Examination of Witnesses (Questions 1-42)
MR THOMAS
DUNCAN, MS
ANN HOPE,
PROFESSOR COLIN
HARVEY AND
MS VIRGINA
MCVEA
16 MARCH 2009
Q1 Chairman: Could I welcome you
to this public session. Mr Duncan, are you going to lead?
Mr Duncan: I am
going to lead.
Q2 Chairman: Could I welcome you
and your colleagues and say how much we appreciate your coming
to give this evidence in public. Could I ask you if you would
like, just briefly to introduce your team?
Mr Duncan: Yes, certainly. First
of all, can I say thank you for hearing us this morning, giving
us this opportunity to speak to you, and to apologise for our
Chief Commissioner who is out of the country at the moment on
Commission business. She sends her apologies and her good wishes
as well. Can I just introduce, from my left, Professor Colin Harvey,
who is a Commissioner; Ms Ann Hope, who is a Commissioner; and
Ms Virginia McVea, who is a senior member of our legal team at
the Commission.
Q3 Chairman: Thank you very much
indeed. You are all very welcome. Before I begin the questioning,
is there anything that you would like to say by way of opening
statement?
Mr Duncan: Yes, I would like to
make a short statement of two or three minutes perhaps to set
the scene for your discussion and to allow us to go on.
Q4 Chairman: Of course.
Mr Duncan: Basically, we go back
to the Good Friday Agreement, which of course was in April 1998.
The Good Friday Agreement laid down the guidelines for the formation
of the Commission and defined its mandate for the advice which
we were to produce on the Bill of Rights. For those of you who
wish to refresh yourselves on that mandate, the mandate is expressed
on page eight in our document of advice. The date of formation
of the first Commission was 1 March 1999. The Human Rights Commission
has the Chief Commissioner and nine part-time Commissioners. The
first Commission was under the chairmanship of Professor Brice
Dickson, who was Chief Commissioner. In the process of their deliberations
on the Bill of Rights the first Commission had widespread consultation
with all of the NGOS, including the Human Rights Consortium, which
was founded in 2000, and they also consulted with interest groups.
They conducted a series of independent surveys amongst the public
culminating in 2004 which showed that 87% of respondents in Northern
Ireland supported a proposed Bill of Rights. The first Commission
concluded its work on the Bill of Rights in 1995 with the production
of a document outlining its conclusions and ideas in the form
of a handover document and this document was entitled Taking
Forward a Bill of Rights. This document was for the new Commission
to consider. A largely new Commission was formed on 1 September
2005 with a new Chief Commissioner, Mrs Monica McWilliams. We
then had to consider the handover document, but our first decision
was to further develop these ideas and integrate the thinking
of the new Commission into the logic of it. The Bill of Rights
Working Group was formed to advance this aim. Over the course
of time we have continued consultation with NGOs, political parties
within Northern Ireland, church leaders, human rights spokespersons
from major parties at Westminster, Irish Government officials,
the Northern Ireland Office and various interest groups. We even
had advice from Judge Albie Sachs who co-authored the South African
Bill of Rights and who had first-hand knowledge of its outworking.
All political parties in Northern Ireland supported the logic
of a Bill of Rights for Northern Ireland, albeit with differing
views as to what it should contain. The St Andrews Agreement in
2006 reaffirmed the intention of the Government to actively promote
the advancement of human rights and committed it to establish
a forum to advise the Northern Ireland Human Rights Commission
in regard to the content of the Bill of Rights. Meanwhile, we
continued to develop further views of the Commission and opinions
expressed were noted during various consultation exercises. The
Bill of Rights Forum was then created and began its work in December
2006 under the chairmanship of Chris Sidoti to advise the NIHRC
about what they thought should be in the Bill of Rights. The Forum
consists of 28 nominees from NGOs, civic society, churches, unions,
business and the political parties. The Forum completed its advice
and presented it to the Commission on 31 March 2008. At that stage,
therefore, the Commission had completed the development of its
own ideas and also had the benefit of the views of the Forum as
to the content of the Bill of Rights. The Forum work was the final
piece in nine years of consultation. The Bill of Rights Working
Group then began to draw all the threads together. A series of
tests was devised by the Commission after legal advice and consultation
on the application of its mandate in the Good Friday Agreement.
