Joint Committee On Human Rights Fourteenth Report

6. The Bill of Rights

The mandate to draft a Bill of Rights

70. Under the Agreement[69] and the Northern Ireland Act,[70] the Commission is tasked with advising on the need for additional human rights provisions for Northern Ireland. The Agreement states that the Commission will be asked to consult and advise on the "scope for defining", in legislation, rights additional to those guaranteed by the ECHR. These additional rights are "to reflect the particular circumstances of Northern Ireland" and are to "draw as appropriate on international instruments and experience". In particular, they are to reflect the principles of respect for the identity and ethos of "both communities", and of parity of esteem, and to formulate clear protections against discrimination. The Commission's consultation on a Bill of Rights was launched in March 2000, following which the Commission published, in September 2001, a consultation document, Making a Bill of Rights for Northern Ireland, which included a draft text for a Bill of Rights. Since September 2001, the Commission has received responses to the consultation document, has continued to promote awareness of the Bill of Rights process, to conduct research into public opinion on the Bill of Rights, and has held a series of seminars to debate its proposals. Development of the Bill of Rights has been a major element of the Commission's work.

71. The extent of the Commission's mandate under paragraph 4 of the Agreement is ambiguous, and has been controversial. It has been argued that the requirement to advise on whether there is "scope for defining" additional rights does not authorise the drafting of a Bill of Rights by the Commission, until there is a government decision that such a Bill of Rights is needed. Some submissions made to our inquiry highlighted this concern.[71] However, the Commission's role in this regard is purely advisory: decisions on a potential Bill of Rights are for the NIO and the government as a whole, and ultimately for the legislature.

72. The Commission's draft Bill of Rights has been subjected to considerable criticism, in particular for internal inconsistency, for over extensiveness, for the inclusion of excessive detail on some points, and for the failure of the Commission to reach agreement on others.[72] Evidence to our inquiry pointed to the Commission's lack of a "unifying vision" of the Bill of Rights.[73]

73. The Chief Commissioner, in his evidence to us, defended the Bill as a preliminary draft intended to provoke discussion, and designed solely as a basis for consultation. The Minister similarly took a long view and, in his evidence to us, expressed support for the Commission's development of the Bill of Rights.[74] We agree that development of a Bill of Rights for Northern Ireland is still at a formative stage.

The scope and content of the Bill of Rights

74. The Commission's Draft Bill of Rights, is wide-ranging. The rights it would guarantee include:

—  democratic rights, including rights to free elections and participation in government;

—  cultural rights and rights to national and community identity;

—  equality and non-discrimination guarantees;

—  civil and political rights, including rights to life, freedom from torture, liberty and due process rights, family and private life rights;

—  victim's rights;

—  children's rights;

—  language rights;

—  economic and social rights, including rights to healthcare, housing, an adequate standard of living, and the right to work;

—  environmental rights.

75. The Commission acknowledges that such a broad catalogue of rights may seem to go beyond what is required by "the particular circumstances of Northern Ireland". However, it sees its proposal of a wide-ranging Bill of Rights, insofar as it might not fall within paragraph 4 of the Agreement, as justified under the Commission's general power under section 69(3)(b) of the Northern Ireland Act to make recommendations for the better protection of human rights in Northern Ireland.

76. In a letter to the Commission of November 2001, referring to the requirement in the Agreement that rights additional to the ECHR in the Bill of Rights be related to the "particular circumstances" of Northern Ireland, Des Browne MP, the then Northern Ireland Office Minister, said—

We would need to be convinced that amending provisions which provide a uniform framework of rights, safeguards and enforcement mechanisms throughout the UK was necessary to enshrine rights which reflected the unique circumstances of Northern Ireland and which could not otherwise be ensured. This is a very high hurdle indeed ...

The Draft Bill of Rights is also being prepared in the context of the government's review of the UK's international human rights obligations, which is considering acceptance of additional international human rights standards, as well as rights of individual petition under the UN human rights treaties. The meaning of the "particular circumstances of Northern Ireland" is fundamental to the Bill of Rights project. This important issue needs further debate and clarification, as an aid to better understanding of, and agreement on, the terms of any new Bill of Rights. We are, however, conscious of the need for the Commission to be clearly focussed on work that advances the promotion and protection of human rights in Northern Ireland, and to be clear about the opportunity costs and benefits of the various means it has at its disposal for achieving these aims. Success in reaching agreement and securing a Bill of Rights will further underpin the democratic content of the Agreement.

77. The perceived limitations to the Draft Bill of Rights have also been controversial, in particular in relation to the extent of the protection given to economic, social and cultural rights. The debate on whether and how these rights can be protected in Northern Ireland law raises issues we ourselves are considering a broader UK context in our inquires into the implementation of UN human rights treaties.[75] We ourselves intend to consider the desirability or practicality of incorporation of the rights contained in UN human rights treaties further in forthcoming reports, and we therefore welcome the debate taking place in Northern Ireland.

78. One controversy in the Bill of Rights debate has been the provisions in the Draft Bill protecting "community rights". These include many of the protections of the Framework Convention on National Minorities, but the rights which under the Convention are accorded to "minorities" would be guaranteed under the Draft Bill of Rights to all "communities".[76] However, by granting rights to majority as well as minority groups, the Bill of Rights could undermine the principle of parity of esteem between the two communities. There are also fears that, by entrenching a "two main communities" view of Northern Ireland society, the Bill could deepen the divisions which human rights protections might otherwise help to heal. There has also been concern that by guaranteeing rights to majority communities (be these linguistic, ethnic, religious etc) the Bill could undermine the rights of smaller minority groups most in need of protection.[77] In our view, these concerns require further debate and clarification and we will keep them under review.

