Facing the Rights and Equality Crisis: Achieving a Bill of Rights for Northern Ireland in the wake of Brexit
Anne Smith (Ulster University) and Colin Harvey (Queen’s University Belfast)
Brexit is giving rise to anxiety about a ‘major constitutional change’ that is creating ‘constitutional uncertainty’, but it has also resulted in a ‘constitutional moment’ with implications for the future of these islands. Depending on political positions on the larger constitutional questions, this might be viewed as a significant moment for the UK or an opportunity for an enhanced discussion about the future of the island of Ireland. It could, of course, be both of these things at the same time. But Brexit has taught everyone if they did not understand before, that constitutional status is a contested matter. We believe that whatever view is taken of this, a Bill of Rights is a vital guarantee whatever the constitutional future may hold.
In the wake of Brexit, we should not miss the opportunity that Brexit presents for enhanced discussion about human rights reform. This is one of the findings of our research project funded by Joseph Rowntree Charitable Trust (JRCT). The project aimed to renew the debate about the detail of what a Bill of Rights should contain and the possible ways forward. To this end, we published a draft model Bill of Rights based on the Northern Ireland Human Rights Commission’s advice.
A proposed Bill of Rights is part of the wider collective human rights and equality protections that emerged from the Belfast Agreement/Good Friday Agreement (the Agreement). Under that Agreement the Commission was mandated to provide advice to the British government. Their advice was delivered on the 10 December 2018. The Agreement’s terms of reference were that such a Bill was to reflect the ‘particular circumstances of Northern Ireland’, to consist of rights supplementary to the European Convention on Human Rights (ECHR), and the need to consider ‘international instruments and experience’ among other things. The British Government’s response was dismissive, and the document remains trapped in a political stalemate.
This is a matter of serious concern and regret for several reasons. In deeply divided societies, where there is division along ethno-national lines, such measures are, we argue, essential. A Bill of Rights can be part of a human rights framework that acts as a curb on the abuse of power, and will, we believe, help to promote good governance. One way a Bill of Rights does this is by binding governments to provisions that are based on and informed by, international standards. This idea, of binding a system of governance, should not be regarded as undermining democracy but rather a mechanism to promote democracy: it provides a common framework within which politics can function. Without having that common framework ‘it would be the equivalent of asking two teams to play football without a referee or any rules’. In deeply divided societies a Bill of Rights can help provide a blueprint for good and accountable governance. If they do not act in accordance with the common framework they will be held accountable.
Our project was, therefore, one part of a wider attempt to address this inertia on rights.
During the course of this project, we heard further discussion, and received feedback, about what might be included, beyond the advice submitted by the Commission. Their recommendations comprised a range of rights embracing economic, social and cultural rights as well as civil and political rights in addition to other measures relating to enforcement and implementation.
In thinking about the responses, it is notable that the Commission’s advice was itself a compromise document; it did not include everything that, for example, civil society organisations wanted to see there. This point remains badly neglected in the public discussion, with a tendency to prioritise the voices of those who favour minimalist options. When painted in this light – and given the hegemonic (conservative) narratives that tend to dominate public life in Northern Ireland – the Commission’s advice can lazily be written off as unrealistic. It joins a long list of contributions to public debate in Northern Ireland that is much commented on but little read.
It is worth paying tribute to all those who contributed to the Bill of Rights process; it should never be forgotten that this was a significant constitutional enterprise that involved impressive levels of public participation. Like many such processes in Northern Ireland, participants rarely get the credit or the praise that they deserve for their public engagement and thoughtful interventions. One aim of this project was to address this omission.
As noted, there were suggestions that the Commission’s advice could go further and areas where developments since should now be reflected. These included:
- The rights and equality impact of Brexit;
- Women’s rights and reproductive rights;
- Marriage equality;
- Equality of citizenship (British-Irish);
- Language rights;
- Equality and, in particular, the rights of disabled people;
- More specific recommendations needed on the rights of children and young people;
- The rights of refugees (in particular, refugee and unaccompanied children);
- Freedom of movement;
- The ongoing neglect of socio-economic rights.
As stated above, the theme that tended to dominate in the responses was Brexit. It has fuelled widespread anxiety about the future and the impact on existing guarantees. The loss of the EU Charter of Fundamental Rights was much commented on, as was the repeal the Human Rights Act and replacing it with a British Bill of Rights and even possible withdrawal from the ECHR (something that may well become more straightforward after Brexit). While such a threat has been deferred, it is only temporary and raises the spectre of a deepening risk to rights after Brexit.
If the British government is sincere in wanting to ‘deliver a long-term solution consistent with the letter and spirit of the Belfast Agreement’ and to ensure there is ‘no diminution’ of the rights’ of the Agreement post Brexit, we along with others urge both the British and Irish Government, as co-guarantors of the Agreement, to legislate for a Bill of Rights for Northern Ireland. The new political process provides an ideal opportunity and formal setting for both governments and the political parties to finally address this outstanding issue.
A Bill of Rights can be the ‘sheet music for a Stormont Orchestra’. Unfortunately, and despite the considerable effort and time people devoted to this issue, the ‘Stormont Orchestra … has been playing out of tune for a very long time’. Brexit might, therefore, prove a constitutional moment for a rights-based approach to good governance in Northern Ireland, leading to the adoption of a Bill of Rights. Only then might the ‘Stormont Orchestra’ begin to play in tune and the efforts of all those who have worked tirelessly for change be respected and honoured.
Anne Smith is a Senior Lecturer at the Transitional Justice Institute and the School of Law at Ulster University.
Colin Harvey is a Professor at the School of Law at Queen’s University Belfast.