This allowed each proposed right to be tested to ascertain if
the proposed right met certain defined parameters. This test and
the parameters are outlined on pages 177-178 of the Commission's
final advice to the Secretary of State. For example, the first
test was: "Is the case made that this proposed right arises
out of the particular circumstances of Northern Ireland?"
There were seven guidelines to this test alone before a conclusion
was reached for each proposed right. Advice was sought from lawyers
upon the application of the test to each proposed right and the
inclusion of it, or otherwise, within the Bill of Rights advice.
During this stage discussions were maintained with the Northern
Ireland Office, the political parties and interest groups to make
them aware of our methodology and, indeed, this methodology was
published in June 2008. Discussion after 54 meetings of the Working
Group was concluded at the end of November 2008. At almost the
final stage, two of the Commission members indicated that they
wished to record their dissent from the report. There was, in
fact, no minority report presented at the conclusion of the final
meeting of the Working Group and both dissenting Commissioners
declined the offer to have their views included in the minutes
of the meeting when their dissent was first voiced, the minutes
which would be available before the handover date for the advice
of the Commission. The views of the two dissenting Commissioners
are, however, in the public domain. The advice was presented to
the Secretary of State on 10 December 2008, a 198 page document.
The Northern Ireland Office will shortly produce their consideration
of our advice, we think in the spring, and we were told that there
will be a 12 week consultation period. We hope then that legislation
will follow at an early stage. The Commission continues to engage
with political parties and MPs to clarify our advice, including
having a hearing in recent weeks at the Joint Committee on Human
Rights at Westminster. We have also had a meeting at the Offices
of the First and Deputy First Ministers. The Joint Committee on
Human Rights at Westminster has made proposals for a Bill of Rights
for England and Wales, to which the Government have responded,
and we await the Green Paper to be published some time around
Easter. In conclusion, gentlemen, we believe that we have produced
a document which adheres faithfully to our mandate, honestly reflects
the mass of consultation involved, has a sound process and methodology
and has a validity based upon the usage of the best available
domestic and international legal and professional advice. The
people advising us over the period are listed in Appendix 6 in
our advice. We believe that the advice, if enacted, will provide
within Northern Ireland a platform to help take us away from our
contentious past and help to build a confidence and new-found
trust amongst all our people in our form of government and in
the various public bodies. We believe that the Bill of Rights
as proposed in our advice is for everyone who lives in Northern
Ireland, be they old or young, male or female, orange or green,
Caucasian or non-Caucasian. If you live in Northern Ireland I
would say it is for you and it is for me. Finally, we believe
that the Bill of Rights will offer a support and protection to
all those in our society who are most vulnerable to abuse of their
rights as human beings. There are many around us who are vulnerable
because of age, health or circumstances. We note that those bodies
and organisations which represent those vulnerable groups of people
have soundly endorsed our advice to Government and we note also
with satisfaction that there is a fair degree of favourable response
to our advice. Gentlemen, that concludes my comments.
Q5 Chairman: Well, I am quite relieved
because that is the longest three minutes I have ever heard in
my life, I must say!
Mr Duncan: Yes, but there were
things to be said.
Q6 Chairman: Yes, and they have now
been said, so I am not going to ask your fellow Commissioners
to add to that otherwise we will get no questioning done at all.
Nobody for a moment could accuse you of not being thorough and
diligent in the work that you have done, and nobody could accuse
you of not taking infinite pains to try and produce a document
that would be acceptable right across the communities within Northern
Ireland, but it is equally clear that you have not produced such
a document because there are still very real differences of opinion,
particularly among what one would loosely call the two major communities.
How are you going to go about addressing these cross-community
differences? On the one hand, if I can be very general in this,
you have got a unionist community that is entirely in favour of
having a Bill of Rights but wishes it to be fairly tightly and
clearly drawn, and you have another community that would like
it to be much more all-embracing. How can you reconcile these
two, some people would say, diametrically opposed views to a Bill
of Rights?
Mr Duncan: If I could speak in
advance of my colleagues and maybe some of them would like to
come in on that as well. Basically, we would say that there are
as many opinions as to what should be in the Bill of Rights almost
as there are stars in the sky and there will never be a situation
where you will produce a Bill of Rights which will suit everyone.
We, on the Human Rights Commission, adopted an apolitical stance
and took an honest and sound judgment from what we as individuals,
not representing any political party as such, felt should be in
a Bill of Rights. We are prepared to stand by that and allow our
advice to go into the political debate and consultation which
follows. Of course, we were aware at all stages that we would
never please every political party, I do not think there is anything
that has ever been written in Ireland that pleases every political
party, but nevertheless there are factors within our document
which we feel are sound and we believe we did what it said on
the tin and fulfilled our mandate to the best of our ability.
