by Colin Harvey
Now that the idea of a new UK Bill of Rights appears to be buried, choices re-emerge. The predicted outcome of the London-based Commission’s work was finally confirmed in December. Where now for human rights? Thinking beyond the European Convention on Human Rights was never confined to this generation or any one process. The limitations of the Convention are well known, and critical material is not lacking. Talk of next steps circles around ‘going beyond’ and ‘building on’ existing achievements in several senses. The feeling that it is possible to improve; that the world of human rights captures more than the HRA or the ECHR. The more ill-defined talk of ‘ownership’ that resembles constitutional patriotism in desperate defence of a union in transition, and the disguised nationalist/unionist positions that occasionally surface.
The fierce debate on the HRA or the Strasbourg Court will certainly not go away, and will feature in the scheduled Westminster General Election in 2015. Time therefore to take the opportunity to question the more dispiriting trends that may surface.
What can be ignored or neglected is the genuine diversity of discussion on these islands, and thus the potential for transformative constitutional conversations and configurations. The focus should remain on how human rights protection and promotion might be advanced across these islands, and within a global setting, whatever national democratic decisions are made. The UK is in flux, with the independence referendum in Scotland next year providing a moment for reflection. The First Minister of Scotland, Alex Salmond, is talking about a convention that will draft a new constitution; one that might well include socio-economic rights. The Scottish Human Rights Commission is working on a National Human Rights Action Plan; in Wales, progress is being made on the rights of children and young persons. In Ireland, a Constitutional Convention is currently considering, on a fairly limited basis, the Irish Constitution. Calls are being made to re-energise the distinctive Bill of Rights process for Northern Ireland; and discussion of a border poll – in conformity with the Belfast/Good Friday Agreement – is underway in Ireland.
These islands – in all their multi-national, multi-ethnic and multi-cultural richness – can offer ground for a new and internationalised constitutional dialogue based on mutual recognition and respect. This ‘mood’ could also inform human rights-based discussions; those that see self-determination as part of an inclusive global human rights story. In Ireland, this might mean not viewing life exclusively from Dublin, or on the basis of a constitution that requires extensive revision. In the UK, the dominance of Westminster-centred thinking must give way to different qualitative national conversations. All of this can be presented in the tired and fearful language of separation and threat. Is this a wise or mature response? As we know, the worst things can always happen in any constitutional arrangement. Imagining the bad can help us not to forget the brutal lessons of history, but if taken to extremes will prevent us from striving for better ways to realise human rights in new formations. It is time to meet on equal terms across these islands, to globalise the debate on the secure basis of mutual respect; and for all to accept that equality speaks to our inter-communal national conversations too.
When human rights protections are under withering attack a defensive posture is sensible. Hold what you have; for now. But surely the primary long-term challenge will still remain to win the argument for enhanced and effective human rights protection, informed and enlivened by the global rights regime? So, let’s keep talking to each other about human rights across these islands.
Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast