Ethno‐National Narratives of Human Rights: The Northern Ireland Policing Board
| Author | Richard Martin |
| DOI | http://doi.org/10.1111/1468-2230.12473 |
| Published date | 01 January 2020 |
| Date | 01 January 2020 |
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Modern Law Review
DOI: 10.1111/1468-2230.12473
Ethno-National Narratives of Human Rights:
The Northern Ireland Policing Board
Richard Martin∗
Policing in Northern Ireland has undergone one of the world’s most extensive human rights
reform programmes. The challenge has been whether the human rights paradigm can serve as
a mutual basis for the region’s sparring ethno-national communities to deliberate over long-
contested issues of policing, accountability and justice. This article focuses on the Northern
Ireland Policing Board as an arena to examine the contemporary political attitudes and agendas
that animate the Board’s statutory duty to monitor policing on the basis of human rights.
Marshalling qualitative data and drawing on legal anthropology, this article offers an account
of the ‘social life’ of human rights and policing in the context of Northern Ireland’s imperfect
peace. It argues that, irrespective of legal standards, human rights oversight harbours deep
sentiments and concerns, at the heart of which are communities’ own historical engagements
with rights, competing legacies of the conflict and divergent understandings of contemporary
policing.
INTRODUCTION
The Good Friday Agreement (GFA) celebrated its 21st anniversary in April
2019.1The political signatories to this historic peace settlement committed
to ‘the protection and vindication of the human rights of all’ in Northern
Ireland (NI) as part of a ‘fresh start’ that would ‘best honour’ those who had
‘died or been injured, and their families’.2A whole chapter was dedicated to
the civil and political rights most at stake in the conflict involving loyalist and
republican paramilitaries and the security forces.3The GFA inspired bold efforts
to mainstream human rights in NI’s renewed public institutions, especially the
criminal justice system.4In particular, the Police Service of Northern Ireland
∗Department of Law, London School of Economics and Political Science. I am grateful to Sandy
Fredman, Conor Gearty, Alyson Kilpatrick, Ben Bradford, Meghan Campbell, and the anonymous
reviewers, as well as one of my research participants, for their most helpful comments on earlier
drafts of this article. My thanks also to Kieran McEvoy, Ian Loader, JuliaViebach, John Topping and
members of the Oxford Human Rights Research Group for their advice and feedback. Finally, I
wish to thank those who participated in the study on which this article is based. All errors are mine.
1 The GFA was signed on 10 April 1998 by the UK and Irish governments and all political
parties in NI except the Democratic Unionist Party, following paramilitary ceasefires, extensive
negotiations and a cross-border referendum.
2The Agreement: Agreement Reached in the Multi-Party Negotiations (1998) Declaration of Support,
para 2.
3 C. Harvey, ‘Contextualised Equality and the Politics of Legal Mobilisation: Affirmative Action
in Northern Ireland’ (2012) 21 Socio-Legal Studies 23.
4 See C. Harvey, ‘Governing after the Rights Revolution’ (2000) 27 JLS 61; C. Caughey and D.
Russell, ‘The Devolution of Human Rights and the Northern Ireland Assembly’ in M. Hunt,
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2020)83(1) MLR 91–127
The Northern Ireland Policing Board
(PSNI), replacing the Royal Ulster Constabulary (RUC), underwent one of the
world’s most extensive reform programmes to fundamentally re-orient policing
towards a ‘human rights approach’.5Since 2003, the PSNI has implemented
over 200 human rights recommendations.6‘Fluency in the language of human
rights’, as Colin Harvey has observed, is now ‘pragmatically and strategically
wise for anyone wishing to progress within the institutional contexts of policing
and justice’.7But the real question was always going to be whether this rights
paradigm could really serve as a mutual basis for NI’s sparring ethno-national
communities to make sense of, and deliberate over, long-contested issues of
policing, accountability and justice in this post-conflict society.8
Two decades on fromthe GFA, ethno-national narratives continue to temper
debates over the scope and significance of human rights.9This was powerfully
expressed in deliberations over a future Bill of Rights for NI. The Bill of Rights
Forum, which involved political parties and representatives of civil society, ‘re-
vealed persistent disagreement . . . In nearly every area of rights protection, the
report [arising from the Forum] set out divergent and competing approaches’.10
Nationalists wanted an expansive bill; unionists a restrictive one; nationalists
emphasised substantive equality, unionists preferred non-discrimination; na-
tionalists insisted on the inclusion of socio-economic rights, unionists were
firmly opposed.11 Infused with ethno-national divisions, it has been argued
that human rights contestations have become a form of what Curtis refers to as
‘war by other means’: a vernacular for continuing, rather than resolving, debates
H. Hooper and P. Yowell (eds), Parliaments and Human Rights: Redressing the Democratic Deficit
(London: Hart Publishing, 2015).
5 The Independent Commission on Policing for Northern Ireland, A New Beginning: Policing in
Northern Ireland – The Report of the Independent Commission on Policing in Northern Ireland (Belfast:
Staionery Office, 1999). See, especially, D. Bayley, ‘Post-Conflict Police Reform: Is Northern
Ireland a Model?’ (2008) 2 Policing: A Journal of Policy and Practice 237; see also D. Rea and
R. Masefield, Policing in Northern Ireland: Delivering the New Beginning? (Liverpool: Liverpool
University Press, 2014) 298-299.
