The Northern Ireland Bill of Rights appears to have made a comeback. A process that involved much collective effort seemed to have ended in the vague language of paragraph 69 of the Stormont House Agreement (SHA). With no one prepared to take responsibility for its advancement, hope had faded; like much else relating to rights and equality in Northern Ireland. However, from 2016 and 2017 more political notice began to be taken of our deficit in this area. Steadily the Bill of Rights returned as a reminder of the unfinished work of the peace process. It was notable, for example, that Sinn Féin began to prioritise it again as an outstanding commitment with transformative implications (something that civil society groups had long argued for). Independent Unionist MP Sylvia Hermon has also raised the need to revisit the Bill of Rights in the context of Brexit.
The leaked draft ‘agreement’ document suggests that one way forward for the Bill of Rights was under serious consideration. The language is again odd. In that document there is reference to an ‘ad-hoc committee’ to be created before the end of 2018, and a strong emphasis on the Agreement mandate. The Committee would be assisted by four experts appointed jointly by the First and deputy First Ministers. The starting point would be to provide advice on the meaning of ‘particular circumstances’, taking into account work completed thus far and factoring in Brexit. There is reference to an interim and a final report, with 2018 noted in the now famous square brackets.
It is hard to know what to make of this. One reaction is that after so long this is a profoundly disappointing outcome, especially for a process (launched on 1 March 2000) that was supposed to advance at Westminster on the back of advice submitted nearly 10 years ago. This level of exasperation is understandable, given the context and the documented experience of regression in terms of rights and equality. 20 years on from the Good Friday Agreement, so much of that agenda has either stalled or gone backwards. Another perspective is that this suggests that the Bill of Rights remains alive, and we have now travelled (a little bit) beyond the dead end of the SHA. In particular, this focus on a politically driven process, guided by expert advice, might just be a chance to do something that has been notably lacking thus far. That is, to secure focused political engagement (something that was absent from the Bill of Rights Forum). For example, a well-advised Committee carrying significant political weight might produce a report that could be productive and influential. Certainly anything that secured clear cross-community support from such as Committee would stand a good chance of making it into law. The risks, of course, are obvious. As with the debates on legacy, a certain weariness can set in at the prospect of yet another report. What more is there really to know? What happens if established divisions re-emerge in this Committee? In our own project we have found that much of the Commission’s advice from December 2008 retains its relevance. Although now dated in parts, when it is translated into legal form via draft legislation the advice still looks like a credible document. As with discussions of equal marriage might this now simply be a matter of introducing a Bill at Westminster, as one way to honour the legacy of those who contributed to this significant constitutional project?
20 years on from the Good Friday Agreement the conclusion is clear. The human rights and equality promises of the peace process have not been delivered. A nauseatingly shallow form of faux ‘stability first’ politics emerged that, as predicted, proved unsustainable. With Brexit, and the collapse of the political institutions, it is time to think again about the Bill of Rights, as one part only of an agenda of enhanced respect. Whatever the recriminations about the past and whatever disagreements of principle (or otherwise) there are around this, hopefully people now know that genuine power-sharing politics must rest on a framework of rights and equality for all. Achieving this framework will not be easy in the current environment but Brexit, and the utter mess that surrounds it, may well shake everyone out of complacency soon. We believe that Northern Ireland still needs a Bill of Rights, and through our project we have shown what it might look like and how it might be done.
Colin Harvey is Professor of Human Rights Law in the School of Law at Queen’s University Belfast. Dr Anne Smith is a Senior Lecturer in the Transitional Justice Institute and the School of Law, Ulster University. They are currently working on a project funded by the Joseph Rowntree Charitable Trust: “Where Next for the Bill of Rights for Northern Ireland?”