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Wg Hart Workshop 2018 Building a 21St Century Bill of Rights University of London 11 & 12 June 2018

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Wg Hart Workshop 2018 Building a 21St Century Bill of Rights University of London 11 & 12 June 2018 WG HART WORKSHOP 2018 BUILDING A 21ST CENTURY BILL OF RIGHTS UNIVERSITY OF LONDON 11 & 12 JUNE 2018 Designing a Bill of Rights in Contested Contexts Draft 4 May 2018 Anne Smith and Colin Harvey Introduction Drafting Bills of Rights is a formidable constitutional task for any society but arguably it is particularly challenging for ‘deeply divided societies’1where there is a ‘differential affinity to rights’.2The problems attached to drafting and enacting a Bill of Rights, in such contexts, should not be under-estimated. Drawing upon the preliminary findings of a research project funded by Joseph Rowntree Charitable Trust (JRCT), this paper will examine the Northern Ireland experience, where the process is ongoing and unresolved. This paper will emphasise the need for a bottom-up approach and a process underpinned with principles reflective of participatory democracy, including transparency, inclusiveness, public participation and responsiveness. The paper will argue that notwithstanding serious difficulties, the Northern Ireland Bill of Rights debate has many of the features of a bottom-up approach. It has arguably complied with the key markers of deliberative democracy, and in many senses is a model for the facilitation of public participation in the drafting of Bills of Rights and constitutions elsewhere. The process does, however, also raise hard questions about how to design an effective process in the context of ethno-national division. The paper will then note the dangers that governmental disinterest and a lack of political leadership can have on the process of drafting a Bill of Rights. The paper will highlight that the Northern Ireland Bill of Rights is now stalled and essentially trapped 1Arend Lijphart, A. Democracy in Plural Societies: A Comparative Exploration (Yale University Press 1980), 5. 2 R Whitaker, ‘Debating Rights in the New Northern Ireland’ (2010) 25(1) IPS 23, 27. within the contours of perspectives of rights within this ethno-national contestation. It will conclude by putting forward recommendations as to how the process might advance including through the work the authors are undertaking as part of the JRCT research project. Bills of Rights: Drafting Process The Northern Ireland process has been slow, lengthy and at times a major cause of division and tension (including between those advocating for human rights protection). This paper will examine why the process has taken so long and why at the time of writing (May 2018), Northern Ireland is still without a Bill of Rights. Before we do this, we begin with a brief overview of the literature on the importance of public participation and deliberation preceding the adoption of any Bill of Rights.3 In Tully’s seminal book Strange Multiplicity. Constitutionalism in an age of diversity, the author emphasises the importance of ‘constitutional dialogue’ in reaching an agreement in constitutional negotiations and regards dialogue as ‘foundational, universal and the fixed background to democracy’.4 The author refers to constitutional negotiations as ‘intercultural dialogues’ rather than ‘monologues in an imperial voice’.5 Albie Sachs talks about the ‘participatory formulation of rights’6and political theorists have also described it as a form of ‘deliberative democracy’.7 This concept, originally expounded by Bessette,8 has subsequently been developed by both political scientists and constitutional lawyers.9 The concept emphasises the role 3 In this section we draw upon and build on previous individual and jointly authored work. Due to space constraints this discussion is by no means exhaustive but provides an analysis of some of the key authors that have contributed to the debates on deliberative and participatory democracy. 4James Tully, Strange, Multiplicity. Constitutionalism in an age of diversity (Cambridge University Press, 1995), 135. 5Ibid at 183. 6 Quoted by Siri Gloppen, South Africa: the Battle over the Constitution (Ashgate, Aldershot 1997), 65. 7 For an excellent discussion on the various contributors on the evolution of deliberative and participatory democracy see Antonia Floridia, From participation to deliberation: A critical genealogy of deliberative democracy (Colchester, ECPR Press 2017). 8 Joseph Bessette, ‘Deliberative Democracy: The Majority Principle in Republican Government’ in How Democratic is the Constitution? (Washington, D.C, AEI Press 1980). 