A Bill of Rights for Northern Ireland: Next Steps
Response by the Workers’ Party
It is with some sense of frustration that the Workers’ Party is responding to this paper. The Workers’ Party has stated its demand and campaigned for a Bill of Rights for Northern Ireland for some 40 years. Four decades later, after the people of Northern Ireland have been subjected to state and paramilitary violence, sectarian terror and economic and social deprivation, we are still at the “consultation” stage.
It is particularly disheartening given that the Belfast (Good Friday) Agreement indicated that a Bill of Rights should form part of a lasting settlement, that the Northern Ireland Human Rights Commission has already conducted a lengthy consultation and made recommendations to Government on a Bill of Rights for Northern Ireland and that the present consultation exercise has effectively dismissed, ignored and diminished many of the proposals for such a Bill of Rights made thus far.
The tone and content of the consultation document in many respects confines and precludes debate. It is a narrowed down, restrictive, and in some instances misleading formulation of the recommendations presented by the NIHRC in December 2008 and further does not take account of rights which the Workers’ Party believes should form part of such a fundamental statement of rights. Additionally, it is questionable whether this consultation process amounts to adequate public consultation in the sense that it fails to meet the recognised requirements for public consultation. In these circumstances the Workers’ Party does not consider itself confined to the strictures imposed by the Consultation Paper but will also endeavour to address the questions raised therein.
As we have stated before in earlier documents, the Workers’ Party’s attachment to the concept of a Bill of Rights is not based on sentiment or on some abstract philosophical position. We believe that the purpose of a Bill of Rights is to establish and guarantee the relationship between citizens and the state. We believe that a Bill of Rights must form the cornerstone of democracy as the guarantor of the civil liberties of all citizens and of the political rights of all political parties, groups and individuals prepared to work through the democratic process. Such a Bill must enshrine fundamental principles constituting a clear statement about the nature of any political institutions established and operated in Northern Ireland.
The Bill of Rights would operate as a mechanism to permit political life to flourish and would act as a solid foundation for the democratic process. To that end a Bill of Rights must provide a positive statement of the rights which each citizen can expect and demand of the state and it must provide the means whereby those rights will be protected and enforced if they are infringed.
The Workers’ Party does not accept the Government’s contention that as some rights “are equally as relevant to the people of England, Scotland and Wales” they fall to be considered in a UK-wide context. While the publication of the Green Paper in March 2009 may have raised some debate on rights and responsibilities in the UK, the debate in Northern Ireland is at an advanced state but is still 40 years overdue. Constricting the contents of a Bill of Rights for Northern Ireland on that basis is likely to weaken the Bill and deprive the people of Northern Ireland of rights which should properly form part of the comprehensive statement of the rights which each citizen can expect and demand of the State. The real concern seems to be that if people in Northern Ireland have these rights others may demand these as well.
The Workers’ Party has previously expressed concerns that the inclusion of social and economic rights in a Bill of Rights in the context of an increasingly market oriented economy may constitute a mere sop by formulating those rights on a minimalist basis requiring only that the State uses its best efforts within the resources available or which leaves the interpretation of what is “adequate” to the bourgeois state, its agencies and its courts. We believe that the protection of civil and political rights cannot be effectively guaranteed in any meaningful fashion without a full programme of social and economic construction.
While the Workers’ Party is fundamentally and unequivocally committed to establishing social and economic rights we believe that this can only be achieved by the implementation of a radical and progressive socialist programme which is presently unlikely in Westminster or Stormont. That said, if a robust statement of economic, social and environmental rights can be articulated in a manner which addresses its concerns the Workers’ Party would support the inclusion of these rights in a Bill of Rights.
The Workers’ Party believes that a Bill of Rights for Northern Ireland should contain a statement that everyone in Northern Ireland is equal before the law and has equal rights. The Workers’ Party does not accept the Government’s concern that the expansion of protected groups would weaken the effect of existing protections by allegedly diluting the focus on the section 75 “closed list” of protected groups. We support the expansion of protected categories and the recommendation that the duty of public authorities to have regard to the need to promote equality of opportunity should be extended to other groups, the disabled and older people. (Questions A, B and C)
The Workers’ Party supports NIHRC Recommendation 6.1 and 6.2. The Party, however, has serious reservations about the language and content of any proposal to entrench an electoral system to provide for “both main communities” in Northern Ireland. The Workers’ Party has persistently objected to the concept of “the two communities” in Northern Ireland. This language consolidates and promotes sectarian division and to place such a concept at the heart of Bill of Rights diminishes the concept of citizenship on which rights should be based and institutionalises the sectarian division in perpetuity.
A commitment to anti-sectarian politics is fundamental to the political programme of the Workers’ Party. We supported the Belfast Agreement at the time but with serious reservations given the sectarian edifice upon which it was to be constructed.
