THE BLOG

Why Northern Ireland Needs a Bill of Rights

10/12/2015 12:45 GMT | Updated 08/12/2016 10:12 GMT

It is over 17 years since the signing of the Good Friday Agreement which was meant to usher in a new era of peace, stability, co-operation and respect between Loyalists and Republicans, Unionists and Nationalists, British, Irish and Northern Irish people. Seventeen years on and there is a plethora of promises that were in that agreement that have never seen the light of day. In 2013 the Committee on the Administration of Justice published a report in conjunction with the The Transitional Justice Institute at Ulster University and the Human Rights Centre at Queen's University Belfast called 'Mapping The Rollback' which looked at, in detail, the failure of the three Governments to deliver on the promises of 1998 and how they have in fact allowed the process to roll back on a number of key areas.

One of the promises made was the publication and ratification of a Bill of Rights for Northern Ireland, something that has never materialised yet is crucial to the survival of a lasting peace that doesn't just gloss over legacy issues but will seek to address them and resolve them. Why a specific Bill of Rights for Northern Ireland? What makes this little corner of Europe so special that a devolved Government should even consider something so basic and trivial? Well for one thing it was a promise made and promises need to be kept - Northern Ireland is unique in its position in the UK and Ireland, and indeed Western Europe as a whole, as a post-conflict society. Of course there have been other conflicts such as the Kosovo war and the current conflict in Ukraine but Northern Ireland's conflict was ethno-religious in nature.

This wasn't the culmination of two opposing sides seeking the military domination of territory as we are seeing in Syria right now, this conflict was a brutal and dirty war that pitted entire communities against themselves and each other. The Troubles here pulled both the Irish and British Governments into a hopeless situation of trying to find a lasting peace in a region that had engulfed itself over sectarianism and had been devoured by paramilitarism and terrorism on a scale never before seen in Western Europe. We are unique in that the delicate nature of our peace here hinges on a fragile trust that can often be undermined for electoral gain to the detriment of our economy. Northern Ireland deserves better than that.

In 2010 the Northern Ireland Office published the responses to its consultation on the publication of an NI Bill of Rights to which 76.3% of respondents were unhappy with the proposals and urged the British Government to go back to the Human Rights Commission's advice from 2008. There has largely been radio silence from Westminster on this as the Government's focus has turned to the scrapping of the 1998 Human Rights Act and replacing it with a 'British Bill of Rights' - that's all well and good but the UK Government made a commitment in 2007 with the St Andrew's Agreement to incorporate the European Convention on Human Rights into Northern Irish law via the Human Rights Act 1998:

'These will include the power to compel evidence, access places of detention and rely on the Human Rights Act when bringing judicial proceedings in its own name.'

If and when the UK Government scraps the Human Rights Act and if the UK votes to leave the European Union there will be a weakening of Northern Irish human rights laws that will then depend on the rights and entitlements laid out in a so-called British born equivalent. If Northern Ireland had its own Bill of Rights we would not be beholden to laws intended to uphold British values and rights in a country that is very unlike any other part of the UK. We cannot have a credible and robust framework for the protection of human rights in the United Kingdom by ignoring the very real and unique issues that Northern Ireland presents.

Long has the debate over the definition and status of a victim dominated most political discourse here. Unlike South Africa, Northern Ireland emerged from a vicious and violent political and sectarian conflict and launched straight into an era of government and peace without a truth or reconciliation process. It would have allowed victims and ex-combatants the space and legislative protections to talk about their experiences openly. Far be it for me to say what the definition of a victim should be or who should be included in that category but a Bill of Rights for Northern Ireland could go some way to bringing that sore and heated debate to a close that will allow those who seek justice to achieve it in a way that the NI Executive has failed to provide for seventeen years.

A British Bill of Rights cannot and must not delay or supersede an NI equivalent - we have unique issues in this state that we cannot ignore and I fear, as does the Human Rights Commission, that a British Bill of Rights will undermine efforts for peace in NI by basically reneging on promises in the Belfast Agreement to legislate for an NI Bill of Rights. It is unlikely that the United Kingdom will leave the EU yet former Justice Secretary Chris Grayling MP has indicated that the UK could withdraw from the ECHR if Parliament is not given the authority to veto judgement by the European Court of Human Rights. That would raise serious questions about Britain's membership of the Council of Europe and if it were to leave that along with the European Union then Northern Ireland would no longer be under the jurisdiction of the European Court of Human Rights or the European Court of Justice.

