Duplicity and platitudes - the Bill of Rights.

Ten years after the Belfast Agreement the draft proposals for a Northern Ireland specific Bill of Rights are set to emerge today. Mark Devenport has got hold of a provisional copy of the report and has produced it in full on his BBC blog. I have been consistent in arguing that human rights are universal and that there are no human rights which need to be enshrined in legislation specific to Northern Ireland. Any bill will simply overlap existing provision for human rights and encroach on other areas of law for which the human rights remit is not appropriate. Unionists also fear that the bill will advance an agenda of diminution of Northern Ireland’s constitutional status under the guise of the rights agenda.

This fear is not simply unionist paranoia. Both unionist parties as well as the Alliance Party have expressed concern regarding the composition of the Bill of Rights Forum and are likely to record opposition to proposals in the draft report. Given Sinn Fein’s proclivity for advancing various agendas under the guise of rights and equality arguments (the altercation about the use of Stormont’s Long Gallery for instance) it is natural for unionists to be suspicious. The absence of a clear citation of anything approaching the generally accepted notion of a human right, which might require specific provision in Northern Ireland, has compounded this suspicion. The document which is about to emerge is unlikely to calm those fears.

There are a plethora of provisions dealing with areas already covered by legislation and indeed rights already enshrined by the Human Rights Act (1998) and the European Convention of Human Rights which that act codified in United Kingdom law. For example slavery looks set to be abolished under any Human Rights Act for Northern Ireland. There are vague platitudinous provisions covering abstract concepts which will allow rich pickings for the legal profession.

“Public authorities shall, when the circumstances so warrant, take special and concrete measures to achieve and sustain full equality”.

Wow! Full equality. If that is what we achieve in Northern Ireland through this proposed legislation and at the behest of public authorities, our little country will have become a fully fledged utopia. There’s nothing like setting the bar a little high! A little later we unearth the following sentence.

“The death penalty shall be abolished. No one shall be condemned to such penalty or executed”.

Whatever criticisms you may level at Northern Ireland, we do deserve credit for using the ultimate sanction so sparingly up to the point when the Human Rights Act will abolish it! You’d think with all those mass murders and bombings someone would have been tempted. Similarly the draft includes provisions outlawing domestic violence, sexual violence, harmful traditional practices, and sexual harassment - all of which are in very clear contravention of UK and EU laws anyway. The instances of this type of duplication are constant in this document. In fact nearly all the provisions which are concerned with actual human rights and the prevention of actual wrongs are duplicating laws enshrined elsewhere.

The Commission’s remit was to investigate whether there were special circumstances relevant to Northern Ireland which made specific provision for human rights necessary. This responsibility they have blatantly failed to fulfil. Most of the document has no special relevance to Northern Ireland whatsoever. The sections which can be argued to have some specific relevance stray far from the accepted remit of human rights legislation. We have a section covering indigenous languages which if adopted could smuggle in by stealth all the least savoury aspects of the mooted Irish Language Act. The chair’s proposed draft includes a ‘right’ to be educated in indigenous minority languages which would bind education boards not only to fund Irish language education from the public purse (as currently occurs) but would also require Ulster Scots education to be provided if any demand was to emerge. The expensive and needless requirement for public bodies to provide forms and speakers of these languages to communicate with those who insist that they must conduct their public business through such a medium is also contained in the chairman’s draft proposal. In themselves these things are highly contentious notions, in no way related to human rights, and it is patently wrong to saddle them on to legislation purporting to cover that area.

The section on nationality contains the seeds of disagreement too, although the chairman’s proposal finds a wording which does reflect the constitutional status of Northern Ireland.

“Everyone born within the jurisdiction has a right to British nationality and to recognition of any Irish nationality that he or she may hold.”

Although this clause does state the present position on nationality with a degree of accuracy (i.e. there is a right to British nationality with an option to simultaneously take up dual nationality in the Irish Republic), there is nothing new to be added to the Good Friday Agreement’s treatment of this issue. It does also reflect the possibility of people identifying their nationality in a nuanced way, but that is not a right of which people can be deprived in any case and it certainly does not need to be provided for in new legislation. If you have a right to free expression and a right not to be discriminated against on grounds of nationality then you necessarily also have the ability to define yourself as you wish. If governments in London and Dublin recognise you as a citizen entitled to a passport and allow for that in law, then those are all the citizenship laws that are needed.

Bizarrely the draft report then turns its attention to education, another area for which the state has been providing universal provision for more than 100 years. The chairman’s proposal would appear to guarantee us all the right to be educated in perpetuity. “Everyone has the right to an education and access to lifelong learning”. Given that only school age education must be provided for free will this effect any change or alter the status quo? In order to deprive people of the right to life long learning it would be necessary to remove their brain and/or lock them in a windowless room. What does this clause mean? We will only discover what it means if it is adopted in a bill, if it becomes law and if lawyers begin to pursue expensive litigation which will provide some manner of judicial interpretation.

One of the criticisms of the bill has been the assumption that its provisions would seek to establish economic rights. The argument is not that some measure of social security does not need to be provided in Northern Ireland, but that the extent of this should not be prescribed by human rights legislation. This is self-evident common sense, but if the report is an accurate indicator then the bill will nevertheless plough onward into this contentious area. The chairman has moderated an initial proposal which sought to enshrine a continuous improvement in living conditions. He has suggested improving conditions “beyond bare adequacy”, but even this accommodation could gain much in interpretation. What is ‘bare adequacy’ and what should the state be required to furnish people with in addition to providing adequately for their needs? This should be a matter for a democratically elected government, un-prescribed by legislation drafted by unelected quangoes. Economic policy is fundamental to the political choices which voters are asked to make at the polls. To circumscribe economic policy in this way is to diminish democracy itself.

The document deals with criminal justice in a great deal of depth, but the sections which would have most effect concern increasing the age of criminal responsibility to 18. The seriousness of that proposal has already been discussed at length elsewhere. The document takes an insidiously broad approach to defining victims of the troubles describing them as those who have survived “violent, conflict-related incidents”. This definition will clearly extend to those who have been involved in criminal and terrorist activity.

The document is long and stultifyingly bland. It will take more detailed perusal to draw out the full implications of its provisions. The overwhelming sense from the report is exactly what sceptics have been expecting. It is an exercise in duplication, in platitudes and in attempting to legislate outside the rights remit. There is no sustainable argument that these proposals should be the basis of a Human Rights Bill.