9 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: Polity Press 1996 ); John Rawls, Political Liberalism (Columbia University Press 1993 ); J Cohen, ‘Deliberative Democracy and Deliberate Legitimacy’ in The Good Polity Alan Hamlin and Phillip Petit (eds), (Oxford: Blackwelll 1989); Stephen Tierney, Constitutional Republicanism: The Theory and Practice of Republican Deliberation (Oxford University Press 2012); of participation in the political process and has been associated with other cognate terms such as ‘participatory democracy’.10 Harvey argues that the process of adopting a Bill of Rights is essential as it helps to legitimise outcomes. He notes that a Bill of Rights has the potential to enhance democratic life by promoting the conditions which make a healthy ‘participatory democracy’ possible.11 Such a ‘participatory democracy’ is dependent on what Tierney refers to as the ‘instantiation of principles of deliberative democracy’.12 These principles include participation (informed citizens making informed decisions); public reasoning (enabling citizens to meaningfully participate in the process); inclusion and parity of esteem (a deliberative process needs to facilitate engagement from minorities); and consent in collective decision making (the end product/outcome is legitimate because the process is fair and inclusive irrespective of whether there is agreement and consensus).13They reflect the sub-principles enshrined in the Treaty on European Union: openness, inclusiveness and responsiveness.14 Openness requires transparency allowing the public access to information on the input, process and outcome; inclusiveness is ensuring the widest cross section of the people are included, avoiding the domination of strong and organised groups; and responsiveness requires feedback to the public on the result and how it will be used.15Responsiveness also insists that those responsible for the drafting process be clear as to why a consultation process is being conducted. Is the purpose of the Xenophan Contiades and Alkmene Fotiadou, Participatory Constitutional Change: The People as Amenders of the Constitution ( Routledge 2017). 10C Harvey, ‘The Politics of Rights and Deliberative Democracy: The Process of Drafting a Northern Irish Bill of Rights’ [2001] EHRLR 48. See also Colm O’Cinneide who highlights the significance of a broad and open drafting process, C O’Cinneide, ‘What a Bill of Rights can and cannot achieve’ (2006) (2) NIHRC Review, 5. 11 C Harvey, ‘The Politics of Rights and Deliberative Democracy: The Process of Drafting a Northern Irish Bill of Rights’ [2001] EHRLR 48, 70. 12 S Tierney, ‘The Independence Referendum in Scotland: Constructing a Deliberative Process?’ (29 March 2014), available at https://www.jus.uio.no/english/research/news-and- events/events/conferences/2014/wccl-cmdc/wccl/papers/ws16/w16-tierney.pdf (date accessed: 30 April 2018). 13 Stephen Tierney, Constitutional Republicanism: The Theory and Practice of Republican Deliberation (2012 Oxford University Press), 45. Although Tierney uses this normative framework in the context of constitutional referendums, it can be applied to drafting process of Bills of Rights/Charters. 14 Consolidated version of the Treaty on European Union, open for signature 7 February 1992 [2012] C 326/13 (entered into force 1 November 2013) Art 11. 15 See European Commission, European Governance - A White Paper, 25 July 2001 (Communication) COM (2001) 428 (‘2001 White Paper’) 10; European Commission, Plan-D for Democracy, Dialogue and Debate 13 October 2005, COM (2005) 494 (‘Plan-D’) 9; discussed by J Day, ‘Participatory Democracy in EU and Australia International Investment Law Policy Processes’ (2017) 18 UNDALR 20, 26. process about asking people to contribute to the drafting process with a genuine interest to take the content of submissions into consideration? Or does the fact that submissions were made suffice? If submissions from the public are given weight, it requires effective procedures to manage the material to be taken into consideration. There are also normative problems, such as: do you treat some submissions more seriously than others? Furthermore, as one report notes, if participants are led to believe that their submissions will in fact feed into the final product (be it a Bill of Rights or an all-Ireland Charter), there must be a clear way of demonstrating that this has happened.16 If certain opinions are not accepted, the public needs to know why this is the case. If there is no explanation, there is a risk of undermining the development of a broad consensus in support of the Bill of Rights proposals, something which is essential, especially in a political environment which is sceptical towards Bills of Rights. Paradoxically the public dimension of the drafting process may have the opposite effect–instead of creating ownership and inclusiveness, people may feel alienated and believe that this is ‘not their document’. Vipond also talks about the importance of ‘building from below’17 or what has been referred to as the ‘bottom-up’ approach. This takes its inspiration
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