the 1950s IRA campaign, plus social and economic change in Northern Ireland and a new world environment, led to increasing disenchantment among the Northern minority with what was seen as sterile anti-partitionism.  Republicanism developed a new socialist element, the Nationalist party adopted a political programme as much  concerned with discrimination and disadvantage as with Irish unity, the Campaign for Social Justice emerged with its focus on local Catholic grievances, and all came together in the popular civil rights movement of the late 1960s.

The civil rights campaign indisputably led directly to the ‘Troubles’, first through disturbances associated with civil rights marches and attempts to ban them, and opposition to them from unionists.  The disturbances developed into serious inter-communal violence, and that and the introduction of British troops in aid of the police provided the fertile ground for the rebirth of the IRA.  

In the intense violence of the early years of the Troubles, with both Republican and Loyalist terrorists active, Dublin anxious to intervene, and the Army presence predominant, civil rights were forgotten.  It was almost overlooked that the modest list of demands made by the civil rights movement had largely been met by mid-1970.

By October 1969 it had been accepted that the RUC would be disarmed, the B-Specials abolished, public housing would be taken out of the hands of local authorities.  An outsider, Sir Arthur Young, was brought in as Chief Constable of the RUC, a new Ministry of Community Relations was established.  In November an ombudsman was created to deal with complaints against local councils and public bodies.  A new electoral law abolished the restricted franchises in local elections.  In March 1970 a new Police Act made the RUC an unarmed force, with a new Police Authority designed to represent the whole community.  On April 30th the B-Specials were disbanded.  In May the Macrory Report recommended, and the Government accepted, that there should be wholesale reform of local government.

But the issue was already running away beyond questions of civil rights, and by the end of 1970 violence was increasing to frightening levels.  The long war, between a violent fascist nationalism and the British state, including the citizens of Northern Ireland, had begun.  However, to a world watching with fascination the civil rights campaigns in the southern states of the USA, and South Africa, and familiar with liberation struggles from Vietnam to Latin America, a confrontation in Northern Ireland which had arisen out of a civil rights campaign could not be seen to be entirely unjustified.

The introduction of internment without trial in August 1971 as a means of combating IRA violence, and the manner of its implementation, brought not just civil but fundamental human rights abruptly back to centre-stage.  (The abolition of  the Special Powers Act had been the one demand of the civil rights movement conspicuously not granted.)  The shooting dead of civilians by Paratroopers in Londonderry on Bloody Sunday in January 1972 was added to the human rights agenda, as was the treatment of prisoners under interrogation.  Even with the phasing out of internment at the end of 1975, the issue of political status for convicted terrorists, culminating in the hunger strikes of the early 1980s, meant the problem was still perceived, particularly from outside, to be one of rights and the denial of them.  It was easy to assume that people who died in prison on hunger strike had some higher cause than old-fashioned territorial nationalism.

Even though John Hume kept saying there was no issue in Northern Ireland worth a single life, the New Ireland Forum of 1983-4 declared that since 1922 northern nationalists had lived under a system of exclusively unionist power, and had suffered systematic discrimination, being deprived of the means of social and economic development.  (Ironically, perhaps, the two great tragic events of the past 30 years which have fuelled the assertion that the central issue was unionist denial of nationalist rights – Bloody Sunday and the Hunger Strike deaths – had little if anything to do with unionism.  Both resulted from the actions of other agencies, in one case the Army, in the other the Government in London.)  

The Forum, made up of the four main nationalist parties in the island of Ireland, but not Sinn Fein, came close to giving official endorsement to the ‘great cause’ theory of what was happening in the North when it said that a united, sovereign, independent Irish state of the whole island would offer the best and most durable basis for peace and stability.  

One of the claims formulated by the New Ireland Forum on behalf of nationalists in Northern Ireland was the right to political expression of their Irish identity.  This was not defined at the time, and it is difficult to see how a right to a political expression of an identity – beyond that already guaranteed in a liberal democracy like the UK – could be deemed to fall within the scope of human or civil rights as internationally defined.

In a sense a marriage had been proclaimed between old fashioned irredentist nationalism and civil rights, and this concept increasingly dominated much discussion of the Northern Ireland problem, and the approach of the governments in London and Dublin to it.  It was reflected in the radical and controversial Anglo-Irish Agreement of 1985.  The United Kingdom Government was happy to accept the wording of the Preamble to the AIA based to an extent on the Forum Report, and recognising the need ‘...to reconcile and to acknowledge the rights of the two major traditions that exist in Ireland’, and calling for  ‘mutual recognition and acceptance’ of the ‘rights’ of both unionists and nationalists.

From then on there was a broad assumption that the minority in Northern Ireland had not only been discriminated against in the past, but were still in a position of social, economic and political disadvantage, and that this could be remedied only in the context of comprehensive reform, both of the way Northern Ireland was administered, and in its relationship with the Republic including both institutionalised cross-border cooperation, and a role for the Government of the Republic in the internal affairs of the province, along the lines already established under the 1985 Agreement.

Thus the many changes proposed since then, and mostly implemented, have been presented and perceived as ‘reforms’, that is as measures designed to remedy inequities, or prevent unfair treatment, even when they have transparently been designed to meet the demands of a political nationalism – for instance in the removal of symbols of the United Kingdom state.  