The future Bill of Rights consultation process

79. The Commission has laid the foundations for a future Bill of Rights by consulting widely on its terms. Nevertheless, the Commission's management of the process so far has been criticised in evidence to this inquiry.[78] In the preparation of any Bill of Rights there are large questions to be grappled with. In Northern Ireland, it may be that these questions are only now beginning to be dealt with, and have been arrived at rather late, both by the Human Rights Commission and by the two governments and the drafters of the Agreement. Professor Christopher McCrudden noted in his evidence to us that the Bill of Rights was "woefully under theorised in the post-Good Friday Agreement context".[79] It appears that, although human rights were viewed by many as fundamental to the Agreement, the Commission undertook the Bill of Rights project without substantial discussion in the wider political community on its nature or purpose.

80. Perhaps the most significant debate concerns the relationship between a Northern Ireland Bill of Rights and the newly established (if currently suspended) devolved democratic institutions of Northern Ireland. There is a real concern that an overly prescriptive or detailed Bill of Rights would undermine the democratic institutions and constrain political negotiation on the future shape of Northern Ireland. This concern relates not only to the role of the Commission (as an unelected body) in drafting a Bill of Rights that might determine controversial issues, but also to the future role of the courts in applying a Bill of Rights, and in determining matters otherwise within the provenance of Parliament or the Assembly. It is feared that a Bill of Rights could become divisive rather than conciliatory: ECONI argue in their evidence that the Bill of Rights should not be overly prescriptive because "the best hope for our future together as a community lies in our ability to negotiate the nature of our society through the political process".[80]

81. When we put these concerns to the Commission, the Chief Commissioner answered that—

We have worked very hard to arrive at an understanding with the different political parties here, it has been more difficult in some quarters than in others. We have sought to engage, in particular with the Unionist parties, on human rights issues without for a moment sacrificing our commitment to the international human rights standards.

82. We recognise the legitimacy of the concerns expressed. However, we do not consider that these consequences need necessarily attach to a Bill of Rights. At its best, a Bill of Rights would not undermine, but support and enrich, democracy. It could enable participation in political debate and in society, through rights of freedom of expression and assembly, equality guarantees and, potentially, economic and social rights which address social exclusion. The contribution that a Bill of Rights can make in Northern Ireland to the process begun by the Agreement is to provide a neutral framework for political debate and the fullest individual participation in Northern Ireland society, on a basis of equality and fairness. A Bill of Rights also has a potential role in ensuring common standards North and South of the border. It will be for elected legislators to decide the form and content of any future human rights legislation applying to Northern Ireland.

83. The Commission made clear in its evidence to us that it would be receptive to any input from the political parties, and would welcome any agreed view which the political parties could arrive at on the Bill of Rights, in particular if this could be fed in to the Commission's own work on the Bill.[81] Following its oral evidence, the Commission held a consultation meeting to discuss how the Bill of Rights process might be taken forward, which it described to us in additional written evidence. It has proposed a structure for greater political involvement in the Bill of Rights process, based on a round table forum of the main political parties, alongside the Commission, with an independent chairperson.[82] The Commission would take receipt of these proposals before submitting its final advice to the Secretary of State. In parallel with the forum, the Commission would continue to develop the Bill of Rights process through focussed seminars, discussion papers, comparative research and liaison with international organisations. In our view, it is vital to ensure that the final advice on a Bill of Rights presented to the Secretary of State by the Commission is credible, and grounded in community and political participation. A new consultative structure is necessary to provide a constructive and inclusive means of reaching agreement on proposals for a Bill of Rights. We recommend that this should consist of an independent chair, a wide membership involving representatives of the political parties and civil society, an independent secretariat, and adequate funding. The Commission will need to receive recommendations from this body, and will have to decide how far to transmit them to the Secretary of State in its final advice. The Commission must be seen to be acting independently when submitting its advice to the Secretary of State, and it should, therefore, remain at arms-length from these discussions.

69   Cm 3883, paragraph 4 of the Human Rights section of the Agreement Back

70   Section 69(7) Back

71   See Appendix 14, Ev 72 and Appendix 6, Ev 52 Back

72   Committee on the Administration of Justice (CAJ), Submission to the NIHRC on the Draft Bill of Rights, January 2002; Appendix 5, Ev 51 and BIRW Response to the Draft Bill of Rights for Northern Ireland, November 2001 Back

73   See Appendix 7, Ev 54 and Appendix 13, Ev 67 Back

74   Q 76 Back

75   See, for example, Tenth Report of Session 2002-03, The UN Convention on the Rights of the Child, HL 117/HC 81. Back

76   Q 42 Back

77   See Appendix 5, Ev 45; Appendix 8, Ev 54 and Appendix 15, Ev 73 Back

78   See Appendix 4, Ev 41 Back

79   See Appendix 13, Ev 68 Back

80   See Appendix 9, Ev 60 and Appendix 6, Ev 52 Back

81   Q 38. See also the Commission's Strategic Plan for 2002-2006, p 9. Back

82   See Appendix 2, Ev 26. See also Appendix 4, Ev 41, Appendix 18, Ev 81 and Appendix 5, Ev 51 Back

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