Fortnight Publications Ltd.

Time to Go for a Bill of RightsAuthor(s): Kevin McNamaraSource: Fortnight, No. 288 (Oct., 1990), p. 11Published by: Fortnight Publications Ltd.Stable URL: http://www.jstor.org/stable/25552552 .

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The director of the Northern Ireland Eco

nomic Research Centre, Graham Gudgin, had

earlier argued that the already-existing degree of regional autonomy for Northern Ireland

(albeit marked by a 'democratic deficit') al

lowed some departure from UK-wide Thatch

erism (the regional structure of the Federal

Republic of Germany has, of course, been a

strong factor in its more even post-war eco

nomic development). And some elements of

this alternative were indeed taken up in the

modified strategy for the region launched by the DED in April.

In Fortnight 282, the respected English socialist intellectual Bernard Crick focused on

the constitutional question, stressing how the

irresistible rise of Scottish aspirations for au

tonomy?as expressed in the Constitutional

Convention, for example?had made the an

cien regime of the centralised British state

begin to look very creaky. Echoing the conven

tion's interim report last October, Crick argued that the Scottish question could force on the

English the idea of a decentralised, federal

arrangement for the UK?along, perhaps, with

electoral reform, a bill of rights and a written

constitution, as advocated by Charter '88.

Crick stressed, however, that federalism

could not be applied in a uniform way?Bel

fast, for example, isn't as British as Finchley

(whatever that means)?and there had to be a

recognition of the specific relationships in which

the component UK regions/nations were

involved. Fortnight 283 and 284 looked again at the constitutional issue, this time in terms of

the special relationship of the north to the rest

of Ireland. In the wake of the hiatus caused by the Supreme Court judgment in the McGimpsey case, the renowned legal figure and Labour

presidential candidate Mary Robinson argued for the incorporation of article one of the Anglo Irish Agreement into articles two and three of

the republic's constitution, in order to clarify that the nationalist aspiration to the "reintegra tion of the national territory" is indeed that?

not a "constitutional imperative" reckless as to

the consent of a northern majority. Also in Fortnight 284, the magazine's cor

respondent in Brussels, Bernard Conlon, indi

cated how north and south might converge,

economically at least, in the context of Euro

pean integration. (He pointed out how in this

context nationalists could be partitionist as

well as unionists?for instance, in terms of the

republic's 48-hour cross-border shopping rule.) This seemed to chime with the mood of those

inside, if not outside, the Institute of Directors

conference addressed by the taoiseach, Charles

Haughey, a month earlier.

Meanwhile, the vice-president of the Euro

pean parliament, David Martin?a Scottish

Labour MEP, whose radical plans for a strength ened parliament in the context of a pooling of

sovereignty were overwhelmingly endorsed at

Strasbourg?presented Northern Ireland's fu

ture as part of a 'Europe of the regions' with

substantial powers devolved to it. In Fortnight

281, Bernard Conlon had made the case for a

Northern Ireland office in Brussels to ensure

that the north' s regional identity was adequately

recognised by the European Commission.

Regionalism, federalism, constitutionalism ... how does it all come together in terms of the

north? In Northern Ireland: the international

perspective (one of the half-dozen or so crucial

books about the 'troubles' of which, mind

bogglingly, the principal architect of the Brooke

initiative was not aware), Adrian Guelke con

vincingly argued that constitutional uncertainty is at the heart ofthe Ulster problem. It provides the motor of sectarian entrenchment as the

various parties seek to nudge the situation in

one direction or another. It provides the engine of political violence, as different groups argue from different perspectives on the legitimate constitutional position as to what kind of force

can legitimately be applied. And, between the

proponents of violence, official or unofficial, and those of conventional politics, the perpet ual uncertainty establishes a complex synergy? the hands of 'constitutional' politicians are not

always as clean as they would like to think.