Nationalists have persistently used the language of rights – human or civil – to forward what remains essentially a political case.  The struggle is for ‘fairness’ and ‘equity’; Martin McGuinness, while enjoying Ministerial office, can still tell BBC listeners that nationalists are no longer content ‘to sit at the back of the bus’, blatantly seeking to link the Republican campaign of terror with civil rights in the Deep South.  The current and previous Secretaries of State for Northern Ireland have both waxed enthusiastic about the opportunity presented by the Belfast Agreement for ‘a fair and equitable’ Northern Ireland, implying that even now injustice to a minority characterises the region.

In Cuba in December 2001 the Sinn Fein President was taxed about his relations with a one-party state like Cuba.  His reply was that he had lived for years in a one-party state in Northern Ireland, again firmly, and mendaciously, seeking to place the Northern Ireland problem in the context of human rights.  Northern Ireland never was a one-party state; opposition parties operated freely from the creation of the state in 1921.  The Unionist Party remained in power for half a century because nationalists had helped ensure that politics were firmly cemented to the constitutional issue.  As nationalism was a minority viewpoint, no nationalist party could ever win a majority of seats in parliament.

Unionists enthusiastically embraced a form of politics which guaranteed them permanence in government, and short-sightedly ignored the long-term threat to stability posed by an equally permanently excluded minority.  But the root of the problem lay in politics, in the nationalist community’s refusal to accept the legitimacy of Northern Ireland and in unionism’s response to that, rather than in any determination by the majority systematically to deny civil rights to the minority within Northern Ireland.  But the perception was otherwise.  A combination of British feelings of guilt, of determined nationalist propaganda, of traditional Labour Party softness for Irish unity, and pressure from America helped cement the idea that the problem in Northern Ireland was, essentially, the denial of minority rights.

Ten years ago the Cadogan Group devoted part of its first pamphlet, Northern Limits, to a refutation of this essentially nationalist interpretation.  It sought to relocate the problem where it correctly belongs – among the many examples in Europe where irreconcilable national aspirations find themselves sharing the same territory, and where partition in 1921 was an imperfect but not illogical means of resolving the clash of unionism and nationalism in the island of Ireland.

That pamphlet also sought to put in perspective the treatment of the minority.  It did not argue that no discrimination took place, and it accepted that the Catholic community was, in general, economically disadvantaged.  But it pointed out that the key complaints of the civil rights movement of the 1960s had been met, and also noted that some of them, especially the ‘one man, one vote’ issue, had not explicitly discriminated against Catholics, and in practice had impacted more upon the protestant community.

Since then more work has been done on the question of discrimination in employment, and that, plus the experience of three decades of direct rule, ie non-unionist government, and of the workings of stringent fair employment legislation, all tend to confirm that while some degree of catholic disadvantage in employment is a fact, it almost certainly does not result from anti-catholic discrimination.  

Nevertheless, as Mrs Robinson’s remarks confirm,  ‘equality and human rights’ issues have continued to dominate perceptions of Northern Ireland.  It was no surprise, therefore, that an agreement negotiated specifically to facilitate the inclusion of the extreme nationalism should lean heavily towards the rights agenda.   Republicans, and their apologists, have long sought to place acts of terrorism within the context of a struggle against injustice.

The Declaration of Support with which the Belfast Agreement begins refers to ‘the tragedies of the past’, and promises to honour those who have died through making a fresh start dedicated to, among other objectives, ‘the protection and vindication of the human rights of all’.  No distinction is made between those who died as the victims of terrorist violence, and those who died or suffered as the result of engaging in terrorism, and there is at least an implication that the question of human rights for all was central to the ‘tragedies of the past’.

The Agreement includes substantial sections under the heading of ‘Rights, Safeguards and Equality’, within which the creation of the Northern Ireland Human Rights Commission is promised, and the possibility of a ‘Bill of Rights for Northern Ireland’ is raised.  It is from these paragraphs that the current draft Bill, Making a Bill of Rights for Northern Ireland, has arisen.  

 

GETTING RIGHTS WRONG

There has long been wide acceptance across the political divide that any agreement on Northern Ireland would include some formulation of human rights, either at United Kingdom level or in the context of the special conditions in Northern Ireland.  In 1984 the Ulster Unionist Party, in its policy document The Way Forward, proposed both a Human Rights Bill for Northern Ireland, and a Human Rights Commission to oversee its observance.  There has also been awareness that unionists and nationalists had sharp differences of opinion over what might constitute rights.  The province had had experience of its own Standing Advisory Committee on Human Rights for a decade and a half before the Belfast Agreement.  In the event, the sections of the Belfast Agreement dealing with rights were not major items of contention.  There was no controversy over the proposal to create a new Human Rights Commission for Northern Ireland, partly, perhaps, because there was an explicit requirement in the Agreement that the membership of the new Commission would ‘reflect the community balance’.

Why then has the work of the NIHRC, set up in March 1999, so alienated the unionist community, and why has its draft Bill of Rights brought much criticism on its head, and not just from unionists?

Alarm bells began ringing among unionists even before the Commission was appointed.  It became known that at least two applicants from the broad unionist community, both with first class legal credentials, and with records of involvement in the field of human rights, had not been appointed.  When the nine members were announced, it was immediately apparent that the then Secretary of State, and the Northern Ireland Office under her, had placed a tendentious, even perverse interpretation on the phrase ‘community balance’.

The chairman, Professor Brice Dickson, and four others, would certainly have been designated ‘Protestant’, or ‘perceived Protestant’ under the province’s Fair Employment legislation, but none of them could have been considered in any way representative of the broader unionist community; some, indeed, had been publicly associated with views highly critical of unionist policies.

