Written evidence from Professor Brice
Dickson[41]
INTRODUCTION
1. I come to this debate as someone who
has long campaigned for a Bill of Rights for Northern Ireland.
Initially I did so as a member of a Belfast-based NGO, the Committee
on the Administration of Justice, which I helped to form in 1981.
With several others in that organisation I worked on devising
a draft Bill of Rights which we published in 1993. Then, in 1999,
I was appointed as the first Chief Commissioner of the Northern
Ireland Human Rights Commission, a statutory body established
as a result of the Belfast (Good Friday) Agreement of 1998. In
that capacity I oversaw the Commission's work on a Bill of Rights
from its launch in 2000 to the handover to new Commissioners
in 2005. It was under my watch that the Commission produced its
first consultation document on a Bill of Rights in September 2001 (Making
a Bill of Rights for Northern Ireland) as well as its second
consultation document in April 2004 (Progressing a Bill
of Rights for Northern Ireland). Both of those documents contained
draft Bills of Rights.
2. Until I left the Commission I was firmly
convinced that a broad-based Bill of Rights would be a great thing
for Northern Ireland. It would symbolise the beginning of a new
era for that part of the world, an era in which the very highest
standards on human rights would be adhered to by every public
authority and where everyone would accept that the whole of society
benefits if the human rights of everyone are fully and impartially
protected. Today, more than four years after leaving the Commission,
I am not so sanguine.
3. This is partly because the Forum for
a Bill of Rights, which sat from December 2006 until March
2008, produced such a non-consensual report, and the Human Rights
Commission's advice to the Secretary of State, delivered in December
2008, met with such fierce opposition from unionist politicians.
But a further reason for my change of position is that I have
come to believe that the significance of having a broad-based
Bill of Rights in Northern Ireland is just not as great as I once
imagined it to be. I emphasise that I still want human rights
to be very well protected in Northern Ireland and that I think
a Bill of Rights should be put in place to help secure that protection;
it's just that I do not think the Bill of Rights needs to be of
the 'all singing, all dancing' variety that has been argued for
by the Commission up to now.
THE PROCESS
TO DATE
AND THE
CUL-DE-SAC
IT HAS
LED TO
4. The Belfast (Good Friday) Agreement of
1998 envisaged that the Northern Ireland Human Rights Commission
would be given the task of advising the Secretary of State for
Northern Ireland on the scope for defining rights supplementary
to those in the European Convention on Human Rights and reflecting
the particular circumstances of Northern Ireland. These rights,
when taken together with Convention rights, would constitute a
Bill of Rights for Northern Ireland. Ever since the Human Rights
Commission began its consultation process on what should be in
its advice there has been controversy over the phrase 'the scope
for defining rights'. The Commission itself, and most human rights
NGOs, have taken the phrase to be, in effect, an invitation to
identify rights not already protected by the European Convention
which it would be good for the people of Northern Ireland to have.
Others, especially unionist politicians and some religious organisations,
have read the phrase as a requirement that the Commission must
explore what common ground exists in Northern Ireland on the additional
rights that need to be protected there.
5. The result of these differing interpretations
of the nature of the enterprise being demanded of the Commission
has been a significant political stand-off. In my days at the
Commission the unionist politicians hardly engaged with us at
all. I had the impression that very few in the Ulster Unionist
Party understood enough about the issues involved to be able to
present a coherent position to the Commission. The Democratic
Unionist Party may have been more knowledgeable about human rights
but for its own political reasons it did not want to accord the
issue much attention—it had bigger fish to fry and it believed,
probably rightly, that the Bill of Rights was never going to be
an important enough issue for nationalist political parties to
justify the DUP suggesting a trade-off between progress on the
Bill of Rights and progress on some part of its own political
agenda.
6. The Forum on a Bill of Rights was set
up to fill the gap which some said had arisen in the Human Rights
Commission's work to date on preparing its advice for the Secretary
of State. It was meant to give the political parties a chance
to sit together in a room, along with representatives of civil
society, to thrash out an agreed way forward. There was speculation
that the resulting report would be such a sacrosanct document
that when the Human Rights Commission received it it might not
want to change a jot of what was recommended for fear of upsetting
the delicate compromise that had been struck after long negotiations.
Alas, the Forum did not work out like that. Despite sterling efforts
by its independent chair, Mr Chris Sidoti, those attending the
Forum did not work in a spirit of give and take. The Forum's report
is, as a result, a most disappointing document. The only positive
thing that can be said of it is that it makes explicit, if crudely
at times, the vast differences of opinion that exist on this topic
between the political parties in Northern Ireland (and within
civil society too).
7. The Human Rights Commission's advice,
which was produced eight months after the Forum's report, is certainly
a much more coherent document, but it focuses on what the Commission
thinks would be ideal for a Bill of Rights rather than on what
it knows to be realistically achievable in view of the differing
views of the local politicians. In that respect it is similar
to the two previous Commission documents on a Bill of Rights.