All we can say is that we have put on the table the best of our
thinking and it is then for others to judge and the Northern Ireland
Office will produce their own deliberation and then this will
go out to consultation.
Q7 Chairman: Since you delivered
your own advice to the Secretary of State, the consultative group,
the Eames-Bradley Group, has delivered its report. Your recommendations
on what you call "effective investigation of all violations
of the right to life relating to the conflict in Northern Ireland",
how do these in your estimation accord with the recommendations
of the consultative group?
Mr Duncan: I am going to ask Virginia
to comment on our view on the Eames-Bradley Report and the background
to it.
Ms McVea: If you will suffer me
giving an explanation, it will not take long. Since the time of
its inception the Commission has advised Government that the past
needed to be dealt with in Northern Ireland and when we came diligently
to consider our mandate, international standards and the Convention,
we realised that the right to life had indeed been articulated,
a great deal had been ventilated in relation to investigative
standards and partial independent, effective investigation brought
promptly. What the Commission identified as supplementary was
that any mechanism that was going to come into effect in Northern
Ireland had to be human rights compliant itself. Arguably the
McKerr decision in the House of Lords had ramifications for Northern
Ireland that were unparalleled anywhere else in relation to the
number of unsolved killings that remained on the police books
here, so to speak. We would argue that those have yet to have
the investigation function fully applied to them. In relation
to Eames-Bradley, therefore, whilst the Commission is currently
preparing a response, that was the advice we gave, that we regarded
Government's creation of the consultative panel as an acknowledgment
of what we had long called for and we made submissions to that
group.
Q8 Chairman: Do you support their
central recommendation on a Legacy Commission?
Ms McVea: The Commission as a
body has not made a statement on that, so it would be improper
for me to put it on the record. We do support the identification
of a need for a mechanism. We have articulated in venues, such
as the Council of Europe through the Committee of Ministers, that
the package of measures the Government has put in place is not
satisfying the requirements of the right to life and, therefore,
something additional is required.
Q9 Chairman: But you have not come
to any conclusion on the specific recommendation of a Legacy Commission?
Ms McVea: No.
Q10 Chairman: When will you come
to such a conclusion?
Mr Duncan: That is on the agenda
for our next monthly meeting.
Q11 Chairman: When will that be?
Mr Duncan: Sometime in mid-March.
I cannot remember the exact date.
Q12 Chairman: It is the middle of
March now.
Mr Duncan: Sorry, the middle of
April.
Q13 Stephen Pound: I do not want
to give too much weight to the dissenting voices amongst your
Commissioners that was referred to, but Lady Daphne Trimble has
identified an issue that is of considerable concern to many of
us and it can broadly be described as the question of whether
you are moving away from the universality of human rights to the
localism of human rights. There is an issue as to whether you
are actually constructing a template for the future or a tool
to address the issues of the past. For many of us there does seem
to be a certain dichotomy in here where human rights stop and
start between Larne and Stranraer and you have additional ones
at one end of the ferry and not at the other, to put it crudely.
I understand the difficulty of disaggregating issues in the north
of Ireland but I would be very grateful if you could explain on
the record why you feel you need a different Bill of Rights in
this part of the United Kingdom.
Mr Duncan: The reason we feel
that we need a different Bill of Rights, first of all, is because
it was in our mandate and the Good Friday Agreement said that
there should be a Bill of Rights for Northern Ireland which would
recognise the peculiar circumstances of Northern Ireland. We have
consulted in Westminster, not just with the Government as such
but shadow members of the Cabinet as well, to hear their views
on whether a separate Bill of Rights for Northern Ireland should
be—
Q14 Stephen Pound: I think they are
probably members of the Shadow Cabinet rather than shadow members.
Many of my Cabinet colleagues are shadowy, but they are not usually
described as such!
Mr Duncan: Whatever you want to
call them. Basically, the view that kept coming back to us was
that a separate Bill of Rights for Northern Ireland was entirely
appropriate. What we have done is fulfilled our mandate as best
we can and produced a Bill of Rights which is all-embracing for
Northern Ireland and we will see what happens when the UK get
their act together on the Bill of Rights and responsibilities.
