There is a curious omission of any mention of the Northern Ireland Bill of Rights in the programme for the Human Rights Commission's September Conference celebrating ten years of the Human Rights Act. Is this just a strategic cooling off following the NIO's hatchet job on the Commission's final advice or an acknowledgement that there is now no chance of securing any specific Northern Ireland Bill ?
The key to the problem lies in the continuing tension between providing particular communal and individual rights for Northern Ireland as a deeply divided society and incorporating the full range of internationally accepted human rights. The rights of particular concern here in Northern Ireland include those relating to communal equality, language, education, participation in government and public authorities and the right to march. The latest and ever expanding list of international human rights standards covers much more than those.
The Good Friday Agreement referred to both in its formulation of what the proposed Bill was to guarantee: rights reflecting 'the particular circumstances of Northern Ireland' but also 'drawing as appropriate on international instruments and experience'. But the Human Rights Commission and the human rights community at large seriously misunderstood what was intended and agreed by the parties and the two governments in 1998. Instead of working on what was needed to guarantee the concerns of unionists, nationalists and the unaligned they convinced themselves that their job was to incorporate an up to date list of human rights for all..
As far back as 1977 there was a similar standoff within the then Standing Advisory Commission on Human Rights (SACHR) over what was needed in a Northern Ireland Bill of Rights. The prevailing view, led by Anthony Lester now a leading LibDem in the House of Lords, was that the international standards in the European Convention on Human Rights were what was needed and should be incorporated throughout the United Kingdom. Only Bob Cooper held out for a more specific and limited set of rights designed to deal with the obvious and pressing communal issues within Northern Ireland. Neither was successfully achieved over the next two decades.
Throughout the conflict almost everyone continued to argue for more specific protection of human rights than was provided under the European Convention. But there was no consensus on precisely what was needed or could be delivered. As the prospects for a settlement improved the British Government suggested that a non-binding declaration of rights might be possible. But the SDLP and the Irish Government wanted something with an all-Ireland focus – this is still officially on the agenda as a Joint Charter of Rights for the island of Ireland. But again nothing happened.
In the meantime SACHR had been working on the issues in its Second Report on Discrimination focusing on how 'parity of esteem' for the two communities, Irish language rights and education issues might be formulated. This led to two confidential meetings in 1993 and 1994 with the 'constitutional' parties at Kells in Co Antrim to explore what could be agreed by unionists and nationalists as 'ad-ons' to the European Convention. Papers were discussed and a measure of consensus reached that it would only be possible to move forward in the context of a more general political settlement.
During the 1990s considerable advances had also been made at an international level for the better protection for minorities as communities as well as for their individual members. This was most clearly formulated in the UN Minorities Declaration and by the Council of Europe in the Framework Convention for the Protections of National Minorities. But each clearly reserved the right of individuals not to be treated as members of minorities against their will.
All this was clearly in the minds of the two governments and the parties in drfating the Good Friday Agreement. The deal was in essence that the two governments would each incorporate the international standards under the European Convention on Human Rights; the new NI Human Rights Commission (NIHRC) was to work on possible formulations for the add-ons relevant to the particular circumstances of Northern Ireland.
When the NIHRC, initially led by Professor Brice Dickson, got to work on the project, however, most of its members thought they had a free hand in drafting a wide-ranging Bill of Rights. It started by setting up a series of working parties drawn from all the main interest groups – communities, languages, children, criminal lawyers and the like. In the absence of any clear guidance, each naturally recommended maximum protection for its sector. The result was a lengthy and unwieldy initial draft which included detailed proposals on parity for the two main communities, integrated education and the Irish language but went far beyond what the governments and the unionist parties knew they had agreed.
The British Government made this clear to the Commission in a letter from Des Brown in 2004 stating that the Commission had exceeded its remit, notably in respect of the wide range of social and economic rights which were not in reality any more relevant to the particular circumstances of Northern Ireland than in other deprived areas in Britain. By this time, however, the Commission had lost credibility as a result of a series of resignations and the Holy Cross affair. Instead of submitting formal advice it deferred to demands for the creation of a more politically representative Forum which was eventually set up in 2007.
The Forum reported in 2008 that there was broad consensus, including the unionist representatives, on a limited range of specific communal and related rights but strong unionist disagreement on the wider range of socio-economic rights supported by human rights activists.
Instead of taking account of this serious division and clear signals from the British Government that it would only enact a Bill with cross communal support in the Assembly the newly appointed NIHRC led by Professor Monica McWilliams pressed ahead with a revised draft based almost exclusively on current international standards, downplaying or dropping provisions designed to guarantee the status of the Irish language, political power sharing integrated education, and the treatment of those who do not wish to be treated as members of the two main communities. Its final advice adopted an unconvincing formulaic statement on what it regarded as relevant to the particular circumstances of Northern Ireland. It increased unionist opposition by refusing to allow their representatives on the Commission to explain their dissent or to submit a minority report. It was hardly surprising that in response to this uncompromising attitude the Labour Government commissioned a root and branch shredding of the Commission's final advice by a former NIO civil servant. And none of the main Northern Ireland parties now regards the Bill as a political priority –'It is not an issue on the doorsteps', they say.
To complete this sorry story the new Conservative-led Government is even less enthusiastic about human rights and is thinking only, if at all, about a UK-wide bill of rights and responsibilities. The only remaining option is that this might just include a few specific provisions for communal rights in Northern Ireland. Which was what might already have been better delivered by a more politically savvy Human Rights Commission.
Tom Hadden was a member of SACHR from 1985 to 1990 and the NIHRC from 1999to 2005.