The Workers’ Party challenges the institutionalised architecture of sectarianism reproduced in the Belfast Agreement and given flesh in the current devolved administration through its all-class tribal alliances; for example, the arrangements for communal registration and the ‘parallel consent’ voting method, the application of the d’Hondt rule to executive formation, the inbuilt tribal vetoes and the ongoing sectarian and communal division throughout society in Northern Ireland. We are fundamentally opposed to any proposal which would have the effect of ensuring that the sectarian division at Assembly, Executive and local government level would be replicated and entrenched in a Bill of Rights. We are committed to a political system where the majority of the population, the working class, regardless of communal background, is properly and fairly represented in all aspects of political life. (Questions D - H)
The Workers’ Party has no difficulty with NIHRC Recommendations 10.1 and 10.2. In principle we can see merit in the proposal contained in 10.3 and 10.4 subject to the following objections and reservations. First, we object to the reference to “both main communities” per se (for the reasons set out above) and to any perception that some special treatment or respect is being accorded to the identity and ethos of the communal blocs. There are others whose identity and ethos is not based on sectarian division which merit equal respect and the emphasis in the Bill of Rights on equality should be on people as citizens rather than as members of tribal blocs. There is a reasonable basis for proposing that the existing obligations on public authorities in the equality field should be consolidated into a Bill of Rights.
Recommendation 10.5 has merit provided that the requirement to take effective measures to promote mutual respect and understanding is not taken as an opportunity to promote and celebrate sectarian division rather than encouraging that which unites. Finally, 10.5 should be subject to the qualification that political opinions which espouse fascism, sectarian, gender, or race hate or homophobia are not so protected, for example as set out at 10.3. The Workers’ Party supports Recommendation 10.6. (Questions I - N)
The Workers’ Party endorses NIHRC Recommendation 11 on language rights to the effect 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. (Question O)
NIHRC Recommendation 9 proposes a right to be free from all forms of violence and harassment and refers, in particular, to violence and harassment which is domestic, sexual, gender-related, sectarian or motivated by hate. The Workers’ Party supports that recommendation. While we agree that a right to freedom from sectarian violence or harassment or a duty on public authorities to ensure such freedom cannot alone bring about the end of sectarianism it would provide an important building block in the campaign to defeat sectarianism. This duty should be placed on all public authorities and should not be limited, as suggested in the Consultation Paper, to a smaller group of public authorities such as those functions in relation to law and order or those involved in education.
Northern Ireland remains a deeply divided society. Children are educated separately. There is a polarisation in terms of where people live. The brutal in-your-face manifestation of sectarianism which sees people assaulted or driven from their homes because of their perceived religious affiliation (or race or sexual orientation) is the mere tip of the iceberg. Beneath the surface lies the deep, hidden, dangerous body of sectarianism which infects not only the sprawling urban housing estates but the drawing rooms of those who consider themselves above all this and which poisons both the body politic and civil society.
The Workers’ Party believes that there is one community in Northern Ireland, fractured and divided by sectarianism. Our ideology is founded on the politics of class. We subscribe to the creation of a working class, united and indivisible, which has sufficient power and political class consciousness to transform the society in which we live.
Every step or action that encourages, incites or promotes division is an obstacle to building a united working class and a gain for the politics of division. The politics and culture of division lacks a programme for social and political transformation. It reinforces the existing social and economic order, especially in its class relations.
The Workers’ Party promotes the ideology of class politics and repudiates the politics of identity, recognising that the promotion of identity politics is often encouraged by those who are most openly hostile to the politics of class. It is vital to recognise and oppose the prevailing orthodoxy of elevating the celebration of division as a supreme social value.
Sectarianism runs deep though public and private life in Northern Ireland. It is institutionalised in the apparatus of government. It can only be tackled by a comprehensive campaign against sectarianism on all fronts. A Bill of Rights which is based on a concept of equal citizenship must emphasise the struggle to end sectarianism.
The Workers’ Party also supports NIHRC Recommendation 16.2 that no one may be forced out of their home by threats or harassment or evicted without an order of a court and that public authorities must take all appropriate measures to ensure the protection of this right. (Questions P and Q)
The Workers’ Party believes that the issue of “victims … of the conflict” is a sensitive and controversial matter. While expressing some reservation at limiting the rights of victims to those associated with what has been described as “the conflict” or conferring special or preferential rights on these victims, the Workers’ Party is engaged in producing its own document on the issue and reserves its final position on Questions R and S. Those reservations notwithstanding, all victims require protection including rights to redress and to appropriate material, medical, psychological and social assistance.
Given the revelations about the abuse of children across the island and the Workers’ Party’s response to the recent reports documenting child abuse, including its Response to the Ryan Report on Institutional Child Abuse and the Party’s submissions to the All-Party Oireachtas Committee on the Constitution concerning children and the family, the Party supports NIHRC Recommendation 20, including Recommendation 20.8 that public authorities must take all appropriate measures to ensure the right of every child to be protected from direct involvement in any capacity in armed conflicts or civil hostilities including their use as intelligence sources.
Northern Ireland has the experience of power remaining in the hands of one political group for the greater part of the life of the state. This experience and the subsequent period of direct rule witnessed the abuse of political power and the violation of civil and political rights. It is not sufficient for the people of Northern Ireland to remain dependent on the goodwill of the government of the day. Fundamental civil rights should be clearly formulated, unambiguous and should not be conditional upon the whim of the State.
