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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