In the course of 2001 indications emerged from Government that the NIO did indeed recognise that the composition of the Commission was unbalanced, and that an early opportunity would be taken to offer some redress.  Suitably qualified individuals of broadly unionist outlook were canvassed to allow their names to go forward, including some of those initially rejected in 1999, and also including the Ulster Unionist MP Ken Maginnis.  In the event, however, the imbalance was compounded at the end of 2001 when the Secretary of State reappointed the existing Commission, plus four new members, only one of whom could seriously be taken as representing a unionist viewpoint.  

This was and remains a real political problem which has never been treated with adequate seriousness by Government, or by Professor Dickson. He has consistently applied a principle to the composition of his Commission that he would find intolerable elsewhere. He appears still to believe that, in a world of dialogic democracy and social inclusiveness, in a world of equality-proofing and transparency, his Commission ought to be constituted on Edmund Burke's aristocratic principle of virtual representation. That is, although unionists are notable by their absence on the NIHRC nevertheless their interests will be virtually (ie truly) represented by the consummate intelligence and breadth of vision of the Commissioners. This would be laughable if it were not so serious - and Professor Dickson’s description of the NIHRC as 'a group of nine people who are representative of the community in Northern Ireland' - was laughable in the seriousness with which it was said.

However, the central criticism of the NIHRC should not be a narrow sectarian one; even if un-representative in the sense intended in the Agreement, a Commission of highly educated and well qualified individuals need not have attracted such widespread criticism, nor their proposed draft such censure.  Rather it is the Commission’s lack of political responsibility and effective public accountability.

Can this be put down to an intellectually corrosive form of group-think which projects its own judgments of who ought to get what, where, when and how from the representations of lobby groups into the realm of public policy?

A significant part of the reason, we believe, can be found in the emergence of an alternative political class in Northern Ireland after 1972. In the absence of devolved government, following the removal of important powers from local government and in the absence of direct party political influence in national decision-making, an arena was created for professionalism to substitute for politics. In most cases, public administration was carried on in a spirit of remarkable equity and selflessness - much to the credit of those civil servants and those independents responsible for carrying out their duties in very difficult and often dangerous circumstances.

However, a space was also created in which many of the normal distinctions between politics (ideology and advocacy) and administration (bureaucratic rationality and non-partisanship) broke down. This was the space in which private dreams were easily confused with public realities, in which it became possible to substitute what one wished for what was appropriate. The objective was to circumvent the obstacles of democratic politics. Fortunately, this influence was generally marginal and confined to the sort of political campaigning of groups like the Committee on the Administration of Justice (CAJ). Unfortunately, under the guise of the NIHRC, this style of disguised politics now threatens to invade and actually occupy the public realm.

The NIHRC’s approach to its role could be seen as an attempt to collapse legality into politics and politics into legalism to the detriment of both the legal and the political processes.  For instance, this is recognised in the CAJ's pamphlet A bill of rights for Northern Ireland: Guide for group leaders (November 2000) which was designed to encourage debate around the consultation project of the NIHRC in advance of the publication of Making a Bill of Rights for Northern Ireland. Indeed, that pamphlet actually included some of the NIHRC's own material. The CAJ declared:

'To struggle for human rights is to challenge the current power relationships and to ensure power is exercised in an accountable manner whereby everyone's rights are fully respected. That struggle is an inherently political one'.

Since the CAJ is influential both in the thinking and in the membership of the NIHRC one assumes that that view is still held.  If a Bill of Rights  is to be conceived as a political campaign to 'challenge the current power relationships' then it must be treated with as much respect as one would treat any other political manifesto (and not as an improved version of the Ten Commandments). This judgment ought not to be controversial. The spirit of rights is to open up and not to close political debate. Rights are not a substitute for politics but a way of trying to reframe discussion about politics. As such, one must consider how proposals on rights aim to reframe politics – whether those proposals are responsible, sensible or necessary. In approaching Making a Bill of Rights for Northern Ireland as one might any other such manifesto one must also question the responsibility of the institution which has proposed it. And one must look more critically precisely at what such a politicised manifesto understands 'current power relationships' to be (as well as who is excluded from culpability by this terminology).

Apart from the actual content of Making a Bill of Rights for Northern Ireland, dealt with in the next section, questions must be asked about the procedures surrounding its compilation, and about its presentation to the public.  We note, for instance, how children have been rather cynically and very crudely exploited by the NIHRC on the covers of the document.. What is the message that is being conveyed here? It is a transparent one. The future belongs to the NIHRC and any criticism must be reactionary, backward-looking and out of touch with the new generation.  There is no necessary association between the NIHRC and contemporary youth and it is only in their own minds that the Commissioners can associate their proposed Bill of Rights with the wave of the future

Is the proposed Bill of Rights a consequence of that marriage between legal group-think and interest-group assertion which formed the basis of the NIHRC's progamme of 'community' consultation and re-education preceding its draft? . Once that particular dynamic had established itself it became impossible to curb the excess of righteous zeal which has now inevitably poured itself into the 'radical' project of Making a Bill of Rights for Northern Ireland.  Only in the self-referential world of the NIHRC's project could such an outcome be conceivable. In other words, the maximalist irrelevance of the proposed Bill of Rights was programmed into the process of consultation and the deliberations of the relevant Working Groups. It is an old strategy:

  • identify as wide a range of interests as possible
  • select one or more of their concerns and incorporate them in the text
  • redefine their concerns as human rights
  • thereby establish a vocal and wide-ranging lobby which will campaign to support the complete document if only to secure its particular interest within it.