Northern Ireland has been subjected to emergency legislation since the inception of the state and the apparatus of the state has been enveloped in a shroud of secrecy in which civil and human rights were accorded little importance. The advantage of a Bill of Rights lies partly in its ability to provide reassurance in circumstances where society is undergoing change, particularly political change and uncertainty. For those reasons the Workers’ Party supports NIHRC Recommendation 3 on the right to a fair trial and no punishment without law. It is, in part, for the reason that Article 6 of the ECHR prescribes a right to a fair trial rather than a jury trial that the Workers’ Party regards the HRA as affording inadequate protection. We are opposed to the erosion of the right to a jury trial and support the position that proper protection and support should be afforded to meet the needs of participants in the trial process. (Question U).
In respect of implementation and process the Workers’ Party supports the NIHRC Recommendation that the Bill of Rights should have a Preamble although we would not support the wording suggested by the Government at paragraph 10.3 of its Consultation Paper.
The great test for a Bill of Rights is likely to arise in circumstances where the state believes or purports to believe that the exigencies of a particular situation require the state to derogate from its obligations. For those reasons the Workers’ Party supports the NIHRC Recommendation for a limited derogation clause, that is, a clause which is more stringent than the derogation clause which the HRA applies to Convention rights.
The NIHRC recommends that under the Bill of Rights “any person or body who has a sufficient interest” should be able to bring legal proceedings. A Bill of Rights should afford an expeditious remedy to those whose rights have been infringed. Section 6 of the HRA makes it unlawful for a public authority to act in a way which is incompatible with Convention rights unless it is required to do so to give effect to primary legislation. The HRA does not define “public authority” but expressly includes “courts and tribunals” and “any person certain of whose functions are functions of a public nature”. Under the provisions of the HRA a person is a victim of an unlawful act only if that person would be a victim for the purposes of Article 34 of the ECHR if proceedings were brought in the European Court of Human Rights. In terms of representative actions or public interest litigation the Convention approach is more restrictive than the approach adopted in judicial review proceedings where an applicant for review must show a “sufficient interest” to obtain standing.
We believe that individuals and organisations in addition to victims and the Human Rights Commission should be able to commence human rights cases against public authorities and that there should be a more wide-ranging definition of “public authority” for the purposes of the Bill of Rights. The Workers’ Party supports the NIHRC Recommendation. The Workers’ Party regards the Government objection that this would be likely to lead to an increase in challenges by NGOs and voluntary bodies and satellite litigation as spurious. Access to a remedy for infringement of a right would be a positive development and the courts have no particular problem dealing with the concept of “sufficient interest” in judicial review proceedings. (Question V)
The Workers’ Party agrees that the rights in a Bill of Rights should be justiciable but takes the view that the Bill of Rights should be enforced through a dedicated court with specific jurisdiction to hear and determine proceedings instituted in or referred to that court under the Bill of Rights.
A Bill of Rights should contain fundamental principles which would constitute a political statement about the nature of any institutions established and operated in Northern Ireland. It must commit unequivocally to a secular society.
The Workers’ Party believes in a society where citizens are free to practise their religious beliefs subject to respect for the rights of others, to change their religious affiliation or to choose not to hold any religious belief. No church or religious belief should be endorsed or conferred with any special rights or privileged position by the state. Politicians, elected to public office, should not use that office to endorse or express religious views or preferences in the course of their public duties. The Workers’ Party demands complete separation between church and state and by that we mean there is no place for a special position of any church, denomination or religious belief in the public life or institutions of the state. This must be stated explicitly in a Bill of Rights.
The Workers’ Party is committed to the primacy of a secular democratic society based on principles of equality and justice and supports the need to defend the state against all those who seek privileges and special treatment on the grounds of their religious belief, whatever that belief.
The Workers’ Party believes that it is the duty of the state to create public institutions and spaces which are religiously neutral and this includes schools, hospitals and places of work. Faith based schools, of whatever religion, serve to divide youth and foster difference. Children should be educated through and in a properly integrated system of education. The state should abolish religious instruction in schools and ensure that school courses are taught free from the influence of particular religious beliefs. The State should be constantly vigilant against any church-state agreement or arrangement which might attempt to impose a position or stance on political decision-making.
A Bill of Rights must also address the rights of women and, in particular, family planning and reproductive rights and the right of women to full and equal participation in political decision-making and public life. It must address the rights of workers and encompass core international standards of trade union rights. The rights of workers must not be left to the whim of government. Workers must have the right to organise, to freely establish their own governance and rules of procedure, to freely organise their administration, activities and programmes of work, to organise in workplaces and engage in collective bargaining on behalf of trade union members, to strike in defence of their own interests and in solidarity with other workers.
The creation and implementation of a Bill of Rights remains an urgent priority and must not be further delayed or diminished.
The Workers’ Party
Northern Ireland Regional Committee