Q15 Stephen Pound: I appreciate that
point, Sir, and we have been talking about this for about 36 years
which was when there were some of the first references. Do you
see a direct read across with a Bill of Rights in England and
Wales to the Bill of Rights in the north or do you think it will
be a permanently different one? Surely the logic of that is we
are moving away from universal human rights, which I profoundly
would hope is something that we would all accept as a universal
right.
Mr Duncan: There is nothing that
is set in stone and there is even talk of where the Human Rights
Act will go in the future and so on. We feel we have produced
an advice based on our thinking at this point in time.
Q16 Chairman: Do you face up to the
logic that if what you are recommending comes to pass there will
actually be a different interpretation, to take Mr Pound's words,
in Stranraer from Larne, and a different one again in Dundalk?
Do you accept the logic of that?
Mr Duncan: Dundalk has a Charter
of Rights.
Q17 Chairman: I am well aware where
Dundalk is. The point that I am making is do you accept the fact
that the logic of your argument would create a situation where
there was a different interpretation of rights in those three
places, two of which are within the jurisdiction of Her Majesty's
Government of the United Kingdom and the other is within the jurisdiction
of the Government of the Republic? I am not saying that this is
good or bad, I am merely saying do you accept that is the logic
of your argument?
Ms McVea: The Commission took
the view if that ended up being the result that that was in keeping
with the Constitutional Settlement and devolution itself. As far
back as the 1970s with the Standing Advisory Commission on Human
Rights there was a recognition of what they referred to as the
"special needs" of the people of Northern Ireland. Throughout
its work, considering its mandate, the Commission has been mindful,
as I think all are, of the special needs of the people of Northern
Ireland. What we were also aware of as we went through the Convention,
supplementarity and international standards, was that everyone
could potentially benefit, and we make no apologies for the fact
that if in other parts of the UK people want to benefit from some
of these rights, in our opinion that could only be good thing.
That is something to be decided by Government. We have complied
with our mandate.
Q18 Stephen Pound: Surely, again,
the logic of that is you are recasting the Universal Declaration
of Human Rights. If you are saying there are additional human
rights here which you have drawn attention to, surely the rest
of the world should be enjoying those.
Ms McVea: I do not think we would
be dissuaded by that. That is the difficulty with human rights,
there are international standards out there and we are seeking
to improve what is available in individual states.
Q19 Chairman: What do you say to
the argument of those who would say that basic human rights can
and should be clearly and simply defined and should be universally
applicable and the sort of argument you are advocating is more
like a codification of good behaviour?
Professor Harvey: Again, could
I just reaffirm the basis for this was in our mandate in the Belfast
Good Friday Agreement and we were working to that. I would also
point out that we launched this document on 10 December 2008,
which was the 60th anniversary of the Universal Declaration of
Human Rights, underpinning our commitment to that. You will find
in the document consistent references in many parts of it to "everyone",
again emphasising the universality of the rights in it. An important
part of our mandate was about supplementing the European Convention
on Human Rights and international human rights law and international
standards are not all contained within the European Convention
on Human Rights. The Convention contains some significant civil
and political rights, and has gone slightly beyond that in some
respects through judicial interpretation, but the sum of international
human rights law is not just contained in the European Convention
on Human Rights and as part of our process we clearly identified
areas within our mandate where the Convention could be supplemented
to, in a sense, achieve the sort of universality of protection
that you are talking about.
Q20 Chairman: Does that not devalue
the very concept by being so diffuse?
Professor Harvey: It is important
to point out that the Universal Declaration of Human Rights recognised
civil, political, economic, social and cultural rights and, in
a sense, our document is in tune with that very aspiration, that
all the generations of rights should be brought together in one
document, a Bill of Rights for Northern Ireland.
Q21 Mr Murphy: Surely, therefore,
it would be easy to draft a UK-wide Bill that would cover everything
that was required in Northern Ireland and the benefits would then
be spread throughout the UK?
Professor Harvey: Could I respond
to that? I think the Government and others made it quite clear
that there is no necessary contradiction or tension between a
UK-wide approach and a particular approach in Northern Ireland
which draws very much on our particular circumstances. I think
that has been fairly widely recognised. While we are the Northern
Ireland Human Rights Commission and our mandate relates to Northern
Ireland, and we have argued for the rights we have proposed, we
feel that our debate is very much in tune with the UK-wide debate
that is happening across the political parties in the UK around
a Bill of Rights. The Joint Committee on Human Rights at Westminster
in August of last year proposed a document which contained details
on a Bill of Rights for the UK. While very focused on Northern
Ireland for very obvious reasons, we have a mandate and have tried
to stick to that mandate in providing advice for Northern Ireland,
but we feel that many of the things we are discussing are very
much in tune with debates that are happening across the UK.