That is clever politics. It is also rather cynical politics. For the CAJ, for example, to recruit the 1984 Nobel peace laureate Archbishop Desmond Tutu to the cause of Making a Bill of Rights for Northern Ireland was an attempt to promote the wrong analogy (with South Africa). The exploitation of Tutu’s international reputation to advance a local (self)interest reveals the political style of the CAJ. That style of politics is not conducive to sensible policy. It has no real conception of the public interest apart from its own presumption to define what the public interest should be. Unfortunately, that approach appears to have infected the deliberations of the NIHRC.

It can be seen in the Commission’s TV advertising campaign, presumably justified as an attempt to promote the widest possible consultation on the draft bill.  But in practice the campaign is a campaign for the draft – the viewer is invited to love it, through the use of words like ‘inclusivity’ and ‘equality’.

This approach will be supported by those who wish to appear politically correct but have never given much thought to practicalities or consequences and who therefore allow others, like the NIHRC, to define for them what is politically correct.  A good example of this sort of thinking came from David Ervine in the Assembly debate on the NIHRC's proposals. He argued that: ' It will be difficult to see a human rights system here that works properly, because I do not imagine that a sterling job can be done by the Commission, given the pathetic amount of money that it has been allocated'.

The NIHRC represents an intellectual trend which may be summed up as legal thinking become critical ideology. The objective appears to be that of social and political transformation through the use of what might be described as ‘constructive legalism’. This is a technique of manipulation designed to circumvent both public opinion and other institutions (the Assembly, for example). That it should be academic lawyers who look upon the Belfast Agreement as a radical re-foundation is probably worthy of note. If other commentators, journalists as well as academics, express reservation and scepticism, and are sensitive to the precarious basis of the Agreement, the NIHRC and the ‘human rights community’ come with a new world in their hearts, impatient to remove the remaining obstacles to a new dispensation. One has the feeling that the Belfast Agreement itself is seen as one of those obstacles which constructive legalism seeks to circumvent. The problem with constructive legalism is that it tends to be politically contentious and to prioritise what happens to be approved of by the human rights community. And what the NIHRC approves of is something beyond that which the Belfast Agreement delivers. It is entitled to that opinion but it ought not to expect that opinion itself to become enshrined as a human right.

 

THE DRAFT BILL OF RIGHTS 2001

(This section incorporates the text of the Cadogan Group’s submission to the NI Human Rights Commission on  Making a Bill of Rights for Northern Ireland.)

In its discussion of Making a Bill of Rights for Northern Ireland the Cadogan Group found itself at odds with the general approach of the Northern Ireland Human Rights Commission to its mandate under the Belfast Agreement, and with the Commission’s view of issues which come within the scope of a human rights approach.  The submission, therefore, did not restrict itself to a chapter by chapter response to the Commission’s draft, but included examination of these broader issues.  

It is with diffidence that anyone takes issue with proposals from a body called The Northern Ireland Human Rights Commission, the very title of which suggests the advocacy of universal virtue, even though the remit of the NIHRC is not universal but particular, that is to formulate appropriate rights supplementary or additional to those in the European Convention on Human Rights (ECHR).

We find the ideological approach of the NIHRC in Making a Bill of Rights for Northern Ireland can, at times, appear designed to make that project immune against contradiction or political challenge.  Indeed, as will be seen, the group feels that the technique of posing specific questions - and the framing of those questions - on the proposals in each chapter could be seen as an attempt to narrow and direct the consultation procedure.

A free society cannot tolerate the development of one-dimensionality in the debate about human rights, or allow a simple-minded culture of righteousness to substitute for intelligent advocacy of civic liberty.  We are sure that the NIHRC would not wish its proposals to be presented in such a manner as to defy challenge or to portray reasoned criticism as incorrigible reaction.

But we do feel that the Commission’s approach is fundamentally misconceived, that the draft is unnecessarily complex, and that the proposed Bill is ultimately inappropriate to the current situation in Northern Ireland.

A central error of Making a Bill of Rights for Northern Ireland, we would argue, is a misunderstanding of the Belfast Agreement, both of the nature of the Agreement itself, and also of the mandate given to the NIHRC in the Agreement.  The NIHRC appears to see the Agreement as a Re-foundation document, a literal 'new beginning' in Northern Ireland, a conceptual 'Year Zero', which requires the radical re-imagining of all social and political relationships in terms of international standards of human rights.  This is to confuse a very specific historical agreement between parties and governments, rather detailed in its prescriptions but with margins of interpretative space, with a blank sheet upon which the NIHRC can 're-found' the basis of the social order.  In short, it confuses policies decreed by government, or agreed among the parties, with basic human rights.

The Belfast Agreement was backed by Government, agreed to by most of the parties and approved by a majority in a referendum.  But it remains a highly controversial political agreement, which emerged under enormous pressure and which includes many compromises and imprecisions.  Most of those parties which accepted it, and many of those who voted for it, did so with serious reservations, and with outright disagreement with particular aspects of it.

The Agreement essentially enshrines Government policy at a particular time to meet particular difficulties in very special circumstances, and cannot be seen as a statement of human or basic rights.  

The Belfast Agreement does not actually ask the NIHRC to draft a Bill of Rights for Northern Ireland.  Rather it invites the Commission to advise on rights supplementary to the European Convention, which Westminster might legislate for, in the area of mutual respect and parity of esteem in the particular circumstances of Northern Ireland.  These additional rights, the Agreement says, would, taken together with the European convention, constitute a Bill of Rights for Northern Ireland.

