The US constitution describes as self-evident truth the ‘unalienable’ rights of man – consisting of life, liberty and the pursuit of happiness. These are Lockean ‘natural rights’ with which man is born possessed and they can only be removed from him by the actions of a third party. Although ‘natural rights’ still comprise a set of basic human entitlements which it should be government’s duty to balance and protect, in modern democratic societies there are a series of additional civic or social rights which have been developed by law. These may complement the protection of inalienable rights, for instance the right to a free trial, or may be additional legal rights developed by custom and consensus, for instance the right to an education. Human rights legislation is a framework whereby aspirations toward protecting these rights, inalienable, or consensual, are laid out. What human rights legislation should not be required to do, is prescribe the means by which government must realise the human rights legislation lays out, nor should it attempt to create rights when there is no societal consensus as to their existence.
The Belfast Agreement, contrary to Irish nationalist assertion, did not require that a Human Rights Act be enacted by Westminster for Northern Ireland. It merely established a commission, with the following remit,
“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.”
The ‘particular circumstances’ the agreement specified as entailing ‘mutual respect for the identity and ethos of both communities and parity of esteem’. You will note that, not only was a bill of rights not guaranteed, but neither the UK government, nor the political parties, were required to endorse any recommendations the commission might make. It is therefore particularly appropriate for parties (by intimating that they would campaign and vote against any bill on this model), and indeed the government (by refusing to draft the bill in its recommended state in the first place), to withhold endorsement for the NIHRC’s report, because it has blatantly not stuck to its remit. The recommendations produced by Monica McWilliams’ quango have wandered way beyond the framework of the European Convention, and its sorties from this template have strayed considerably further than the specifics of respect for identity and accordance of parity of esteem. The two unionist commission members have dissented from the report’s findings and the neutral Alliance Party has expressed its reservations.
The pro bill of rights argument has been woefully simplistic from the process’s inception. It has invoked the self-evident merit of anything which is bundled under the title ‘rights’, ignoring assertions that many of the matters which have been included under that title do not conform to any agreed definition of what a right should consist in. ‘How could anyone oppose rights?’ is how the case is framed. Then there is the nationalist mis-assertion that a bill must be established under the Good Friday Agreement. This deliberate sophistry has informed attempts to attach a caravan of nationalist aspirations to the bill of rights vehicle, on the understanding that anything hitched to the bill will be included in the bubble of invincibility with which nationalism has attempted to equip it.
It is a cunning trick for nationalists to adopt, because it capitalises on the perception of unionism as an intractable opponent of change. Dermot Nesbitt, on the UUP’s behalf, has thus far remained laudably patient, explaining that his party is not opposed to rights in any shape or form, nor is it opposed to providing social and economic entitlements by appropriate means. It is, however, opposed to tying future legislators’ hands on a whole range of issues thus defeating the essential imperatives of accountable democratic governance. Unionists are concerned with basic principles which underpin the United Kingdom’s system of government, such as sovereignty of Parliament and the inability of a current Parliament to bind those which succeed it. Naturally nationalists do not share unionism’s sensibilities as regards the UK’s constitution, particularly as it applies to Northern Ireland. Indeed unionists might be forgiven if they were to deduce that at the root of nationalism’s enthusiasm for the proposed bill lies a desire to subvert the constitution’s application in Northern Ireland. A deduction of that type would neither be baseless nor would it be unreasonable.
There is a near hysterical article on Our Kingdom, written by Damian O’Loan, which demonstrates precisely the type of mangled logic with which nationalism is infusing its argument in this instance. The two stranded objection to the bill advanced by the UUP is dismissed in a fashion which is either wilfully ignorant of constitutional law, or downright dishonest. When the UUP (who are not ‘official Conservatives’ whatever that phrase means) contend that the bill would take powers from democratically elected representatives and put them at the disposal of unelected judges, Damian’s rejoinder is that logically ‘government should have no legislative commitments’ by unionists’ formulation. Transparently this is nonsense which an able 14 year old could effectively rebut. The Bill of Rights proposes to hold future legislation to its prescriptions! That is the point of it! Of course the courts must apply legislation and this legislation applies to government, but equally legislators must have the ability to overturn, amend and create new legislation, across a range of matters, unhindered by courts or a set of prescriptions. That is the essence of the British constitution. The second UUP argument, that the Bill of Rights would not be accepted anywhere else in the UK, he claims is in contravention of Belfast Agreement commitments. We have already established that this is not the case. The proof is in the actual document, which as usual, nationalists have chosen to ignore, implying all manner of unwritten subtext which everyone is supposed to be beholden to. Unionists are asking - would this legislation be accepted in any other part of the UK, taking into consideration circumstances particular to Northern Ireland? The answer is clearly no, and therefore there is no obligation to support the document, which is (hadn’t anyone noticed?) not in the gift of unionists in any case, but would need to be passed at Westminster if it were ever drafted into a bill!
What is clear, from arguments which have surrounded these recommendations, and from reaction to the UUP / Conservative force, is that nationalism is prepared to misrepresent and misappropriate the Belfast Agreement repeatedly, in order to advance its own imperatives and attack British sovereignty in Northern Ireland. The irony, that in so doing it is clearly demonstrating contempt for the principle of consent and for the province’s constitutional status, will not be lost on unionists. For their part Ulster unionists must remain calm and lucid advancing the case against these ridiculous proposals. As Newton Emerson observes in the Irish News, they are likely to find that their position is closer to both main Westminster parties thinking on the NIHRC’s report, than they might initially expect.