Scope for a Bill of Rights

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Several hon. Members rose

The Chairman: Order. Before I call the next speaker, I say to the Committee that we are getting very tight for time. Would hon. Members keep their comments as short as they can?

3.38 pm

Mr. Kevin McNamara (Hull, North): Since this is the first opportunity since its publication, I should like to comment briefly on the Government's response to the Northern Ireland Human Rights Commission's review of its powers. It affects much of the way in which the role and work of the commission is considered, and has a bearing on the main subject of the debate.

I regretted the tone and substance of the Government's response. I thought that it was negative, lacking in the generosity of spirit of the Good Friday agreement and unhelpful to the process that we are trying to promote. The Government's refusal to provide sufficient funds for the proper functioning of the human rights commission, charged

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with the critical role of building cross-community consent, has plagued its development and limited its capacity to promote human rights and dignity in Northern Ireland.

It was the Government's refusal to give the commission the powers needed to send for persons and papers and to take cases on its own behalf that undermined its standing among those who sought to deny it teeth in the first place. It was the Government's refusal in the Committee stage of the Northern Ireland Act 1998 to concede vital points of clarification about the powers of the commission that has disrupted its activities.

Happily, the House of Lords, in its decision in the appeal case yesterday, confirmed that. I quote from that judgment. Paragraph 26 said,

    ''I have not found it necessary to refer to the extracts from Hansard in order to resolve the question on this appeal. I do not however see that the Government's position in what is said there is inconsistent with my conclusions. Mr. McNamara MP's amendment to the Clause which was later section 69 of the Act, would have avoided, at any rate in part, the issue in this appeal since it would have said expressly that with leave of the court the Commission could submit an opinion as amicus curiae. One reason he gave was that that 'would enable it more effectively to carry out the advisory and educational functions envisaged in the Agreement' ''.

Mr. Browne: My hon. Friend's position on several such issues is on record, and he has made it clear, but I wish that he would update his position. For example, I wish that he would look carefully at the recent announcements for the financial year 200102 on the way in which the commission is being funded. I can see why, if he is quoted in a House of Lords judgment, he wishes to quote that to the Committee. I might do the same myself. But the fact of the matter is that the Government joined the commission in arguing that case in the House of Lords. We were represented in that case. Our position, simply put, was that the commission had those powers, which was why the Government resisted the amendment. The powers were already in the Act. The Government's position has been fully vindicated by the House of Lords. The House of Lords agreed with us that the commission had those powers.

Mr. McNamara: I am grateful to my hon. Friend, but if the Government had accepted my amendment, we would not, four years on, have had to take that matter to the court at great expense. I understood very well what my right hon. Friend, now the Secretary of State for Wales, said at that time, but the point made in the House of Lords judgment, nevertheless, is that had that amendment been accepted, we would not have been in that situation. I regret, therefore, that that costly legal battle took place. There was also a draining of other commission resources, which were taken away from its main task.

I am aware that the Government have entered into an agreement with the commission. Despite that, the commission is still in the position of always having to go and bid for funds for particular projects. Not having a sure and certain amount of leeway in the funds available to it weakens the commission and its position.

I turn to the main substance of the debate: the scope for a Bill of Rights or the reason why we need a Bill of

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Rights. It is not just because it is a requirement of the Good Friday agreement, important though that is. It is also because it is a vital building block in the process of peace. Earlier this year, we discussed the Justice (NI) Bill, which prefigures, in important respects, the further devolution of reserved powers to the Northern Ireland Assembly. Like my hon. Friend, I would like to see that happen as soon as is safe and possible.

Legislative reform, from the Northern Ireland (Sentences) Act 1998, through the Northern Ireland Act 2000 and the Police (Northern Ireland) Act 2000 to the Justice Bill now in the House of Lords, forms part of a process that will consolidate the peace and create the institutional framework for taking the relationship between peoples on these islands forward in a spirit of optimism and good will. At each stage in the process, the guiding principles have been confidence-building, trust and inclusiveness. That should be the aim and scope of any human rights Bill in Northern Ireland. At the time of all-party negotiations leading to the Good Friday agreement, it was not possible to agree on the exact shape of a new police service, which was why the Patten Commission was established to advise on how to create a police service that aspires to serve all sections of the community equally.