The Agreement narrows further the remit of the Commission, by specifying only two areas for its consideration, both related directly to the particular circumstances of communal division in Northern Ireland

  • to formulate a general obligation on Government to ensure equal respect and equal treatment of both communities
  • to give a clear formulation of rights to equality of treatment and non-discrimination.

The unmistakable intention of paragraph 4 of the Belfast Agreement is that a Bill of Rights for Northern Ireland would comprise the European Convention and some additional clauses related to the particular circumstances of communal division in Northern Ireland.  This would be in line with accepted practice elsewhere.  As the House of Lords Select Committee on the European Union (8th Report) stated in its report on economic and social rights in 2000:

'No Member State or other common law country to the best of our knowledge has a charter of rights which goes beyond the basic civil and political rights, apart from limited additions dealing with discrimination, rights to freedom of association and some "directive principles" to inform policy-making in the socio-economic field'.

On page 14 of Making a Bill of Rights for Northern Ireland the NIHRC includes a summary of what it terms ‘a narrow interpretation of paragraph 4’, and an acknowledgement that this might be the Government’s interpretation, but goes on to state that it (the NIHRC) has always expressed its clear wish 'to recommend provisions for the most extensive Bill of Rights which is consistent with the terms of paragraph 4 of the Agreement'.  

This is an assertion of an intention to adopt a maximalist approach to the exercise, but there is no attempt to argue just how such an approach can be consistent with the terms of paragraph 4.  Rather the Commission cites its general mandate under the Northern Ireland Act and its own ‘firm view’ that this is the best course.  Such lack of argument is a commentary on the lack of rigour in the Commission’s approach, and on a high degree of presumption, both of which prompt doubts about the credibility of the whole enterprise.

This maximalist approach has ensured that Making a Bill of Rights for Northern Ireland lacks a sense of proportion, a sense of where the boundaries of the attainable might lie.  The NIHRC tries to provide everything for everyone.  It has produced the most magnificent compendium of rights.  It has inscribed the most extensive raft of freedoms imaginable.  It is a bit like the legend of the ancient Greek who tried to make a statue more beautiful then Helen by taking the most alluring features of different women and adding them together.  The result was not beauty but contrived ugliness.  In its scouring of the Human Rights documents of the world - from Canada to South Africa - the NIHRC has produced a contrived irrelevance.

Instead of a limited number of recommendations related to community division in Northern Ireland, the NIHRC has delivered a document of 155 pages and 164 draft clauses.  Of these clauses 77% have been devised de novo by the NIHRC; only 37 clauses have existing effect through the UK's 1998 Human Rights Act .

The result is like employing the plans for Antonio Gaudi's Cathedral in Barcelona to build an extension to a semi-detached house.  Such a construction would usually be called - and appropriately so in this case - a 'folly'.  Consider just some of the inappropriate propositions for Northern Ireland exclusively which adorn this particular folly:

  • electoral rights, including PR in elections to Westminster: voting age down to 17
  • socio-economic and environmental rights (20 of 164 clauses)
  • women's rights (though the NIHRC tip toes around the issue of abortion)
  • children's rights (which comprise 29 of 164 clauses)
  • language rights

These are certainly issues which require political debate.  But there appears to be no good reason why they should be inscribed into a Northern Ireland Bill of Rights.  Missing from the draft bill is any real discussion of which, if any, of the proposals in the Belfast Agreement fall within the scope of basic or human rights as those terms are normally defined.  The electoral rights recommendations mentioned above, such as voting age, are manifestly matters for legislative decision, and have no place in any general statement of basic rights.

Nor is there any exploration of how key principles of the Agreement, such as ‘parity of esteem’ might fit into the accepted pattern of human rights legislation, or indeed, if they can.  In the particular circumstances of Northern Ireland, this parity is presumably between nationalists and unionists, but what does it mean?  Where are the precedents for seeking to enshrine such parity between groups divided not by language, ethnicity or even religion, but essentially by political viewpoint?  What basic rights are at issue?

As the Human Rights academic Michael Freeman puts it: ‘We should... resist the temptation to formulate every moral and social problem as a question of rights.  To do so debases the value of rights, and sometimes over-simplifies or confuses difficult moral questions.  Rights signal fundamental human interests, but, by themselves, they do not show us the best way to reconcile interests that often conflict’.

That is why a return to the basic principles of the European Convention is vital.  The essential premise of the ECHR is that it enshrines a limited number of basic rights on which there is almost universal consensus.  The same should apply to any proposed Bill of Rights.  In Making a Bill of Rights for Northern Ireland the NIHRC states its intention to go beyond existing international charters and covenants and proposes to incorporate in a Bill of Rights for Northern Ireland almost every item in the Belfast Agreement.  In doing this we believe that it has:

  • abandoned any attempt to assess what might or might not be a basic right
  • ignored what degree of consensus might exist on any such issue
  • assumed that anything promised in the Agreement constitutes a basic human right.

Why has the Commission adopted such a cavalier approach?  Why the glaring disproportion between the Commission’s ambition and self-importance, and the role accorded to a Bill of Rights in both the Belfast Agreement and the Northern Ireland Act of 1998?  Is there a touch of the Skibbereen Eagle here?  The pompous self-regard of the current NIHRC and the role it assumes its proposed Bill of Rights should play in the affairs of Northern Ireland (never mind the beacon of righteousness it has lit for the rest of the world) makes the historic presumption of the Skibbereen Eagle warning the Tsar of Russia that it would be keeping an eye on him appear quite modest.