The 2008 document was based on the Commissioners' agreed
methodology for interpreting its mandate, just as the 2001 and
2004 documents were based on the then Commissioners' agreed
list of guiding principles. On the one hand I am flattered that
the present Commissioners are largely following the lead of their
predecessors. On the other hand I feel that they should have tried
to move the process on by taking into account some of the objections
to the 2001 and 2004 drafts and some of the Realpolitik
of today. The Bill of Rights process has reached something of
a cul-de-sac. The time has therefore come for some fresh thinking
in the field.
THREE REALITIES
AND THEIR
CONSEQUENCES
8. In particular, I think the time has come
for the Bill of Rights process to reflect three realities, which
are briefly listed here and then expanded upon in paragraphs 9 to
13:
(a) that, whatever the position in the past,
the current human rights situation in Northern Ireland is no longer
markedly worse than in the rest of the United Kingdom or in the
Republic of Ireland; since the coming into force of the Human
Rights Act in 2000 there is no longer the human rights deficit
in Northern Ireland that in some people's eyes existed at the
time of the Belfast (Good Friday) Agreement;
(b) that, even in a nation where the doctrine
of Parliamentary sovereignty is the dominant constitutional principle,
human rights can be adequately protected without there being a
Bill of Rights in place that goes beyond the European Convention—"ordinary"
legislation can do the job just as well; ordinary legislation,
particularly in the fields of social security, homelessness, health
care and employment can—and does already—go a very
long way towards ensuring that people have basic entitlements
that can be enforced in the courts, and while it would be ideal
to capture those rights in general terms in a Bill of Rights,
there is no guarantee that doing so would make them more real
on the ground;
(c) that Bills of Rights are easier to reach
agreement on if they are restricted to general principles of human
rights issues and do not descend into fine detail or trespass
into issues concerning how the country in question is governed;
one would expect the details to be dealt with in implementing
legislation and the governance issues to be dealt with somewhere
else in the country's constitution arrangements, but not in a
"rights" document; probably the most comprehensive Bill
of Rights in the world at present—South Africa's—makes
a rigid distinction between "rights" issues and "governance"
issues; the recent modern constitutions agreed in Afghanistan
and Iraq do likewise.
9. The first of these three realities means
that there is no pressing need for a Bill of Rights to supplement
the European Convention in far-reaching ways in Northern Ireland.
I well remember some critics of the Human Rights Commission's
2001 document saying that the draft Bill of Rights it contained
was disproportionately long when compared with the European Convention.
They had a point. Articles 1 to 18 of the European Convention,
together with Articles 1 to 3 of Protocol 1 to
that Convention, have a total length of 2,155 words. The
Human Rights Commission's three documents (counting only those
sections which set out proposals for rights, and making allowances
for alternative clauses) have an estimated length of 8,300 words
(2001), 4,700 words (2004) and 5,800 words (2008). South
Africa's Bill of Rights (agreed in 1996) has 4,579 words,
Canada's Charter (agreed in 1982) has 2,542, Afghanistan's (agreed
in 2004) has 2,257 and Iraq's (agreed in 2005) has 2,066.
In this context, it seems to me, less is more. The human rights
situation in Northern Ireland is not so bad, or so precarious,
as to require a Bill of Rights that is more penetrative than any
other such document in the world.
10. Not only is there no longer a human
rights deficit in Northern Ireland, there is also no plausible
case to be made for saying that unless Northern Ireland obtains
a comprehensive Bill of Rights the peace process there will fall
apart. In years gone by I myself occasionally resorted to that
last-gasp argument while never actually believing it to be a strong
point. To rely upon it today is to retreat to a position of desperation.
The peace process in Northern Ireland remains strong and vibrant,
as the reaction of politicians from across the political divide
to the recent despicable murders of two soldiers and a police
officer clearly indicate. No-one can realistically suggest that
the absence of a Bill of Rights is endangering peace or the development
of devolved government in Northern Ireland.
11. The second reality shows us that in
the Bill of Rights process to date there has been an over-emphasis
on form over substance. Many have fallen into the trap of thinking
that if only we could get additional human rights written into
a Bill of Rights the people of Northern Ireland would be guaranteed
protection against all sorts of government policies which are
disliked, especially those impinging on social and economic matters.
Such a belief might have some plausibility if the United Kingdom
were a country where the courts could strike down legislation
as invalid if it contravenes human rights, but that has not been,
and is not, the case, and very few respondents to the Commission's
consultation documents have stated that they wish the basic principle
of Parliamentary sovereignty to be abandoned. Giving too much
power to unelected judges is an intensely undemocratic and potentially
unwise thing to do. At the end of the day, would people prefer
the final say on what rights they have to be determined by 12 unelected
justices in the UK's Supreme Court or by 647 elected MPs
in the House of Commons and/or 108 MLAs in Belfast?