Q22 Mr Grogan: Mr Duncan, you said
in your introduction that you had quite hard and specific tests
as to what rights to include and there had to be some element
of Northern Ireland specificity. I can see looking down the list
of rights you have proposed—freedom from violence, exploitation,
harassment, right to identity, language rights—you could
argue that, but is it more difficult to argue that there are distinctive
rights that need to be enshrined in that when it comes down to
environmental rights and economic and social rights?
Ms Hope: It is officially acknowledged
that grievances amongst large sections of the population in Northern
Ireland in relation to discrimination, exclusion, poverty, particularly
in the areas of employment and housing, were prime factors in
the conflict in Northern Ireland. That relationship between social
and economic grievances and the conflict was recognised by the
Government at the outbreak of the conflict and Lord Cameron made
specific reference to them in his Commission Report. If we were
to look at the particular circumstances in Northern Ireland, remembering
that this Bill of Rights is a Bill of Rights addressing issues
in a society that is coming out of conflict, then, as far as we
were concerned, social and economic rights had to be part of that.
In fact, it is one of the confidence building measures that would
be contained in the Bill, not least to say the abuses that took
place around those particular rights would not happen again, so
they should be very much in a Bill of Rights. Additionally, if
you look at what your own Joint Committee on Human Rights has
said at Westminster, they have also included social and economic
rights in what they would like to see in a Bill of Rights for
the UK. In fact, I think we are now in tune with what international
standards and international thinking are about. Civil and political
rights, if you like, were the rights that were normally included
in Bills of Rights, but more and more current Bills of Rights
are including the social and economic rights as well.
Q23 Mr Grogan: And environmental
rights?
Ms Hope: And environmental rights.
I take it you have had a look at the website and we would need
to include those as well. For us, the Bill of Rights is not just
about addressing the legacy of the past in Northern Ireland, it
should be a forward looking document and one of the main considerations,
now we have had civil and political rights, we have gone on to
the next generation of rights, social and economic, and there
is another generation of rights, which is environmental rights,
and we need to address those as well.
Q24 David Simpson: Many people I
speak to in the business world and different organisations, their
opinions would be that human rights legislation and equality legislation
is coming out of our ears in Northern Ireland and their belief
would be there is hardly any other part of the United Kingdom
as rigidly governed in relation to this legislation because of
the background of Northern Ireland between the two communities.
I see that it has taken some eight years to produce this and maybe
you could give us some explanation of that. On the point that
the Chairman raised earlier on in relation to agreement on this,
when it comes to publication of your report and your document
that will go forward to the parties, if there is discussion, whether
it be in this House or wherever, and there is no agreement, is
it dead?
Mr Duncan: Basically, and I think
maybe everyone should comment on this, as far as we are concerned,
we set out to fulfil our mandate and produce an advice on the
Bill of Rights and it now goes into the political domain, if you
like.
Q25 Chairman: That is fine, you have
done your duty and nobody for a minute could impugn your credentials
on that front, but Mr Simpson asks a simple question: if there
is not political consensus effectively in Stormont among the political
parties following devolution, is this dead or will it carry on?
Mr Duncan: You are asking us a
question which we do not know the answer to because the governing
body, if you like, that controls all this is the Westminster Government
through the Northern Ireland Office and they will undoubtedly
listen to what the debate in this building will produce and if
the debate in this building comes out that there is no consensus
for what should be in the Bill of Rights then it goes back to
the Northern Ireland Office and through that to the Government
to decide on where they go. You are asking us a question that
we have no control over.
Q26 Chairman: Thank you for putting
that on the record.
Professor Harvey: What the process
has demonstrated, and it has been a lengthy process launched in
2000, is that there is a diversity of opinion on what should be
in a Bill of Rights. In one sense that is a healthy sign because
in such a significantly constitutional document it would be worrying
if there was not a diversity of opinion on what should be in it.