Even before this current exercise, there were indications of the NIHRC’s very high estimation of its own importance, competence and authority.  In September 2000 it proclaimed that-

'Following the submission of its recommendations, the Commission intends to maintain a programme of action designed to ensure that the government enacts a Bill of Rights which is, as far as possible, in conformity with the Commission's advice.'

Such declarations give the impression that the NIHRC has already decided to insist on the Bill, the whole Bill and nothing but the Bill (as far as makes no difference). How seriously, then, can one take its canvassing of advice and submissions from the general public and interested parties to which this paper is a response?  Such misgivings are increased by the manner in which the questions inviting a response to each chapter in Making a Bill of Rights for Northern Ireland are framed.  In the main they unmistakably appear to assume two things:

  • that those making submissions agree with the broad direction of the proposed Bill of Rights
  • that those making suggestions will desire even more elaborate rights to be added to the Bill.

A classic example is Question 33 at the end of the chapter on Language Rights.  Having been asked if he agrees with the Commission’s approach, the respondent is then asked ‘If not, what greater degree of protection would he support?’  The possibility of someone thinking the draft had gone too far, is not even contemplated.  The drafters have made the mistake Michael Ignatieff identified as confusing needs (or desires) with rights.  As he has argued, ‘rights inflation reduces the real value of rights language’.

These and other indications of the muddled thinking that has gone into the document prompt three general comments:

  • not everything that is wrong or imagined to be wrong in politics or society can be attributed to a denial of human rights
  • no Bill of Rights will redress such wrongs (real or imaginary)
  • why single out 1.7 million people within the UK for such a comprehensive Bill?

 

Specific Criticisms

1 The Belfast Agreement (whatever one's view of it) should not and ought not to be re-written by the NIHRC.  It was not charged with the task of 're-founding' Northern Ireland and there is little good faith in pretending that it was or that it can.  The text of the Agreement (whatever one's view of it) is what should be applied.  For example, the methods of 'entrenchment' for the Bill of Rights proposed by the NIHRC - Assembly approval, referendum, new British/Irish Treaty - attempt such a rewriting.  Moreover, there is an underlying tendency to downplay Northern Ireland's position within the United Kingdom.  To justify its maximalist approach the NIHRC would need exceptional justification, over and above arguments that would apply elsewhere in the UK.  No such arguments are made.

2 The NIHRC should refocus on the ECHR rather than attempting to inscribe all manner of  rights in Northern Ireland based on the misappropriation of elements from texts as diverse as the South African Constitution and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

3 The clauses on voting age and the form of elections are totally inappropriate for a Northern Ireland Bill of Rights.  They raise UK-wide issues.  

4 The clauses on victims, positive action for equality, the rights of women and the rights of children, and language rights are not relevant to a Bill of Rights in Northern Ireland.  To take this position must not be misunderstood to mean that issues of victimhood and equality, women's and children's rights and the issue of language are not of importance.  Of course they are.  However, they are issues best left to the legislative process, to the development of case law and to mutual respect and tolerance.  They should not be enshrined in a Bill of Rights.  A number of observations:

The chapter on victims takes an extravagantly wide view, partly because victimhood is such an ambiguous class of persons, partly because no definition criteria (e.g. time) are suggested.  It would require of Government an impossible and open-ended responsibility -

The relevant justification of particular rights for children would relate solely to their harmful exposure to conflict but the NIHRC's justification is much wider.  What it proposes is, in effect, a private policy initiative which is not warranted in a Bill of Rights.

The NIHRC's failure to address the question of abortion and the surrounding problem of criminalisation shows its remarkable inability to deal with a genuine issue of women's rights in Northern Ireland.

5 The proposals on education rest on a contentious agenda.  They suggest that there should long have been a guaranteed right to choose an integrated or Irish language school, that there has not been effective parity of provision for children in all schools, that the 11-plus selection system is unfair.  These are legitimate points of view in public debate.  They do not, however, justify additions Northern Ireland provision to the ECHR.

6 The clauses on social and economic rights are inappropriate.  The NIHRC does not show that deprivation in Northern Ireland is generally greater than in regions elsewhere in the UK.  There is no evidence that Government policy misapplies public resources to alleviate deprivation in Northern Ireland.  Moreover, it is entirely inappropriate to try to insert such claims into a Northern Ireland Bill of Rights.  These matters relate to legislative decision and administrative practice, and to UK tax and public spending policies.

7 There is no need for a special criminal court to deal with alleged human rights violations.  The NIHRC's criticism of the judiciary reveals an unargued prejudice.  It is unworthy of any serious body concerned with these matters.  There is a disturbingly arrogant tone to the suggestion that, in all its collective wisdom, the NIHRC should presume to encourage the re-education of the legal system.  This disturbing arrogant tone is also directed (implicitly in the matters the Commission wishes to remove from deliberation) towards elected politicians.  There is, moreover, no need for a mechanism to ensure compatibility of proposed legislation with a Bill of Rights.  This should be left to practising judges.  

8 On emergencies, no good case is made for departing from the terms of the ECHR, especially if Westminster controls the relevant powers.  This is a matter for UK domestic legislation.

9 The proposals on language are an over-elaborate interpretation of the political deal contained within the Belfast Agreement.  Moreover, we would argue that they are founded on dubious assertions about the 'wide variety' of linguistic traditions in Northern Ireland.  Since Government has already agreed policy on language there is no need to enshrine this policy as right.  Furthermore, it is proposed to leave the implementation of language rights to 'ordinary' legislation.  But ordinary legislation in this area would be devolved legislation.  The Bill of Rights envisaged by Making a Bill of Rights for Northern Ireland will be enacted by Westminster legislation.  This would effectively direct the Assembly to pass legislation, possibly involving significant expenditure, it might very well regard as inappropriate or even foolish.  