12. The third reality should lead us to
conclude that a Bill of Rights for Northern Ireland, while addressing
the human rights issues thrown up by "the particular circumstances"
of the place, should not attempt to cover matters which are better
left to political debate and compromise. If rights are inserted
in the Bill in an attempt to address the peculiarities of Northern
Ireland's divided society, this will risk undermining the basic
principle that human rights are universal norms. Historic difficulties
that are special to Northern Ireland (eg that a substantial proportion
of the population would rather be living in a united Ireland than
in the United Kingdom) can and should be addressed through other
provisions in the constitutional arrangements for Northern Ireland,
but not in a Bill of Rights.
13.Thus, measures required to ensure that there
is "mutual respect for the identity and ethos of both communities
and parity of esteem "should not be formulated as "human
rights" but as locally important constitutional principles.
I know that the Belfast (Good Friday) Agreement suggests the contrary,
but that only goes to show that a document drafted in relative
haste more than 11 years ago should not be considered as
written in tablets of stone. Besides, the campaign for a Bill
of Rights for Northern Ireland long pre-dates 1998 and it
would be wrong for that campaign to be now constrained by the
rather fuzzy wording of a political agreement which did not even
say that a Bill of Rights should be enacted for Northern
Ireland.
CONCLUSIONS
14. All of this leads me to conclude that
there should definitely be a Bill of Rights for Northern Ireland
enacted at Westminster but that it should be one that is much
less ambitious in scope than the Human Rights Commission has been
arguing for since 2001. Achieving political support for such an
abbreviated Bill of Rights will be much easier—and political
support across the spectrum within Northern Ireland is essential,
because any attempt by Westminster to impose a more broad-based
Bill against the wishes of the unionist, nationalist or non-sectarian
parties in Northern Ireland would be extremely destabilising for
the Assembly there. If in due course the MLAs of Northern Ireland
wish to go beyond Westminster's Bill of Rights for Northern Ireland—eg
in areas such as education, health and housing, for which responsibility
has been devolved—that is entirely up to them.
15. The Bill of Rights is never going to
be the last word on the protection of human rights in Northern
Ireland, any more than the first 10 amendments to the US
Constitution "solved" the human rights problems in that
country for all time (the US Supreme Court was able to find slavery
to be compatible with the Bill of Rights as late as 1857). There
will continue to be a need for specific legislation detailing
the legal rights available in particular contexts. A Bill of Rights,
in other words, should be a framework. It will always need to
be supplemented by various support structures.
16. Finally, a Bill of Rights for Northern
Ireland should contain some provisions referring to "responsibilities".
Amazingly, this concept has hardly featured at all in the Human
Rights Commission's proposals to date, nor in the Forum's work.
This is because human rights campaigners have had a traditional
fear of mentioning the word "responsibility" in case
this is taken as suggesting that people should have certain human
rights only if they fulfil certain responsibilities. But that
is not what use of the word "responsibility" needs to
entail at all. Many international documents on human rights, from
the Universal Declaration of 1948 onwards, recognise that
people, groups and governments have responsibilities of one kind
or another. It is the proper exercise of those responsibilities
that makes the world a more humane and rights-friendly environment
in which to live. The UK government, in its recent green paper
on a Bill of Rights and Responsibilities for the United Kingdom,
has presented strong arguments for including some responsibilities
in a Bill of Rights and the Conservative Party also seems to be
in favour of that approach.
17. Traditional human rights campaigners
will not like such a development, just as they have not liked
the idea that bodies other than states can be said to have committed
human rights violations. But more progressive thinkers in the
human rights field, especially in Africa, do accept that there
is not necessarily anything antithetical to rights in the proper
use of the concept of responsibilities. I would have thought that
in Northern Ireland, where individuals and groups acted very irresponsibly
for years, an even stronger case can be made than elsewhere in
the United Kingdom or Ireland for including responsibilities in
a Bill of Rights. As I have stated elsewhere, if it takes this
"concession" to entice people who would otherwise be
sceptical about a Bill of Rights for Northern Ireland to begin
to support the idea, I for one am happy to so concede.
18. In short, I would argue for a relatively
brief Bill of Rights to be enacted at Westminster for Northern
Ireland, one that the five main political parties in Northern
Ireland can agree upon as a good solid starting-point for guaranteeing
human rights that genuinely need further protection in Northern
Ireland. The Bill should also refer to some responsibilities placed
on individuals, on some groups and on public authorities. In due
course thought can be given to what additional legislation should
be passed—by the Northern Ireland Assembly—to protect
human rights even further.
15 April 2009
41 Professor of International and Comparative Law at
Queen's University Belfast, and Director of the Human Rights Centre
in the School of Law at that University, but submitting this evidence
in a purely personal capacity. Back
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