OPINION/Fintan O'Toole: Eighty years ago this month, the partitioning of Ireland was copperfastened by the formal inauguration of the Irish Free State. With the signing and ratification of the Belfast Agreement in 1998, most of us believed that the meaning of partition was being radically reconstructed.
We were entering, it seemed, a new phase in Irish history in which it would be possible, without making claims or threats, to imagine the island as a shared political and civic space. Yet, in a bizarre twist, the agreement itself is being used to re-partition the island.
It has been clear for some time that the Government sees the agreement essentially as a matter for the North. It imposes all sorts of obligations on the authorities north of the Border: the release of paramilitary prisoners, the development of open and accountable policing, the strict adherence to international human rights standards. What is vital for the North, however, is irrelevant to the South.
Many of the unpalatable things we have asked democrats in Northern Ireland to swallow - the release of vicious killers, the entry into government of Sinn Féin while the IRA remains active - are regarded as too unpalatable to be contemplated in the South. The radical and progressive changes in policing in the North - a democratic and open Policing Board, a powerful and independent Ombudsman's office - are far too radical for the Republic.
Another striking example is the European Convention on Human Rights. The Belfast Agreement seems to suggest that the convention would form the basis for a common framework of civic and personal freedoms for the whole island. The British government committed itself to the "complete incorporation into Northern Ireland law of the ECHR, with direct access to the courts and remedies for breach of the Convention . . . "
The Irish Government's commitment is a bit more vague. It promised to "further examine" the incorporation of the convention into law in the context of new measures which would "ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland". The strength of this latter commitment seemed to make up for the vagueness of the former one. It seemed clear that the convention was going to be brought into the Republic's law with at least as much force as would apply in the North.
The British pretty much kept their side of the deal. The Human Rights Act in the UK is not perfect, but it does make it unlawful for any public authority to act in breach of the convention and it means that a UK citizen can seek redress for any such breach in the local courts. Most importantly, those courts themselves are subject to the convention.
So what of our own anti-partitionist State? It could not, of course, ignore its obligations under the agreement, but it has done the next best things - delay as long as possible, then adopt the most minimal and grudging course of action.
The last Government delayed the legislation to incorporate the human rights convention into law so long that it had not been passed before the May election and therefore lapsed. This Government has made it clear that it intends to reintroduce the same Bill.
It is such a weak piece of law that if it is eventually passed, it will be virtually meaningless.
THE basic point of incorporating the European Convention on Human Rights is that people who have been denied their fundamental rights wouldn't have to go to Strasbourg to get redress. The Irish courts would apply the convention here, making justice much more accessible. But this simply won't be achieved in any meaningful way under the Government's proposals.
If someone goes to the High Court and gets the judge to agree that a piece of Irish law has deprived him or her of a basic right, what happens then is nothing. The court issues a declaration that the law is in breach of the convention. The legislation remains in force. The person who took the case gets no compensation or redress, though the Government may - or may not - decide to make an ex gratia payment.
As the official Irish Human Rights Commission - itself a product of the Belfast Agreement - has put it: "It is unacceptable to place the courts in a position where they can identify a breach of human rights and not be in a position to give an effective remedy." Another huge problem with the Bill is its extremely limited definition of an organ of the State which is obliged to perform its functions in accordance with the convention. The Bill explicitly excludes both the courts and a whole range of semi-public institutions such as Church-owned but State-funded hospitals and schools.
The exclusion of the courts is ridiculous because the convention is in part concerned with aspects of what judges do - unreasonable delays in the administration of justice or the failure to give adequate reasons for decisions. The exclusion of hospitals and schools removes a huge range of State services from the scope of the legislation.
We are getting a legislative fig-leaf that pretends to incorporate the convention into law but actually gives Irish citizens no real protection that they don't already have. If those sectarian securocrats north of the Border were playing these cynical games, Bertie Ahern and Brian Cowen would be thumping the table. But then, in the new more subtle version of partition, the North is another country.