10 The chapter on justice and law notes the particular circumstances in NI as consisting mainly of the facts that 3,500 people were killed, and that emergency laws were in force.  It refers to the ECHR.  But at no point does it take account of Article 15 of the ECHR which allows countries to derogate from obligations under the Convention ‘in time of war or other public emergency threatening the life of the nation’.  The Commission might take the view that no such public emergency exists or has existed in NI, but surely it should be a central point in discussing rights in the particular circumstances of NI.  The Commission might also have looked at Article 17, which rules out any argument to justify the use of force on the grounds that rights under the Convention are being denied.  These are sometimes the grounds on which the violence of the past 30 years is now being excused, or even justified, and the point might have been discussed.

In short, we argue that the bulk of the clauses in Making a Bill of Rights for Northern Ireland are either irrelevant, redundant or misconceived.  Instead of the grand design of the document we suggest the NIHRC consider the following recommendations.

 

Positive Proposals

1 The NIHRC needs to abandon its maximalist position on a Bill of Rights for Northern Ireland.  As we have argued, this position leads it into all sorts of manifest absurdity.  It needs to adopt a modest approach in order to be taken seriously.  It needs to be more self-critical in order to foster a real human rights culture in Northern Ireland.  Making a Bill of Rights for Northern Ireland is neither serious nor does it advance a real human rights culture in Northern Ireland.  Modesty in this case is a virtue because it can establish a credible platform upon which progress may be made.

2 The role of the NIHRC should be to acknowledge the communal basis of the Belfast Agreement (whether one likes that or not).  It was actually charged to produce proposals on identity and community and on equality and non-discrimination.  This is a very technical area though central to the arrangements post-1998.  Intelligent reflection by the NIHRC on this matter and the encouragement of public debate about the consequences of bi-communalism would be a useful task for Commissioners.

3 We argue that it is within the specific and particular remit of points (1) and (2) that women's, children's, victims' and educational rights (insofar as there are relevant Northern Ireland circumstances) should be addressed.

4 The NIHRC raises the (very qualified) possibility that people in Northern Ireland are to be free not to be treated as part of their perceived community.  This does raise problems for the structures of the Agreement but it is the most liberating practical suggestion in Making a Bill of Rights for Northern Ireland.  It is closely related to the point we make above at (2 ).  We propose that the NIHRC address itself further to this matter such that universal human rights are not infringed by political convenience and that the interests of those who are either marginalised by the two-community approach or who are marginalised within either community are taken into account and properly respected.

5 The structures of governance in Northern Ireland and the mode of constituting the Executive have permanently inscribed a communal balance.  Although the Assembly committees fulfil the useful political task of scrutinising Executive departments, the NIHRC could provide intelligent reflection on how the law might improve 'accountable and transparent' government.  

6 If human rights principles are to be applied, or in this case, formulated, for the specific conditions in Northern Ireland then surely the most rigorous survey of those conditions should be the starting point.  The approach of the NIHRC has been woefully inadequate in this regard.  Many of its justifications rely on dubious assertions and casual generalities which sustain a grievance culture.  This is most striking in the chapter on language rights where assertions are presented as fact and these asserted facts become the basis of rights claims.  This rush to embrace a politically loaded analysis and to discard common sense and common knowledge is characteristic of the NIHRC approach and is found throughout the document.  The NIHRC's expenditure on canvassing and mobilising support for the maximalist interpretation of Making a Bill of Rights for Northern Ireland would have been better spent on serious research to determine the facts.

7 It is remarkable that, while the section on Democratic Rights covers matters of irrelevance, it does not discuss the ban on residents of NI joining the Labour Party.  The refusal of Labour to organise here denies the people of NI the right to vote for the party of government, while the refusal to accept membership surely offends against the right of association.  This particular issue could be formulated into a more general proposition which does address a peculiarity of the circumstances in Northern Ireland as a part of the United Kingdom.

8 The NIHRC should devote more time, energy and scrutiny to the question of 'personal and physical integrity'.  It is quite shameful that it addresses the question in such a superficial manner.  If Northern Ireland is distinct its distinction lies in the mafia subculture of intimidation and assault known as paramilitarism.  This has been the cause of the major infringements of human rights in Northern Ireland.  Intelligent reflection by the NIHRC on how citizens might be properly protected against abuse of their 'personal and physical integrity' would be useful.

9 Following the logic of point (8) the NIHRC could usefully address itself to the question of people connected with violence sitting in a legislative assembly and holding office in government.  This is an important issue which, like human rights, sits on the boundary of ethics and law.  The draft Bill does not touch on this matter and acts as if it is not a peculiarity of the situation in Northern Ireland.  The NIHRC may decide that it is impossible to formulate precise legal wording to cover this point but it surely has an ethical role in ensuring that a human rights culture demands the disassociation of violence and politics.

10 To monitor the achievement of a rights culture and to ensure the accountability of the NIHRC itself it might be useful to establish an Assembly committee with the remit of oversight. This might follow the pattern of the Parliamentary Committee on Human Rights as suggested by Professor Robert Blackburn though with appropriate modifications to avoid duplication with the NIHRC and with the responsibilities of Westminster. The Assembly committee might have the functions of consulting with the NIHRC about pre-legislative scrutiny, of monitoring the operation of the Bill of Rights for Northern Ireland and of cooperating with the preparation of reports and inquiries.

