In July 2012 the Commission on a Bill of Rights issued a second consultation document, further to the one it produced in August 2011. Unsurprisingly, the second document gives little away about what the Commission might say in its final report, due by the end of 2012. None of the questions posed in the second document give much of a clue as to what the Commissioners thought of the responses to similar, if less specific, questions in the first consultation document.
The whole process is slightly surreal, as most commentators think that members of the Commission are poles apart concerning the recommendations they want to make. What has been really disappointing in this whole debate, however, has been the attitude struck by some of the most prominent and respected NGOs and individuals working in the human rights field in the UK. To a very large extent they have played the political game, arguing that a Bill of Rights is not required because we already have the Human Rights Act 1998. They fear that the enactment of a Bill of Rights will almost inevitably dilute the effectiveness of that Act, somehow making it more British and less European.
In addition, some commentators from Northern Ireland have argued against a UK Bill of Rights because it would reduce the likelihood of having a specific Bill of Rights for Northern Ireland. One or two have even intimated that a ‘British’ Bill of Rights would somehow be unacceptable to Irish nationalists. Yet I don’t know any Irish nationalist who thinks that the UK Human Rights Act is a bad thing. In some respects it is better than Ireland’s 2003 Act. No Irish nationalist argued against the Human Rights Act being extended to Northern Ireland; indeed it was one of the crucial commitments made in the Good Friday Agreement.
Personally I prefer to see the Commission as an opportunity to argue for what is right and workable, not for what is politically expedient. I do not think it is acceptable to give up on the inclusion of socio-economic rights in a UK Bill of Rights just because of a risk that the Conservative Party might want to tweak bits of the Human Rights Act (which Liberal Democrats would anyway strongly oppose). I also see it as ironic that some commentators in Northern Ireland are now adopting an overtly political approach to a UK Bill of Rights, because the hallmark of much of the work that has been done on a Bill of Rights for Northern Ireland during the last decade has been its disregard for political realities. How else can we explain the reception accorded to the Human Rights Commission’s final advice on a Bill of Rights in December 2008? It was as if the Commission was blissfully unaware that there has been, and will remain, very staunch unionist opposition to a far-reaching Bill of Rights for Northern Ireland.
And let us not be misled by the old canard that, whatever the views of elected unionist politicians, the vast majority of unionist voters want a Bill of Rights. That is just sophistry, because it is based on survey results where the questions asked were of the motherhood-and-apple-pie variety. Do you think you should have a right to an adequate standard of living? Do you want the right to the highest attainable standard of physical and mental health (not just health care)? Do you want the right to work? Who would answer no to such questions? But who would answer yes if the question was, would you like a group of rich white elderly men to decide on whether your standard of living was adequate or your accommodation was appropriate to your needs? That would be the result of allowing the extent of socio-economic rights in Northern Ireland to be determined by Northern Ireland’s Court of Appeal and, on appeal, by the UK’s Supreme Court.
I hope that the Commission on a Bill of Rights can reach consensus that a Bill of Rights for the UK would be a good idea. I would like that Bill to build on the Human Rights Act, not to undermine it. I want it to include references to socio-economic rights, but not in a way which allows judges to have the final say over their vindication. I would prefer the Bill to impose duties on the UK and devolved governments to demonstrate how they are seeking to progressively realise those rights in a reasonable way. The duties should be enforceable only through traditional judicial review applications, political pressure, condemnation by international bodies, and the court of public opinion. If there is one right which should be included and fully enforceable through the courts in Northern Ireland it is the right to integrated education. Sadly, that was just about the only right which the Human Rights Commission did not mention at all in its 2008 advice to the Secretary of State.