What is this Northern Ireland bill of rights about?
For the last ten years, following the Belfast (Good Friday) Agreement in 1998 – which brought the conflict in Northern Ireland to an end – there has been a debate going on in Northern Ireland about a bill of rights. But to really understand that debate, we need to briefly consider the history of Northern Ireland in this context.
Relevant history of Northern Ireland
The Government of Ireland Act 1920 sought to establish separate Parliaments (and ‘home rule’ as it was then called) for what was to be called Northern and Southern Ireland within the UK. The 1920 Act applied to Northern Ireland (until 1998) but in what became the Republic of Ireland the 1920 Act was not accepted and never took effect, and it took its separate constitutional path from the United Kingdom. In Northern Ireland the 1920 Act provided for a devolved parliament and government at Stormont and for a separate legal jurisdiction (subject to the House of Lords having ultimate appellate jurisdiction). Nevertheless within Northern Ireland a persistent divide endured between those who wished Northern Ireland to remain part of the United Kingdom (unionists or loyalists), and those who wished it to be separate from the United Kingdom and reunited with the remainder of the island of Ireland (nationalists or republicans). The devolutionary settlement of 1920 continued until the conflict became so severe that Westminster re-assumed all legislative and executive powers in 1972, through the Northern Ireland (Temporary Provisions) Act.
What is the Good Friday Agreement?
The Belfast (Good Friday) Agreement of 1998 (GFA), and subsequent developments over a ten year period, signalled a settlement for Northern Ireland between most categories of unionists/loyalists and nationalists/republicans. The GFA has two aspects – it is a peace agreement between the unionists and republicans, but also is a bilateral treaty between the UK and the Republic of Ireland. The provisions of the GFA were enacted by the UK Parliament in the Northern Ireland Act 1998 (NIA) – the preamble to the NIA states that it is ‘for the purpose of implementing’ the GFA. Consequently, a ‘power sharing’ executive (consisting of both unionists and republicans) has been established together with a devolved assembly at Stormont.
A significant component of the GFA and the peace settlement was that the UK would pass legislation for a bill of rights for Northern Ireland. This would follow a process that was to be led by a Northern Ireland Human Rights Commission (NIHRC) that was to be established. The responsibilities of the NIHRC, required by the GFA, include the duty to advise the Secretary of State on the content of a bill of rights for Northern Ireland. The NIHRC should:
… consult and … advise on the scope for defining, in Westminster legislation, rights supplementary to those in the [European Convention on Human Rights] ECHR, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland. ((The Belfast (Good Friday)Agreement, Strand 3; Rights, Safeguards and Equal Opportunity, paragraph 4.))
Section 69(7) NIA reflects this aspect of the GFA and requires the Secretary of State for Northern Ireland to request the NIHRC to provide advice in relation to a possible Bill of Rights for Northern Ireland.
What has the Northern Ireland Human Rights Commission done so far?
The NIHRC produced its report dated 10 December 2008 recommending an extensive and comprehensive bill of rights for Northern Ireland. The report was produced following detailed and lengthy consultation throughout Northern Ireland that involved wide-ranging input from various groups and individuals within Northern Irish society. It recommended that a bill of rights for Northern Ireland should include various rights supplementary to the ECHR. The majority of these extra rights are drawn from international human rights treaties to which the UK is already legally bound. These extra rights include socio-economic rights, children’s rights and environmental rights, amongst others. They also propose widening the definitions of a ‘public authority’ and that of a ‘victim’, arguing that the definitions under the Human Rights Act (HRA) are too narrow.
The Northern Ireland Office (NIO), the UK government department responsible for Northern Ireland, after considering the recommendations of the NIHRC for a year, published its consultation document on a bill of rights for Northern Ireland on 30 November 2009.((A Bill of Rights for Northern Ireland: Next Steps, Northern Ireland Office Consultation Paper, November 2009.)) It its report, the NIO rejected the majority of the NIHRC’s recommendations on the basis that the rights suggested by the NIHRC were not specific to the circumstances of Northern Ireland (as required by the terms of reference), and that as such they might be more appropriately addressed as part of the debate over a UK bill of rights:
the Government’s initial assessment is that over half of the rights proposed in the NIHRC’s Advice are equally as relevant to the people of England, Scotland and Wales as they are to the people of Northern Ireland and, therefore, fall to be considered in a UK-wide context.((Ibid, para 3.14. Back up))
The NIO consultation document focuses on rights which in the government’s view ‘can be argued to reflect the particular circumstances of Northern Ireland and the principles of mutual respect for the identity and ethos of both communities.’ ((Ibid, para 4.1.)) Back up This is essentially limited to rights related to sectarian and community issues.
What would the relationship of a Northern Ireland bill of rights be with any bill of rights for the UK?
The issue of a bill of rights for Northern Ireland has been made more complicated by the recent debate over a bill of rights for the UK. If there was to be a UK bill of rights, what would the relationship of this bill be with any Northern Ireland bill of rights?
A number of possibilities have been suggested, from Northern Ireland having its own bill of rights completely separate from any UK one, through to the Northern Ireland bill of rights forming a chapter in a wider UK bill of rights.
It is important, however, to remember that there has been over ten years of consultation and consideration in Northern Ireland over its bill of rights. As this process is coming to its end, it may be inappropriate to stall it by tying it to the debate taking place at the UK level. There is already a high level of frustration around the Northern Ireland process; were it to be interrupted by a UK bill of rights, it may fuel tension and disappointment. This is particularly so as it is generally regarded that the Northern Ireland bill of rights is a requirement of the GFA.
What’s next for the Northern Ireland bill of rights?
Responses to the NIO consultation are due by 1 March 2010. Many human rights organisations in Northern Ireland have already made it very clear that they are extremely disappointed with the government’s proposals and its rejection of the NIHRC’s advice. With no legislative time left before the General Election, it will fall to the next government to pursue the issue.