Governing after the Rights Revolution
| DOI | http://doi.org/10.1111/1467-6478.00147 |
| Published date | 01 March 2000 |
| Date | 01 March 2000 |
In this paper I explore the relevance of neo-republican thinking for cur-
rent debates in constitutional law. In particular, I am interested in how
deliberative forms of law and democracy might be grounded in real-
world institutional contexts. My thesis is that the neo-republican model,
underpinned as it is by the values of equality, participation, and
accountability, has both explanatory and critical potential when explor-
ing the voices, spaces, and processes of constitutionalism. I test this
argument with reference to constitutional change in Northern Ireland. It
is evident that equality is the core value in the settlement reached but it
is in the combination of values that the potential and tensions will arise
in the future. The provisions of the Northern Ireland Act 1998 on equal-
ity are useful examples of how law might be shaped to include the voic-
es of affected groups in the process of enforcing change in public
administration. Law’s role in this process is, however, more problemat-
ic than is often assumed. In this, and in other aspects of the settlement,
there are lessons for others who are presently reflecting on the constitu-
tional future in the new devolutionary contexts.
INTRODUCTION
The United Kingdom, as part of a more comprehensive process of reform
(and rather late in the day), is following other liberal democracies into the
formal enactment of human rights guarantees.1This is the result of two
© Blackwell Publishers Ltd 2000, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* School of Law,The Queen’s University, Belfast BT7 1NN, Northern Ireland
This is based on a paper presented at the University of Michigan Law School, 5 October 1999.
I would like to thank Professor John Morison for commenting on a draft of this paper and
Professor Christopher McCrudden for encouraging me to look more closely at equality.
Errors are mine alone.
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JOURNAL OF LAW AND SOCIETY
VOLUME 27, NUMBER 1, MARCH 2000
ISSN: 0263–323X, pp. 61–97
Governing after the Rights Revolution
COLIN HARVEY*
1See J. Morison, ‘The Case Against Constitutional Reform?’ (1998) 25 J. of Law and Society
510, at 512: ‘The reforms on offer at best would seem to bring the United Kingdom into
line with other constitutions that were founded in the eighteenth and nineteenth centuries
and are now beginning to feel their age.’
developments. First, a political struggle by advocates of human rights to
mainstream legal protection in the constitution and, second, the election of
a government responsive to these demands.2Law’s empire is presently being
re-clothed and lawyers will have a new language in which to construct their
arguments. Whether this will have a radical impact on the British constitu-
tion is yet to be seen.3There is much to learn from the success of this polit-
ical campaign to give formal recognition to human rights. For it is always
instructive to observe struggles for reform and how and why they succeed.
While the strategic skills of the human rights movement is an interesting
theme it will not be pursued in any depth. The concern here is to probe
where we might venture after the ‘rights revolution’.4The United Kingdom
is currently experiencing a period of constitutional transition to what has
been described as a form of ‘quasi-federalism’.5This is not to overstate the
significance of the constitutional reform project or to suggest that there is
dearth of literature on new forms of governance.6That is patently not so. It
is to give recognition to a problem that has been apparent for some time.
The problem is reflected in the expressed desire of public lawyers for a per-
spective that possesses both explanatory and critical potential. There is
a consensus of sorts that the old stories no longer possess the explanatory
power they once did. New stories are being forwarded, some of which are
explicitly meant to persuade institutional actors to change direction.7What
is evident is that a partial conceptual framework will distort any practical
analysis of change. If one is interested in addressing partiality then this
requires an openness to new forms of constitutionalism that is occasionally
lacking in the literature.8A critical model must be explicitly defended rather
than assumed to exist free of normative commitments.
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© Blackwell Publishers Ltd 2000
2See D. Feldman, ‘The Human Rights Act 1998 and Constitutional Principles’ (1999) 19
Legal Studies 165; J. Young, ‘The Politics of the Human Rights Act’ (1999) 26 J. of Law
and Society 27; I. Leigh, ‘Horizontal Rights, the Human Rights Act and Privacy: Lessons
from the Commonwealth’ (1999) 48 International and Comparative Law Q. 57; K.D. Ewing,
‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 Modern Law Rev. 79; M.