I think what the Commission has taken great heart from as part
of this process has been that the political parties and across
all communities have taken the view that there should be a Bill
of Rights, which is a positive thing to note, but there is a diversity
of view in relation to what its content is. As Tom has underlined,
we were charged with providing advice and we look forward to the
extensive debate to come in which we will be defending our proposals
which we feel are credible and authoritative which provide a persuasive
way forward. We will be arguing and debating and trying to persuade
those who remain sceptical. We fully acknowledge that the process
has made clear that there is a diversity of opinion on content
but agreement that there should be a Bill of Rights.
Q27 Mr Hepburn: Just two questions.
You said that the Working Group consulted widely on the document
that you produced and you mentioned consulting with political
parties, NGOs and other groups. I would be interested to find
out if you consulted with trade unions that represent workers
and working people in both communities, such as Unison, the health
workers and local government workers' union and the teachers'
union. Were these organisations consulted and what sort of response
did they bring back?
Mr Duncan: The unions had a voice
in the Forum, which was providing advice. Over the years we have
consulted with anybody who has really wanted to talk to us or
meet with us and they have been proactive in this by inviting
people to talk to us. Over the years there has been consultation,
not necessarily at Commission level but maybe at Chief Commissioner
level with the various trade unions involved in Northern Ireland.
Q28 Mr Hepburn: They have been positive
towards the work that you have been doing?
Mr Duncan: Yes, I think the general
view is that they are positive.
Ms Hope: In my previous existence
I worked for the Irish Congress of Trade Unions and one of my
responsibilities was the Bill of Rights. The Commission has not
gone out to consultation on this particular document because we
think the amount of consultation that has already taken place
has been enough and we have heard all these voices. I was one
of the people who organised the consultations throughout the trade
union movement in Northern Ireland on the previous documents and
while we responded to everything that was in both documents we
particularly responded to the social and economic rights chapters.
That was and still is a positive response. In fact, when this
document was produced the Northern Ireland Committee of the Irish
Congress of Trade Unions wrote to the press commending the Commission
on the document, particularly on the social and economic rights
in it. Yes, they have been consulted.
Q29 Mr Hepburn: My second question
is on the list of rights you have identified. I notice that you
have got rights for sick children, social rights, including rights
to health, standard of living, social security, accommodation,
they are very wide-ranging dealing from work to health rights,
but what I cannot understand is even though you mention children
you do not mention education. Has education been put down as a
right? I do not want to get into the domestics of the Northern
Ireland education system because it is—
Chairman: Better steer clear of that,
I think.
Mr Hepburn: —for the devolved Assembly
to sort out itself. It does come to mind that Northern Ireland,
whereas it has some of the best education systems in the world,
also has some of the worst in the UK, so why was education not
mentioned?
Mr Duncan: We have education mentioned.
Ms Hope: It is page 38 of our
advice.
Mr Hepburn: It is not mentioned in my
briefing document.
Ms Hope: Also, pages 91-93 explain
more fully why we have those particular rights in.
Chairman: Covered at some length, yes.
Q30 Dr McDonnell: I have two questions
and one may be simpler than the other. The first one is your recommendations
appear to suggest that on women's rights in terms of equal participation
of women in political and public life there was the principle
of positive discrimination and there was some dissent from that
by one of your Commissioners? Is that a true assessment? Are you
suggesting that there should be positive discrimination where
there are deficits?
Stephen Pound: We would be grateful if
you did not draw attention to the fact that the Committee consists
of seven men as present here today!
Chairman: I was just going to correct
you. The Committee has four women.
Ms Hope: Colin wants to speak
on the equality provision. The Good Friday Agreement itself, the
Belfast Agreement, did include a statement saying that the participation
of women in public life was one of the things that needed to be
addressed given that under-representation. We have not, I understand,
in our advice recommended quotas, et cetera, but we have recommended
actions that would address that. What those actions are are up
to the legislators of the parties themselves. We do have a strong
equality clause. Colin, do you want to speak on that?
Professor Harvey: Drawing on our
mandate, the mandate asked for us to draw on international instruments
and experience. What international human rights law makes clear
in the equality context is that there will be a need for positive
action in certain contexts and that is an example of it.
Chairman: I think I must just put on
the record, in case there is any misunderstanding, that there
are four ladies on this Committee, it just so happens that they
are not here at the moment, three of them for reasons of indisposition
sadly. We do have four ladies on this Committee. Your second question,
Dr McDonnell.
Q31 Dr McDonnell: Thank you, Chairman.