These very real concerns are only part of the reason why Northern Ireland needs its own Bill of Rights. We have seen over the last three to four years a number of legal challenges being brought before the NI High Court on social issues such as adoption restrictions, abortion law, the ban on MSM blood donations and most recently the ban on same-sex marriage in Northern Ireland. Due to the current laws in Northern Ireland our High Court judges cannot overturn laws in the same way that Federal Judges in the USA can and have done, but rather they can 'read-down' legislation or declare it to be incompatible with the ECHR - however the impetus is on the NI Executive to legislate for those changes to be made which can and has taken years in some cases for those changes to come to the surface.

For example the issue of blood donations from gay, bisexual and MSM men has been dragged through the courts since 2011 and is still in legal limbo as successive NI Health Ministers and the UK Health Secretary have appealed the decision by the Courts on not only if the ban should be overturned but with which jurisdiction is responsible for doing so. That's a nonsense that should never have been allowed to make it this far and an NI Bill of Rights could address those issues head on. Think of the litigation, money and time that would save? Think of the amount of confidence we could have in our legal and political institutions with such strong and effective mechanisms for protections, checks and balance of our legislative system.

An NI Bill of Rights could underpin existing legislation such as the 2010 Equality Act, the 1995 Disability Discrimination Act and enshrine the protections and mechanisms in the Good Friday Agreement into a cohesive legislative framework that the political settlement here could not ignore. It could compel a devolved Northern Ireland Executive and indeed Westminster to implement the promises made seventeen years ago even if the UK leaves the conventions such as the Council of Europe and the jurisdiction of the ECJ. Projects and promises such as the Social Investment Fund, the Racial Equality Strategy, the Sexual Orientation Strategy will be delivered upon. Additional rights further to the 1998 Human Rights Act such as women's rights, children's rights, administrative justice, right to seek asylum, access to information, access to legal representation a basic standard of healthcare, education along with accountable political processes that encourage delivery and not delay could become tangible developments rather than footnotes in a manifesto. We would be able to have confidence in our legal protections and fundamental rights without fear of MLAs repealing them.

A Bill of Rights for Northern Ireland could actually mark a shift towards a progressive and confident country that would be able to enshrine its aspirations for all its people, not entrench divisions but rather do away with them. Culture, tradition, symbolism, paramilitarism, division and sectarianism are the day and daily of a post-GFA Northern Ireland. A Bill of Rights could and would empower communities to assert their rights over their use of language, culture, heritage and right to freedom from intimidation and fear from groups that use those same pillars of identity as weapons. Communities could demand the right to equality, socio-economic stability and a peaceful society collectively rather than competitively and without political grandstanding, interference or delay.

A Bill of Rights for Northern Ireland would allow this country to take its place in Europe as a progressive, stable and economically viable democracy. It will allow investors to see that the days of civil unrest and unstable Government are gone - we can take our place among democratic post-conflict societies around the world such as South Africa, Rwanda and Serbia and set an example for those who are still emerging from the ashes of conflict.

Let me be clear, whilst all major political parties in Northern Ireland have indicated their desire to see a Bill of Rights be drafted and their willingness to implement it, the content of such a document will likely be debated for some time. The NI Human Rights Commission, the Human Rights Consortium and Amnesty International have all submitted advice or consultation responses to the UK Government and NI Office on what the Bill should contain but the 2014 Stormont House Agreement stated under Section 69 that no significant progress has been made on it.

Whilst the SHA also states that NI Executive Ministers promise to uphold the rule of law and promote equality there are no effective mechanisms to enforce those commitments - a Bill of Rights could do that provided it is given the respect and legislative power that is needed to do so. It can go a long way to addressing legacy issues and cleaning up the loose ends of equality legislation. It can make headway in closing loopholes that allow extreme elements within our political system to undermine existing protections and provide a devolved Northern Irish Assembly with a credibility that it has lacked for so long by fulfilling the remaining promises from the Good Friday Agreement that should have opened a new chapter of hope, peace and mutual respect that we deserve.