Lost on the Way Home? The Right to Life in Northern Ireland

AuthorJohanna Keenan,Christine Bell
Publication Date01 Mar 2005
DOIhttp://doi.org/10.1111/j.1467-6478.2005.315_1.x
JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 1, MARCH 2005
ISSN: 0263-323X, pp. 68±89
Lost on the Way Home?
The Right to Life in Northern Ireland
Christine Bell* and Johanna Keenan*
This article starts from the premise that, through the Belfast
Agreement, the Human Rights Act 1998 (HRA) was invested with a
`transitional justice' function in Northern Ireland, unlike in the rest
of the United Kingdom. The article evaluates how far the HRA has met
this challenge by examining a case study of the right to life. The
European Court's development of a procedural aspect to the right to
life in the form of a right to an effective investigation, has implicated
both institutional reform for the future, and also a need to revisit past
state killings with their `transitional justice' implications. There have
been some positive developments, but, despite this, domestic
institutions and courts have largely failed to deliver on Article 2's
procedural aspect. The article concludes by questioning whether the
very design of the HRA has limited the possibilities for a
`transformational constitutionalism' capable of incorporating Article
2's procedural right.
This article examines the impact of the Human Rights Act 1998 (HRA) in
Northern Ireland, through a case study on the right to life. Any analysis of
the HRA in Northern Ireland, must acknowledge a political context quite
distinct from the rest of the United Kingdom. Three main reasons for the
HRA were given by the Labour government in 1997: that accessing rights
domestically would be speedier and cheaper; that it would enable British
judges to make a distinct contribution to human rights jurisprudence; and
68
ßCardiff University Law School 2005, Blackwell Publishing Ltd, 9600 Garsington Road,
Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Transitional Justice Institute, University of Ulster, Magee Campus,
Londonderry/Derry BT48 7JL, Northern Ireland
This article was in part based on interviews with Paul Mageean, Paul O'Connor, Hugh
Orde, Karen Quinlivan, Eric Strain, Jane Winter, and Ritchie McRitchie, all of whom we
would like to thank for their time and expertise. We would also like to thank Maggie
Beirne, Kathleen Cavanaugh, Murray Hunt, Paul Mageean, Fionnuala NõÂ AolaÂin, Maggie
O'Conor, Ursula O'Hare, and Jane Winter, for commenting on earlier drafts. Mistakes
which remain are our own.
that it would improve rights protection.
1
Four years in, these justifications
can be turned into questions through which to evaluate the HRA. However,
consideration of the HRA in the Northern Irish context can add a fourth
question: whether the HRA has helped Northern Ireland move from conflict
to peace.
This ambitious aim is implicit in the Belfast Agreement, which coincided
with enactment of the HRA: the two became inextricably linked. The Labour
government's plans for giving domestic effect to the European Convention on
Human Rights (ECHR) stood independently of the peace process. However,
when the Belfast Agreement came to be signed, `incorporation' was presented
as a central part of what has become known as the human rights and equality
agenda. It was one of a number of human rights measures that together went
far beyond the constitutional reform/devolution package as conceived of
elsewhere in the United Kingdom. Unlike the rest of the United Kingdom, this
package included a Human Rights Commission and a single Equality
Commission, and contemplated further development into a possible Bill of
Rights for Northern Ireland, and an all-Ireland Charter of Rights.
2
These measures emerged during negotiations as vital to underwriting the
`big constitutional fix' of devolution. Together with power-sharing and
cross-border bodies, they aimed to take the sting from the Constitutional
question of British versus Irish sovereignty ± resolution of this question
having been left open ± by ensuring that in the interim, society would be fair
for everyone. The inclusion of a human rights and equality agenda also
responded to the analysis that human rights abuses by the state had
contributed to the onset, escalation, and sustenance of conflict and required
to be addressed if a lasting peace was to be achieved. This agenda reflected a
coincidence of principled human rights arguments with the negotiated search
for avenues for on-going conflict resolution that would remove vestigial
arguments for paramilitary violence.
Human rights measures, while primarily addressing the vertical relation-
ship between citizen and state, also held some potential for mediating the
horizontal relationship between Protestant Unionist and Catholic Nationalist
communities and cultures, by providing new fora for dealing with public
order disputes, equality, and language rights, through which `parity of
esteem' could grow. Thus, the HRA, already on new Labour's devolution
table, took on a new dimension and was invested with a deeper political role
with respect to Northern Ireland. This different context has given rise to
arguments that the new constitutional order in Northern Ireland does not `fit'
within notions of tra ditional Britis h constitutional ism, even in their
69
1 Home Office, Rights Brought Home: The Human Rights Bill (1997; Cm. 3782).
2Agreement reached in the multi-party negotiations, 10 April 1998, [hereinafter Belfast
Agreement], `Rights, Safeguards and Equality of Opportunity'. See, further, P.
Mageean and M. O'Brien, `From the Margins to the Mainstream: Human Rights and
the Good Friday Agreement' (1999) 22 Fordham International Law J. 1299.
ßCardiff University Law School 2005

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