Sick and tired of being told the Bill of Rights is dead

Guest Post by Brian Gormally, Director of the Committee on the Administration of Justice (CAJ)

I’m sick and tired of being told I’ve got to apologise for human rights. You know what it’s like: “Oh human rights have got so much baggage! Can’t we find different words?” Or: “Human rights have been brought into disrepute – imprisoned killers wanting the vote, we can’t deport people free because they’ve got cats, good Christian bakers getting persecuted for not selling gay marriage cakes!”

Well, I’m sorry, I won’t apologise for being part of probably the biggest solidarity movement of human beings on the planet. In every single country, in every region of every country I suspect, there are human rights defenders. Often courageous people who look to international human rights standards as their route map to a better life. Whether it be a South Pacific islander protesting against climate change, a woman in Sudan opposing female genital mutilation, an Inuit fighting oil exploration on his hunting grounds, a journalist in Kazakhstan seeking free speech, an activist in Syria monitoring “collateral damage” from bombing or an old lady in Ballymurphy looking justice for her son shot dead forty years ago – they all look with hope to human rights standards. What is there to apologise for?

I’m sick and tired of being told to dance to the tune of the British tabloid press. It’s a song of racism and xenophobia, an anthem of bigotry – a vicious, anti-human soundtrack designed to cover up repression, torture and murder by the state, when “national security” demands it. We need to resist the anti-human rights barrage, not pander to it.

I’m sick and tired of being told that in Northern Ireland human rights are divisive, not conducive to good relations and seen as belonging only to republicans. Well, it’s simply not true. Those who try to sectarianise human rights are divisive. Those whose squalid political opportunism requires sectarian division oppose human rights precisely because they belong to all by virtue of their simple humanity. Many Loyalists and Unionists are working to reclaim human rights for their community against those, on whichever side, that characterise them as weapons in a sectarian conflict. Furthermore, those who preach reconciliation and good relations on the basis of inequality are both reactionary and ridiculous.

Finally, I’m sick and tired of being told that the Bill of Rights is a failed project, irrelevant to the political power games at Stormont and a horse so long dead that it’s not worth flogging. It’s not that these views don’t have weight – it would be as silly to ignore political realities with regard to the Bill of Rights as it would be to believe that human rights in general are not obstructed and resisted every inch of the way. It’s that we should not do as we are told – we shouldn’t drop the idea altogether nor should we look for some lowest common denominator – which would be pretty low, let me assure you.

Well, then, what should we do? The reason I started with a rejection of the attempts to dismiss or belittle human rights was in order to stress that we’ve got to get away from the idea that human rights are something outré or outlandish, an imposition by foreigners, an offence against common sense. In fact, they are the only set of values and exact standards that unite people fighting for a better life in every corner of the globe and, what’s more, in Northern Ireland they are the essential basis of our peace process and our attempts to build a new society. So we should not let opposition sap our confidence, but re-assert the vital importance of human rights in every aspect of society.

At this moment in time, the political route forward seems to hold little promise. Our system of devolved government, necessary as it is, in my view, is not conducive to legislative progress, whether on a Bill of Rights, a Single Equality Act or other needed legislation. The system may be able to stop bad things happening, but also good ones. That does not mean abandoning the political arena or retreating into a bitter cynicism with regard to the “folks on the hill.” Politics and politicians are essential to progress. In fact, the foundation of our current society was the quintessentially political act, the exercise of self-determination, the act of constitution-making by all the people of this island in the simultaneous referenda on the Belfast Good Friday Agreement. That act gives all of us, politicians and civil society, a mandate to move forward; neither time nor political disagreement can nullify that continuing mandate. If there is stasis in politics, then those of us in civil society may have to step up to the plate.

What does that mean in practice? Well, in general terms, the overarching goal should be the achievement of a rights based society, building on the promises of the peace process and the various agreements made as part of it. Peace cannot be maintained without human rights – in Northern Ireland human rights activists are also peacebuilders. We need to resist rollback and demand full implementation of commitments already made as well as those necessary to bring our society up to date with contemporary human rights standards. More specifically, in every area that affects the lives of ordinary people, we need to ensure that the relevant agencies of the state adopt a rights based approach to decision making, using appropriate laws, regulations and standards.

Achieving a rights based society will involve empowering and mobilising rights bearers, probably more often on single issues than in a general movement, lobbying and pressurising duty bearers from local officials to ministers and engaging in public debate in the media as possible. Our messages need to be clear, combative when necessary, but with the human element – the real effect of rights violations – emphasised.