But it is the objective constitutional insecu

rity which goes to the root of what is often

popularly perceived as simply intransigence by those 'politicians' (it is true, of course, that

willing actors have to be found to play their

roles). Here lay the fundamental flaw in the

Brooke initiative: it refused any intellectual

seriousness in favour of a rather archaic, male

process of chivvying, cajoling and clapping on

the back?as if the contrived chumminess could

spirit the difficulties between the parties away.

These, inevitably, had their reprise, and the

circles turned out not to be squared after all.

So how can the north be set in a stable

constitutional context, without this represent

ing 'victory' for one 'side' or the other? What

is emerging as the key to unlocking the prob lem lies in the decline in the modern Europe of

the 'nation-state' (always a misnomer in the

case of the UK, as it happens) in favour of

regionalism/federalism on the one hand and of

supranational institutions on the other?pres sures towards greater individual freedom and

regional autonomy on the one hand, on the

other towards new kinds of international soli

darity and recognition of the need for global solutions to problems.

If Northern Ireland acquired a new regional

assembly, that would be in and of itself a

progressive step to democratise direct rule, to

reduce the 'democratic deficit'. If it acquired that regional assembly, elected by proportional

representation and circumscribed by the Euro

pean Convention on Human Rights, because

such assemblies were being set up across the

regions and nations of the UK, there would be

the added value of assuaging unionist insecu

rity that devolution was merely a half-way house to a united Ireland, while assuaging nationalist insecurity that devolution was sim

ply code for a Protestant parliament for a Prot

THE DEBATE over a bill of rights divides those who ^^^|Kp^||:::|^^^H seek to protect civil liberties. Powerful arguments QJ^^^h^KP^^ jS^^^H have been put forward in opposition to it from within iPjJ^^B ^^^^^H

The most important objections are threefold: a f '^^B Jm^^^^^^^M bill of rights would give additional authority to a re- I |: , 4m^^^^^^^^k actionary judiciary, it could not be sufficiently H^wk ^i^^^^^^^H specific to give genuine protection to human rights ^^Hf? ^^^^^|^^H and it would be ineffective because of the lack of en- ^Mi?fll^HH

trenchment. These arguments cannot be dismissed lightly. The claim that a bill of rights would enhance the power of a reactionary judiciary has

less force in Northern Ireland where, on the whole, judges have not brought the law into

disrepute in the way some of their English colleagues have done. Nevertheless, the

province's judiciary is ultimately subject to the House of Lords in London. This diffi culty could be tackled by restraining the Lords, by binding it by the European Conven tion on Human Rights and by the precedents of the European Court of Human Rights. Even so, judicial reform is needed if we are to have judges who are not totally unrepre sentative of the society they exist to serve.

The idea that a bill of rights cannot be specific enough to provide real protection is based on a misunderstanding of its purpose. In order to endure, such a document

would have to be flexible. It should set boundaries for civilised executive and legislative behaviour. Too strict a definition of rights would hinder the possibility of responding to change and to the potential conflicts between rights. That is why the best way to enact a bill of rights is by incorporation of the European Convention into domestic law.

Specific pieces of legislation conforming to the bill of rights should be employed to give stricter definition of rights?these could be changed from time to time to take account of changing attitudes and values.

The lack of entrenchment of a bill of rights is not a good argument against it: rather it provides an additional reason to support it. Nor does the introduction of a bill of rights preclude the introduction of entrenchment mechanisms. In any case, no system

of entrenchment is perfect. "The price upon which God hath given liberty to man is

eternal vigilance." A bill of rights would assist that vigilance. Violation of it would

trigger resistance to oppressive legislation, thus providing an in-built entrenchment mechanism.

A bill of rights is not a panacea: it is an important part of a package of necessary reforms/But nor should the symbolic dimension be neglected. The introduction of a bill of rights would be a clear expression of a commitment to human rights?an essential element in an eventual resolution of the conflict in Northern Ireland.

FORTNIGHT OCTOBER 11

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