Hunt, ‘The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession’
(1999) 26 J. of Law and Society 86; M. Hunt, ‘The “Horizontal Effect” of the Human
Rights Act’ [1998] Public Law 423
3See R. Hazell, ‘Reinventing the Constitution: Can the State Survive?’ [1999] Public Law 84.
4I borrow this title from C.R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory
State (1990) and recognize that he uses the term ‘rights revolution’ quite differently.
5R. Hazell, ‘The New Constitutional Settlement’ in Constitutional Futures: A History of the
Next Ten Years, ed. R. Hazell (1999) 230.
6See, generally, R.A.W Rhodes, Understanding Governance: Policy Networks, Governance,
Reflexivity and Accountability (1997). The absence of reference to social and economic rights
in the constitutional reform debate is telling; see K.D. Ewing, ‘Social Rights and
Constitutional Law’ [1999] Public Law 104.
7For analysis of one in particular, see M. Loughlin, ‘Rights Discourse and Public Law
Thought in the United Kingdom’ in Rights and Democracy: Essays in United Kingdom-
Canadian Constitutionalism, ed. G.W. Anderson (1999) 193.
8 See, for example, E. Barendt, An Introduction to Constitutional Law (1998).
One of the continuing problems with new forms of constitutionalism is the
failure to demonstrate how they might shape or provide tools to critique,
political and legal practice. The focus of this paper is on Northern Ireland
and the argument is that this provides a concrete example of how institu-
tional structures can be created to facilitate deliberation and participation. In
particular I use a case-study of constitutional change to test a conception of
democratic law grounded in the value of equality. The argument advances in
two basic stages. First, after surveying relevant literature I defend a concep-
tion of democratic law. This excursus is necessary in order to flesh out a con-
ception of legality based on the value of equality. Any such argument in
support of constitutionalism must confront some powerful criticism. The
early stages of the paper are an attempt to survey the state of play but, in
particular, I want to stress the importance of an argument I have advanced
more fully elsewhere.9That is the importance of bringing neo-republican
thinking into the debate on the future of United Kingdom constitutional law.
Second, I explore constitutional reform in Northern Ireland in order to test
the theory against practical developments on the ground. In particular,
I focus on developments since the Belfast Agreement 1998 (the Agreement).10
My thesis is that the constitutional settlement in Northern Ireland reflects
a primary commitment to the value of equality. This value is fundamental to
a defensible concept of neo-republicanism. This is not to argue that the set-
tlement is unproblematic. There are aspects of the ‘two communities’ model
which are questionable. Equality norms, of various types, structure the set-
tlement reached. I argue that with enhanced democratic accountability and
human rights guarantees the Agreement is based on a potentially instructive
model of constitutionalism.
RENEGOTIATING CONSTITUTIONALISM
1. The return of deliberative democracy
The proliferation of perspectives is the most notable trend in recent think-
ing about constitutionalism and in public law generally.11 Critical scholars
have subjected traditional forms of constitutionalism to sustained criticism
from a variety of perspectives. These long overdue critiques has focused on
subjugated knowledges and the voices that are repressed within traditional
narratives. In this new context public lawyers in particular crave a para-
digm to orient practice. The new critical voices entering the field have
inspired a renewed focus on the values which underpin the subject. It is
now at least accepted that the partial nature of the conceptual framework
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© Blackwell Publishers Ltd 2000
9 C.J. Harvey, ‘The Politics of Legality’ (1999) 50 Northern Ireland Legal Q. 528.
10 The Belfast Agreement (1998; Cm. 3883).
11 For an excellent example of the diversity even within perspectives see S. Millns and
N. Whitty (eds.), Feminist Perspectives on Public Law (1999).
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