We do also need to be more positive, not in the sense of playing down criticism of the state, but in the sense of proposing solutions rather than sitting back with a simple negative critique. In other words, in any particular area, we should not wait for others to make proposals and then criticise them from a purist perspective, we should instead propose practical but human rights compliant measures which could meet identified needs. In so far as we are experts on areas of human rights, we should deploy that expertise in practical, useful ways. Part of this may involve being “critical friends” to institutions, especially the new ones established as part of the peace process, who have a role in building the rights based society. Knowledgeable, active NGOs can help progress and hinder rollback in critical statutory agencies whatever their area of work, from housing to health, from policing to economic development.

Part of this approach is also to use international treaties, especially those ratified by the United Kingdom, as settled law. They may not be directly justiciable in the courts, but they should be regarded as the established norm, the starting point and continuing guide for decision making in relevant areas by all public authorities. We should not feel any sense of hesitation or embarrassment in asserting the binding force of a treaty like the Convention on the Rights of the Child or the International Covenant on Economic, Social and Cultural Rights. If anyone in a public authority objects, the simple riposte is: either the UK Government was being massively hypocritical in ratifying the treaty or it meant it to be a guide and a measure of good practice if not to have direct legal effect. In taking this approach, the moral force is definitely with us.

This general thrust is about creating facts on the ground. It means assuming the normative strength of a human rights approach, not asking anyone’s permission or feeling it necessary to engage in the tabloid level of debate but insisting on the incorporation of relevant standards in every aspect of society. If we look around us, we can see that some vital aspects of society, notably policing, are already based on explicit human rights approaches – we have to extend, generalise and normalise that.

What does all this mean for the Bill of Rights? I want to propose that we stop being vague and aspirational about the matter. In a very real sense we already have a Bill of Rights. Seven years ago, now, the Northern Ireland Human Rights Commission presented its Advice to the UK Government. After perhaps the most comprehensive and lengthy consultation exercise ever conducted in Northern Ireland, after an exhaustive process of detailed debate by politicians and civil society in the Bill of Rights Forum, the Commission of the day looked through every word of the input, all of the proposals made about content, developed and applied detailed tests derived from the mandate in the Agreement, took legal advice and produced a measured, reasonable and progressive text recommending the broad content of a Bill of Rights.

Why reinvent the wheel? We now know what should be in a Bill of Rights. Of course, we could all argue that this or that should be in or out. We could all indulge in a game of “fantasy rights” and construct our perfect utopia. But in the real world, we have a text which is at least as authoritative as something like the Patten Commission report. It may be that the way to legislation is currently blocked by the fact of the UK Government having invented a pre-condition of political consensus amongst the Assembly parties before they will pass anything into law. In that case, very well, let us treat the 2008 Bill as “soft law.”

As human rights activists we know some of the implications of that designation. It means we can use it as a guide, a signpost to the direction of travel. We can use it in argument and as an example of what could happen. We can claim it as a statement of good practice. As is the case with many international legal instruments, we can accurately represent it as an emerging consensus which may not yet have reached the status of binding legislation but which has powerful moral force. Some courageous lawyer here may even risk the wrath of a judge and plead it as a guide in a relevant case!

In a more detailed way, those NGOs, lawyers and activists engaged in particular areas, say, health, education or identity and culture, could work out what difference the Bill might make in particular cases. This would be both to point to a way of solving the particular issue and to argue for the enactment of the relevant provision.

In line with that, we might make efforts to “harden” the draft Bill. The Advice is constructed to read in each section: “A provision should be drafted to ensure that …” Well, why not draft the provision? It would be a very interesting project to take each section of the Advice and commission a parliamentary draftsperson to actually turn it into draft or model legislation. I can testify through my own involvement in the drafting group that produced a Model Bill to implement the Stormont House Agreement that the process is stimulating and enriching. The project is not simply one of putting statements into legalese – it involves the conceptual task of envisaging how things might work, the consequences of various drafting options and, to put it simply, bringing normative positions into the real world of legislation which would make actual change occur.

The point of all this is not that in one or two years the UK Government will crumble and enact the Bill of Rights. The point is to shift the terms of debate. In general, we need to move from the defensive when it comes to human rights and take the offensive. International standards – minimum standards we should remember – have gone through an exhaustive process of negotiation and the result is a settled statement of international opinion. International standards are the norm, the new common sense, the starting point for debate. This will not mean any less argument, or necessarily, more success. It will mean, however, that we are on the front foot, not the back foot and that is a better place to be.

In terms of the Bill of Rights, let us move away from a focus on the political process. Let us stop thinking of ever more inventive ways of redefining the idea, of twisting and turning until we come up with something – anything – that we can call a Bill of Rights. We have a sensible, measured proposal – let us stop being diffident about its provisions, start regarding them as soft law and set about hardening their impact, as and when we can.