6 Police Service of Northern Ireland, Human Rights Programme of Action 2014/2015 June 2015;
Northern Ireland Policing Board, Human Rights Annual Report 2015 (Belfast: Northern Ireland
Policing Board, 2015) 3.
7 C. Harvey, ‘Bringing Humanity Home: A Transformational Human Rights Culture for North-
ern Ireland?’ in A. McAlinden and C. Dwyer (eds), Criminal Justice in Transition: The Northern
Ireland Context (Oxford: Hart Publishing, 2015) 61.
8Harvey,ibid, 87; M. Beir ne, ‘Progress or Placebo? The Patten Report and the Future of Policing
in Northern Ireland’ (2001) 11 Policing and Society 310.
9 See J. Tonge and R. Gomez, ‘Shared Identity and the End of Conflict? HowFar Has a Common
Sense of “Northern Irishness” Replaced Br itish or Irish Allegiances since the 1998 Good Friday
Agreement?’ (2015) 30 Irish Political Studies 276, 294: ‘[B]oth communities do not look across
to each other to redefine nationality, which is instead shaped by intra-communal debates over
how best to express Britishness or Irishness.’
10 C. Harvey and A. Schwartz, ‘Designing a Bill of Rights for Northern Ireland’ (2009) 60 NILQ
189.
11 This is a simplification for illustrative purposes. Variations within political parties existed, but
ultimately only three of the 40 rights proposed by the Forum enjoyed cross-party agreement.
In its final proposal, the NI Human Rights Commission adopted an inclusive range of rights
(2008). Ultimately, this did not find favour with the Northern Ireland Office. See A. Smith,
M. McWilliams and P. Yarnell, Political Capacity Building: Advancing a Bill of Rights for Northern
Ireland (Ulster: University of Ulster: Transitional JusticeInstitute, 2014) and C. Harvey, Northern
Ireland and a Bill of Rights for the United Kingdom (London: British Academy, 2016).
92 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2020) 83(1) MLR 91–127
Richard Martin
over national belonging, cultural expression and state repression.12 This thesis
of ‘war by other means’ poses a provocative challenge to a popular conception
of human rights as being bounded by a logic of universality and an internal
coherency, notwithstanding their open-textured norms.13
It is this ‘war by other means’ thesis that I want to examine more fully and
critically for the first time in the context of the oft discussed, but rarely analysed,
human rights oversight of policing conducted by the Northern Ireland Policing
Board (the Board). The Board is a meaningful case study to elicit and examine
contemporary human rights discourse because it has a statutor y duty to monitor
the compliance of the PSNI with the Human Rights Act 1998 (HRA). This
duty falls upon the shoulders of the Board’s members, who comprise both
‘political’ and ‘independent’ appointees, drawn from the political parties and
a civil society still divided over human rights and the legacy of the conflict.
This duty has given rise to a loud and lively human rights discourse, which
makes the Board an ideal site for detecting the political narratives that animate
human rights and policing. Drawing on legal anthropological scholarship and
original qualitative data, I offer rare insights into the political narratives that
animate the Board’s human rights monitoring. I argue that, notwithstanding the
Board’s duty to monitor policing using standards of the European Convention
on Human Rights (ECHR), for political members, human rights are a vessel
harbouring deep sentiments and concerns, at the heart of which are competing
histories of the conflict, legacies of policing and understandings of the imperfect
peace. In doing so, I extend and revise the ‘war by other means’ thesis in three
respects.
First, conceptually, I suggest that we can meaningfully explore, and better
grasp, discursive engagement with, and mobilisation of, human rights using a
three-fold analytical framework drawn from the legal anthropological scholar-
ship. This analysis seeks to challenge the idea of ‘legal closure’ by laying bare
the ‘social life’ of human rights – the attitudes, aims and agendas of those
who deploy (or dismiss) human rights claims in arenas of contestation. Second,
methodologically, I discern and appraise the divergent concerns, memories,
sentiment and strategies of unionist and nationalist political members in respect
of human rights, based on a content analysis of thirty-nine public sessions of the
Board I watched and in-depth interviews I conducted with Board members.
Third, empirically, I argue, consistently with the ‘war by other means’ the-
sis, that political members’ narratives of, and engagement with, human rights
oversight harbour deep sentiments and concerns, at the heart of which are
competing histories of the rights, legacies of policing and under standings of
the imperfect peace. Just how far these attitudes impact upon their actual en-
gagement with the monitoring duty is harder to detect, but some insights are
12 J. Curtis, Human Rights as War by Others Means (Philadelphia, PA: University of Pennsylvania
Press, 2014); M. Lamb, ‘Ethno-nationalist conflict, participation and human rights-based soli-
darity in Northern Ireland’ (2013) 17 The International Jour nal of Human Rights 723; D. Cowell
and K. Cowell, ‘Human rights as Conflict Management: The Unionist use of Human Rights
Language in Northern Ireland’ (1999) 5 Nationalism and Ethnic Politics 1.
13 See S. Fredman, ‘From Dialogue to Deliberation: Human Rights Adjudication and Prisoners’
Rights to Vote’ (2013) PL 292 and D. Feldman, ‘Democracy, Law, and Human Rights: Politics
as Challenge and Opportunity’ in Hunt, Hooper and Yowell, n 4 above.
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2020) 83(1) MLR 91–127 93
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