 

Conclusion

We believe there is a positive role for the NIHRC to play

  • as an expert body to advise individuals of their rights in a more systematic and detailed manner than, for example, the network of Citizen Advice Bureaux and to assist them when breaches of human rights have been identified.
  • to inform Assembly Members of the human rights implications of proposed legislation and to provide, as a balance to government legal opinion, an alternative, authoritative source of expertise on human rights matters.
  • to promote respect for human rights by educative work in Northern Ireland and by drawing local, national and international attention to all forms of human rights abuse in Northern Ireland.

These are important functions, which we fully support. Our concern is that the NIHRC has damaged its credibility as a body to fulfil those functions by the ill-advised proposals in Making a Bill of Rights for Northern Ireland.

 

CONCLUSION

Mary Robinson was perceptive in pointing to the centrality of equality and rights to the Belfast Agreement.  Whether or not that centrality assures the success of the Agreement and a solution to the Northern Ireland problem, however, still depends on a broad acceptance of what rights are involved, and on how they are protected and by whom.  

There is a danger that the centrality of ‘rights’ in the prescription for curing the problem can lead to the assumption that the problem is all about rights, and in particular about the systematic denial of civil and even human rights to a minority defined by a mixture of religion and national identity.  That assumption would be reasonably correct if the rights involved, and implied in the Belfast Agreement, were those generally recognised in existing international conventions – freedom of the individual from discrimination in terms of employment, education, housing and any dealings with the state or the courts, and protection of group or community rights in so far as a consensus exists on what these might be.

In large part these basic rights have been defined and agreed internationally to allow minorities obliged to live within a constitutional arrangement not of their choice, to be fully protected within that arrangement and give their full consent to it.

The difficulty in Northern Ireland, as outlined in the earlier part of this pamphlet, is that the line between a basic or civil right, capable of being legally defined and protected, and the political aspirations of a discontented minority has been progressively blurred over the years, both in the politics of nationalism, and in successive agreements between London and Dublin, and now in the Belfast Agreement.  

Vague phrases included in negotiated agreements or declarations can be used to transform political claims, the resolution of which belongs in the political arena for decision by elected assemblies and by popular vote, into rights issues, to be resolved according to legal interpretation by the courts.  One formulation of this dilemma has already been noted; it is the New Ireland Forum’s endorsement of the minority’s ‘right to political expression of their Irish identity’.

The classic political expression of an Irish identity is, of course, an Irish state, and Irish nationalism is so intensely wedded to the idea of an independent Irish state embracing the whole island that in many minds this right is essentially the right to Irish unity and independence.  Since the Anglo-Irish Agreement of 1985, if not before, the allocation of an institutionalised role for the Irish Government in the administration of Northern Ireland has been seen as a possible, if modest, means of allowing nationalists here to express politically their Irish identity.  As Albert Reyolds put it with characteristic simplicity when Taoiseach – nationalists can look to Dublin, just as unionists look to London.

The Belfast Agreement, in rather convoluted language, seeks to bring this within the range of personal rights – recognising ‘the birthright’ of all in Northern Ireland to ‘identify themselves and be accepted as Irish, or British, or both’. Under the heading ‘The right to a national identity’, Making a Bill of Rights defines such a right as:  ‘Individuals born in Northern Ireland have the right to identify themselves and be accepted as Irish or British citizens, or both...’

Given the changes made to the constitution of the Republic, this right would seem to confer no more privileges on a Northern nationalist, than on any other Irish citizen living away from Ireland in another jurisdiction.  Many people in Northern Ireland have long held Irish passports, and would gain nothing from the granting of this new ‘right’.  

At the same time the Dublin Government’s relationship to an Irish citizen in Northern Ireland is not the same as it would be to an Irish citizen in, say, Zambia.  It is not a distant and detached entity with only diplomatic links connecting it to the country of residence; in the case of Northern Ireland it has an institutionalised role in government, and has its own departmental civil servants, not diplomats, established in Belfast.

The Belfast Agreement also guarantees that nationalists in Northern Ireland must be afforded parity of esteem and just and equal treatment for their identity, ethos and aspirations.  These are fine phrases which eased the path to agreement, but bristle with problems when any attempt is made to explore exactly what they mean, and how they might be applied in all circumstances.  

Too central a role in Northern Ireland for detailed rights legislation and court interpretation of it could see all sorts of challenges to the normal practice of governance.   While it is hard to see the whole rights agenda as a Trojan Horse planted by Irish nationalism, some will have fears that it could be a serious factor in destabilising the political settlement, and could be exploited as such by those with the ultimate aim of circumventing the consent principle.

Missing from the rights debate in Northern Ireland, and apparently from the NIHRC’s agenda, is the very real issue of the extent to which a democratic state can curtail both individual and group rights to enable it, and its citizens, to withstand onslaught from anti-democratic forces.  The Northern Ireland tragedy persisted for almost three decades not just because the political process could not achieve a settlement, but also because a democratic government was unable to defeat a terrorist army supported only by a minority of a minority.  To what extent was that government handicapped by increasing pressure to observe fully, in a life and death emergency situation, rules devised to apply in normal times?

*  *  *

Making a Bill of Rights for Northern Ireland is, we fear, at best, a missed opportunity; at worst, it is a travesty. It reflects the self-importance of a self-important (if often well-meaning) community of advocates who are now attempting to extend their influence beyond the boundaries of their specific statutory remit. This proposed Bill of Rights does nothing to promote a stable and well-grounded culture of rights in Northern Ireland. It is not making any constructive contribution to the problem of sectarian division.