One of the other questions that I worry about is while legislation
would be vested at the moment in the Secretary of State, as we
travel down the road there will be some devolution locally here.
How do you see us retaining a balance? How do you see us balancing
the House of Commons element of management, the Secretary of State's
responsibility, with some of the responsibility that would devolve
to our Local Assembly? My question really is how can we ensure
that would be functional if we are coming from two different angles?
Mr Duncan: Basically the Bill
of Rights is a reserve matter and is initially the responsibility
of the Westminster Government. In terms of devolution, we have
suggested within our advice that there is a mechanism by which
it is not set in stone forever and the Bill of Rights in the future
could be changed by a cross-community vote in this House here
and that would be directed towards Westminster that we would change
what the Bill of Rights so said. Additionally, within the actual
outworking of a Bill of Rights within Northern Ireland there is
a very clear suggestion as to what the role of the Northern Ireland
parties and the Northern Ireland Assembly would be in that we
are proposing that there would be a similar, as exists in Westminster,
committee on human rights which would look at future legislation
and see if it is human rights-proof, to raise human rights issues
and carry forward the logic and extension of the Bill of Rights.
There are lots of other factors which are in favour of the outworking
of the Bill of Rights here and within the Assembly we have a programme
of government and targets which are set and within the areas of
rights which are progressively realised that provides a sound
methodology to assess whether the rights so stated are being addressed
and realised. There is a very clear pathway for the devolved administration
here.
Q32 Chairman: Mr Duncan, can I just
ask you a question about co-operation across the border. We are
conducting an inquiry into cross-border co-operation and in the
context of that inquiry we have had informal discussions with
the Commissioner for Human Rights in Dublin. What sort of contact
have you had and how practical would it be to have a code that
applied both sides of the border, bearing in mind we have had
very clear evidence from both sides that in such issues as child
protection absolute compatibility is thoroughly desirable and
there are people working on both sides of the border on the issue
of sex offenders and so on to try and make that so? Could you
say a word about your work in that context?
Mr Duncan: Basically, the Northern
Ireland Human Rights Commission meets on a bimonthly basis with
the Human Rights Commission in Dublin. We raise all sorts of issues.
We talk about some of the things that you have talked about. We
have expressed concerns about child protection on both sides of
the border where there is a very clear difference of control and
understanding as to how it should apply. We talk about that and
issues which cross the border and recognise no border, such as
trafficking, racism and so on. We are beginning to talk about
a charter of rights for the island of Ireland which, again, is
part of the Good Friday Agreement. We have these meetings where
we alternate between Belfast and Dublin, we have them regularly
and discussions are ongoing about some of the things you have
mentioned. The charter for the island of Ireland is part of our
mandate as well and that will begin to gather a head of steam
in due course.
Q33 Chairman: Thank you. This Committee
will have to decide whether it wishes to receive oral evidence
from the two dissenting Commissioners, and that is a decision
we have to make in due course and, of course, we will give them
every opportunity to put in written submissions. Lady Trimble
in particular has raised a number of what, on the face of it,
seem to be very real criticisms of your report and the way you
have operated. What would your answer be to this Committee?
Mr Duncan: In regard to whether
they should be giving evidence?
Chairman: No, that is for our Committee
to decide. How do you respond to the substance of Lady Trimble's
criticisms which perhaps can be summed up by saying you are going
far beyond the remit that you were given and to which you should
have been working?
Mr Duncan: We said a moment ago
there are as many different opinions as there are stars in the
sky and Lady Trimble is one of those stars and she has her own
opinions. On the Commission, we take the view that we do not agree
with them and take the view that some of them are factually incorrect
and, therefore, we stand by what we say and are prepared to defend
what we say against what Lady Trimble has said.
Q34 Mr Murphy: Could I ask whether
the Commission would agree to a UK-wide Bill of Rights provided
it covered the points that are very specific to Northern Ireland?
Mr Duncan: The problem is that
nobody in the UK seems to know where they are going at the minute.
When we were talking to the Joint Committee a few weeks ago the
message came back to us that we were light years ahead of them
in our consultation and thinking. We even get the vibes that the
Green Paper will not be very definitive but will be very general.
A UK Bill of Rights sometime in the future when that comes about
can take into account the status quo that exists in Northern Ireland.
Q35 Mr Murphy: You have no objection
to that in principle?
