A Northern Ireland Bill of Rights

A significant component of the Belfast (Good Friday) Agreement of 1998 (GFA) and the peace settlement was that the United Kingdom (UK) would pass into law a Bill of Rights for Northern Ireland. The GFA then placed responsibilities on the Northern Ireland Human Right Commission (NIHRC) to advise the Secretary of State on the content of this Bill of Rights for Northern Ireland. The Commission’s terms of reference included a responsibility to consult and advise the UK Government on a Bill of Rights, reflecting the particular circumstances of Northern Ireland. A mandate that the commission seems to have fulfilled.

Any Bill of Rights must be reflective of international standards and must pay attention to the particular circumstances of the society within which it will operate, if it is to gain recognition and acceptance. A Bill of Rights must be in writing, providing everyone in Northern Ireland with the same rights enjoyed by anyone else in the UK, regardless of the fact that the UK will be leaving the European Union. The advice given to the Secretary of State for Northern Ireland on the Northern Ireland Bill of Rights by the NIHRC reflects most international standards such as the right of free speech and political thought, the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity and the right to freedom and expression of religion, just to name a few. However, there are some rights which are relevant to the particular circumstances of Northern Ireland which must be included in any Bill of Rights. In relation to Brexit, the following rights and issues have been highlighted and should be properly addressed; citizenship equality, freedom of movement, the equivalence of rights on the island of Ireland, EU citizenship rights and voting rights.

The NIHRC recommended that “Public authorities must fully respect, on the basis of equality of treatment, the identity and ethos of both main communities in Northern Ireland”. The GFA explicitly stated that the Bill of Rights should “reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem”, meaning that rights to culture, identity and language should form part of the Bill of Rights as enforceable provisions in their own right.¹ The emphasis on “both communities” should not be used to entrench divisions between the two communities but to provide the “rights of all on an equal basis” as recommended by the NIHRC.² This also entails that these rights should extend to individuals that do not fit neatly into either communities but persons belonging to a range of communities in Northern Ireland.

It should be noted that the NIHRC left the meaning of “identities, ethos, and aspirations” open to be developed by case-law where necessary. However, it is essential for a Bill of Rights to contain guidelines as what could be considered as “identities, ethos, and aspirations”, as leaving it open without guidance might leave room for a narrow interpretation. The NIHRC also pointed to respect, understanding and tolerance in relation to linguistic diversity, and to this end, it is also imperative for people to have the right to use the language of their choice. The NIHRC recommended that “Public authorities must, as a minimum, act compatibly with the obligations undertaken by the UK Government under the European Charter for Regional or Minority Languages in respect of the support and development of Irish and Ulster-Scots”. To this end, it should be advised that the Bill of Rights should grant equal status to both English and Irish as official languages in Northern Ireland as well as to give recognition to Irish and Ulster-Scots as indigenous languages by granting them “special status” as reflected in the GFA. This is equally supported by the NIHRC which states that there is also a need to protect other linguistic, cultural and ethnic minorities so as to prevent the creation or reinforcement of a hierarchy of rights protections.

Also of importance is the right of individuals born in Northern Ireland “to identify themselves and be accepted as Irish or British citizens, or both, as they may so choose” as stated in Article 1(vi) of the GFA. It should also be noted that this provision understands national identity in terms of citizenship, as opposed to guaranteeing equality of treatment between British and Irish national identities, therefore, it is essential that this equality is reflected in the Bill of Rights. It is essential that government and public bodies have a duty to “promote tolerance, mutual respect, understanding and co-operation among all persons living in Northern Ireland, irrespective of their cultural, ethnic, religious or linguistic identity, in particular in the fields of education, culture and the media”.³

The taking of oaths has particular sensitivity in Northern Ireland and no one should be compelled to take an oath or to take an oath in a manner that is contrary to their religion or belief, or that requires them to express a belief that they do not hold. A special provision to this effect should be included in the Bill.

Children rights should also be reflected in the Bill of Rights as was alluded by the GFA and echoed by the NIHRC recognising that the trans-generational impact and continuing legacy of the conflict have had serious consequences for children in Northern Ireland, as almost 300 children were killed and thousands were affected as a result of having family and friends injured, killed or imprisoned. Children were abused by both state and non-state actors, and some were subject to so-called punishment violence by armed groups, thus in order to repair the damage of the past and protect future generations, it is of significant importance that children in Northern Ireland are afforded additional protection.⁴

The GFA also acknowledged “the sensitivity of the use of symbols and emblems for public purposes and the need in particular in creating the new institutions to ensure that such symbols and emblems are used in a manner which promotes mutual respect rather than division. Arrangements will be made to monitor this issue and consider what action might be required”. Symbols, including flags, and decisions regarding the flying of flags and display of such cultural symbols have been recognized by the Government as far-reaching and as having social and economic consequences. Thus a number of Government agencies have developed a Joint Protocol which recommends that “flag flying should be limited to particular times and particular dates”. It is noted that the NIHRC did not include this in its advice to the Secretary of State for Northern Ireland on the Bill of Rights for Northern Ireland, however, the need to ensure that symbols and emblems are used in a manner which promotes mutual respect rather than division should be reflected in the Bill of Rights.

The right of victims to remember as well as to contribute to a changed society is included in the GFA, considering the history of Northern Ireland this right is imperative, the agreement goes on to say that the achievement of a peaceful and just society would be the true memorial to the victims of violence. The NIHRC recommended that “legislation must be enacted to recognise all the victims of the Northern Ireland conflict and to ensure that their rights are protected. These rights include rights to redress and to appropriate material, medical, psychological and social assistance” without explicitly looking at the right of victims to remember and contribute, it is important to have this reflected in the Bill of Rights as some reflections on the Northern Ireland past might be viewed in a negative light.⁵

The right of women to full and equal political participation is recognized in the GFA, however, the NIHRC recommended wider rights to equality and prohibition against discrimination which included gender. The NIHRC stated that inequality between the two main communities and discrimination has been a source of conflict in Northern Ireland and the way in which government has responded to further inequalities suffered by individuals outside of the two main communities is also particular to Northern Ireland, therefore, it is imperative to address it in the Bill of Rights. Although this recommendation is compliant with international instruments and draws upon international experience as well as its supplementary protection to the European Convention on Human Rights. The emphasis of the right of women to full and equal political participation under GFA indicates that this right deserves its own recognition in the Bill of Rights.⁶

The GFA speaks of the right to seek constitutional change by peaceful and legitimate means. The NIHRC recommended that “there must be an independent electoral authority to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with laws which are compatible with a Bill of Rights for Northern Ireland” under democratic rights as a supplementary recommendation to the Human Rights Act 1998 and the European Convention on Human Rights. While this recommendation is also compliant with international instruments and draws upon international experience, considering the history of Northern Ireland it is essential to have the right to seek constitutional change by peaceful and legitimate means explicitly reflected in the Bill of Rights as alluded by the GFA.⁷