Human Rights in Ireland is delighted to welcome this guest post from Catherine Turner, Transitional Justice Institute, School of Law, University of Ulster. You can find out more about Catherine on our guests page.

Since the signing of the Good Friday Agreement in 1998, significant amounts of time, effort and money have been poured into the drafting of a bill of rights for Northern Ireland. The reasons for this process are well documented, focusing primarily on the need for a “strong and inclusive” bill that will reflect the “particular circumstances of Northern Ireland”.

In an article published this month in (2010) 3 Public Law 451 (Westlaw UK subscription required), I suggest that while there has been much focus on the proposed content of a bill of rights, fundamental questions surrounding the desirability of legal entrenchment have been overlooked. At the heart of the bill of rights debate lie fundamental questions of law, state and society. There are competing political philosophies at play which, if properly understood, can contribute significantly to our appreciation of the divergent opinions and views on the proposed bill.

In general terms, Nationalist and Republican parties have been supportive of the Human Rights Commission’s proposals for a bill of rights, Unionist parties have not. While it would be easy to dismiss this as borne of traditional political antagonism, closer examination of Unionist political philosophy reveals deep and genuine reasons for this hostility. It should be noted at this point that Unionism is not a homogenous political entity. It is not possible to ascribe uniform characteristics to the different parties, and political philosophy varies within Unionism itself (even without adding Loyalism to the equation). Nevertheless, broadly speaking, examination of the political tradition within which Unionism operates reveals a conception of law that varies greatly from that which is becoming the norm since the Good Friday Agreement. The increasing use of law to achieve political reform therefore presents a challenge to traditional Unionist conceptions of law’s function.

Democratic responsibility features heavily in Unionist political thinking. This reflects the primacy afforded to the position of Parliament as sovereign law making authority. Law in these terms gains its legitimacy through the fact that it is promulgated by an elected body and enjoys the consent of the governed. Under such a procedural vision the substance of the law is not questioned, in stark contrast to the thorough scrutiny that is undertaken through the lens of human rights. This focus on democratic responsibility is also a double edged sword. While it primarily vests the power of law making in the citizens of the state, through their elected representatives, it also requires recognition of the state and of its law making authority. This has been a thorny issue in Northern Ireland, and one which makes democratic accommodation within a political rather than a legal framework more precarious.

Much of the law making that underpins legal reform in “transitional” contexts (within which category Northern Ireland is often included) has as its purpose the reform of a legal system that has been deemed to be problematic. Here a clear tension emerges between the idea of law as existing to facilitate a system of government (regardless of the outcome) and law as a means of achieving political or social reform. A system which uses law to achieve particular outcomes, such as substantive equality, can effectively remove certain contested areas of policy from the realm of politics and place them at the discretion of the courts. This results in the situation whereby laws which would not pass were they subjected to the democratic process are being enforced on the basis of broadly defined “right” and regardless of opposition. In the context of the bill of rights debate some of the most difficult issues have been those surrounding reproductive rights and language rights, for example. Legislation of this nature is viewed as extending its reach into matters which are properly the preserve of the legislature, and this directly contradicting Unionist assumptions about the role of law and of the state, namely that the law reflects the will of the people as expressed through elected representatives engaging in the democratic process.  Casting rights in terms of legal obligation effectively replaces the sovereignty of Parliament with the sovereignty of law, tying the hands of the Assembly on a broad range of issues.

Another aspect of Unionism worth mentioning is its close identification with the tradition of liberty, traced back to the Glorious Revolution of 1689. There is a clear emphasis on freedoms of conscience, worship, assembly and speech evident in the political rhetoric of both the main Unionist parties.  This emphasis on civil liberties reflects a deep distrust amongst Unionism, and liberalism more generally, of centralised authority and social law making. Crucial to a Unionist understanding of law and right is the freedom of independent thought, the freedom to dissent from authority.  Democratic contestation is not the same as legal claims making. Once a bill of rights attains the status of law, the opportunity to challenge or dissent will be significantly reduced.

This opposition to the bill of rights is not unique to Unionism or to Northern Ireland – many of the concerns of Unionism resonate in the UK more broadly. Tensions exist surrounding the balancing of rights and responsibilities, and the tension between judicially enforceable rights and democratic process is well documented. In transitional societies, however, these tensions tend to be overlooked. Arguments surrounding the necessity of reform – such as the introduction of a bill of rights – are subsumed into the broader narrative of transition, with its pre identified telos.  Arguments which question the desirability of change are more easily dismissed as misinformed. The allegation being made by some Unionist politicians is that the proposed bill of rights represents an ideological Trojan horse, used as a means of introducing highly particular political interests. However, rather than acknowledging that political differences that exist, and allowing a proper debate to result from this clash of philosophies, these interests are couched in the language of human rights, whose implementation is a matter of compliance with legal standards rather than pursuit of a political agenda.

The introduction of an expansive bill of rights for Northern Ireland would arguably represent a significant shift in the political arrangements – a fundamental re-allocation of power between the legislature and the courts. This is not an unnecessary detail but a core question of public law – one with which the bill of rights campaign has as yet failed to engage.

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Written by Liam Thornton

Liam Thornton is a lecturer in law and director of clinical legal education in University College Dublin. His particular research interests are on issues relating to the welfare state, human rights, socio-economic rights, Governmentality, immigration law and EU law. You can contact him at liam.thornton[at]ucd.ie or (+353) 1 716 4129.