Mr Duncan: I would say not, but
we are fulfilling our mandate which is for a separate Bill of
Rights for Northern Ireland. There is nothing cast in stone.
Q36 Chairman: Thank you very much
indeed. Could I come back to the document that is occupying our
attention a lot at the moment, which is the consultative group's
report. We are going to give our own report on that to Parliament
in the course of the next two or three months. For reasons that
I completely understand, and my colleagues would also understand,
you have refused to answer on the question of the Legacy Commission,
but what about their very emphatic view on future public inquiries?
Mr Duncan: As I say, we are not
going to be drawn into pre-empting what our deliberations will
be next month. I do not know whether you remember us sitting behind
Lord Eames when he was giving his evidence to you at the last
meeting. We listened to that and listened to the content and tone
of the meeting and we think we will reflect on all aspects of
the report and issue a statement in April.
Q37 Chairman: We would be very grateful,
bearing in mind our own inquiries, for an early indication of
your views because we would hope to be able to take those into
account in formulating our own response.
Mr Duncan: That is reasonable.
Ms McVea: Our understanding is
the inquiries that are currently running will have concluded by
the time that any Legacy Commission would have been set up so,
in effect, for those inquiries that is irrelevant. There is one
outstanding inquiry in terms of Judge Cory's work and that is
the Finucane Inquiry.
Q38 Chairman: Indeed.
Ms McVea: There is an offer on
the table that the Legacy Commission would absorb that. That is
a matter for response by the Finucane family. The human rights
compliant mechanism that the Commission has continued to argue
for, no matter what the package of measures are, the Government
has had inquests and HET and inquiries and every one has been
deemed by the Government to satisfy Article 2. We have said that
has not satisfied Article 2 and also the inquiries themselves
as previously run were raising concerns about Article 2. The things
that we have already articulated would continue to apply. The
Human Rights standard is our benchmark for Article 2 and how that
is achieved.
Professor Harvey: Talking about
our Bill of Rights advice, we do make a recommendation on the
right to life. We do talk about violations of the right to life
relating to the conflict in Northern Ireland being effectively
investigated, but we do say in the Bill of Rights advice that
any mechanisms established must be fully in compliance with international
human rights law. Obviously we will be issuing a further response
in April, but in the Bill of Rights advice we do speak to the
right to life.
Q39 Chairman: Thank you. We are going
to be taking evidence very shortly from the Human Rights Consortium.
Would you like to give us your comments on the Consortium, how
it is operated and what your relationships with the Consortium
are?
Stephen Pound: Do not hold back in any
way! Be full and frank!
Chairman: Just between ourselves?
Mr Duncan: I see smiles over my
left shoulder here. We have always had a good relationship with
the Human Rights Consortium.
Q40 Stephen Pound: Do you have a
formal relationship?
Mrs Hope: We meet with them on
a regular basis.
Mr Duncan: It is not at full Commission
level, it would normally be a Commissioner, Chief Commissioner
and maybe one or two others.
Q41 Stephen Pound: Is that good practice
or is that enshrined in any sort of constitutional requirement?
Mr Duncan: It is just good practice
and it is a furtherance of our logic of consultation because the
only way to keep good relations with everybody in Northern Ireland
is to keep talking to them.
Stephen Pound: Yes, to talk to them.
Mr Duncan: We are heartened by
the fact that the Northern Ireland Human Rights Consortium is
behind us.
Stephen Pound: Indeed they are!
Chairman: Literally, yes!
Mr Duncan: Behind us emotionally
too on what we have said in the Bill of Rights. There might be
one or two little nuances where they feel they would liked to
have had in more than they would have liked to have out, but that
is a healthy debate. We have good friends on the Consortium and
I think they are still friends with us after our advice.
Q42 Chairman: In Northern Ireland,
as we have been told so often, where everybody knows everybody
else that is quite important.
Mr Duncan: Yes.
Chairman: Do any colleagues have any
other questions for our current witnesses? No. In which case,
I would like to thank you, Mr Duncan, Ms Hope, Professor Harvey
and Ms McVea for coming and giving us your views. Obviously we
will be taking these into account on three reports that we are
working on. One is, of course, the cross-border co-operation,
another is going to be on this issue of the Bill and whether there
should be one and what it should contain, and we are also going
to be seeing later today the Omagh Victims' Support Group and
some of the things you have said this morning are relevant in
that context. Thank you very much indeed, we much appreciate your
presence.
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