It was not possible to determine all the changes needed to create a criminal justice system, whose impartiality and fairness all sections of the community could respect. The agreement provided a route map that the political parties could use to take the process forward. I think it is now possible to envisage a Department of Justice as part of the governance of Northern Ireland and the further devolution of powers; I hope that will happen soon. However, the cross-community confidence required to take that step requires the building blocks of consent to be put in place.

A Bill of Rights that offers the entrenchment of rights protection, over and above the minimum standards of the European convention, is essential. Critically the Bill must embody and strengthen the principle of parity of esteem between both the communities.

Lady Hermon: Would the hon. Gentleman elaborate on the point that he has just made? Does he envisage a hierarchy of rights: the Bill of Rights for Northern Ireland, then the European convention of human rights for the rest of the United Kingdom? How does he expect the Bill of Rights to be entrenched in that hierarchy?

Mr. McNamara: That is what my hon. Friend the Minister said the argument would be about. If we decide that there are particular and special rights for Northern Ireland based on the Good Friday agreement, how do we deal with the question of parity of esteem between the communities, and how do we embody individual rights within community rights? How we balance those factors is part of what this important debate is about. That is what has been set off by the publication of the commission's proposals, and we have to get to the root of it. We have to ensure that nothing undermines the basic principles of the Good Friday agreement: the principle of consent and

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the principle of esteem between the communities. We need to argue about that, think about it and work at it.

It was sufficient that all the parties, the hon. Lady's party and mine, as represented by my right hon. Friend the Prime Minister, felt that there was a need to explore, through a human rights commission, the establishment of a Bill of human rights for Northern Ireland. We also have to put that into the context of whatever Bill of human rights comes from the Republic, and we have to bear in mind what will happen if the fundamental charter of human rights of the European Community becomes justiciable. That is an interesting question because it contains within it social rights, which raises the whole philosophical question of whether it is merely sufficient to say that a person is entitled to a fair trial, or whether he should be entitled to a fair education. It is important that we consider the way that the argument is developing. I will come on to who should resolve that in a moment.

Mr. Hunter: Does the hon. Gentleman agree that the relevant section of the Belfast agreement is a classic instance of constructive ambiguity? The initial requirement is only that the commission should consult and advise on the scope for defining future legislation. The second sentence goes on to assume a positive answer to that initial statement.

Mr. McNamara: I accept that one could read that conclusion, but as the Deputy First Minister said, I would rather be dealing with the ambiguities of the Good Friday agreement than dealing with the situation that existed before it. That is the proper way of looking at it.

The Bill of Rights must seek to consolidate and embody in its principles all that is contained within the agreement. Those have been negotiated by the political parties and endorsed by the people of Ireland, north and south. They have served as a foundation stone for every positive political development since, whether the decommissioning of terrorist weapons or the dismantling of interrogation centres and watch towers. The Good Friday agreement has been working and it is important that its principles are unassailable in law in Northern Ireland.

In the jargon of academia, the nice word consociation is being used and I have seen ''consociationalism'' written down. I wish that I could pronounce it, but I shall try to explain what it means. It is the ability with which matters have been accepted in Northern Ireland and the way in which the building blocks have been put into the peace process. The first is the principle of cross-community power-sharing with the dual premiership of the First and Deputy First Ministers acting jointly and the inclusive Executive determined by the d'Hondt method. The second is the principle of proportionality applied across the public and private sectors with the election of the Assembly by proportional representation, the award of Committee places by the d'Hondt method and the vigorous and mainstreamed promotion of equality. The third is the principle of community self-government and equality in culture, tradition and ethos marked out by the

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notion of parity of esteem that is central to the Good Friday agreement. I keep returning to parity of esteem because that is what makes the Good Friday agreement different. We are discussing community rights, not just individual rights.

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Prepared 27 June 2002