2. Memorandum from the Northern Ireland
Human Rights Commission (NIHRC)
QUESTIONS FROM THE JOINT PARLIAMENTARY COMMITTEE
How does the Human Rights Commission see the Bill
of Rights process developing from now until submission of the
final draft to the Secretary of State?
The Commission held a consultative meeting on
this matter, attended by over 100 people, on 2 December 2002.
Commissioners and staff then met on 6 and 7 December to consider
what was said at that event and to discuss how best to proceed
with the development of the Bill of Rights process. At the end
of that discussion the Commissioners decided that a letter should
be sent to the political parties in Northern Ireland explaining
how the Commission intended to proceed and that a further letter
(not as detailed concerning the prospective engagement with political
parties) should be sent to others who attended the event on 2
December or who were invited to it. Once the political parties,
in particular, have had a chance to respond to the suggestions
made in the letter, the Commission will issue a press statement
giving notice of its intentions.
For the benefit of the Committee, the main part
of the letter sent to the political parties on 11 December is
set out below:
"Taking into account the points made at
the Malone House meeting, we have decided to proceed with our
work on a Bill of Rights in the following manner.
Commissioners will continue to meet
to discuss particular types of issues dealt with in submissions
already made to the Commission in response to its consultation
document Making a Bill of Rights for Northern Ireland.
Early in the New Year the Commission
will publish a summary of the hundreds of submissions made to
the Commission to date.
Building on its commitment to engage
with political parties, the Commission will encourage the parties
in Northern Ireland to set up a comprehensive roundtable process
on a Bill of Rights and will itself participate in that process.
We would see such a process operating within agreed parametersstill
to be discussed in more detailwhich might include the following:
it would be open to all political
parties in Northern Ireland;
it would make acceptable provision
for participation by others, including non-governmental organisations,
churches, trade unions and the Commission itself;
it would be underpinned by the
provision of appropriate resources;
it would be chaired by an agreed
it would operate in accordance
with agreed rules of procedures; and
the Commission would take receipt
of the conclusions of the process in advance of giving its final
advice to the Secretary of State.
The Commission will hold a series
of information and focussed discussion sessions on the "key"
issues listed at the event on 2 December (set out in the Annex
to this letter). The objectives of these sessions will be to:
help build capacity to debate
the key issues among different sectors of society in Northern
provide accessible information
about the pros and cons of some possible approaches to the key
bring people together for debate;
inform Commissioners as to how
people and groups in Northern Ireland are thinking about these
The Commission will seek, and disseminate,
the views and experience of experts from other countries and international
To facilitate the information and
discussion sessions mentioned above the Commission will produce
various papers which will explain and explore the issues at stake
in an accessible way. These should help participants in the sessions
to discuss the issues in an informed and respectful manner.
The Commission would very much welcome your party's
views on how we are proposing to proceed and would like to meet
with you to discuss the matter. It would be particularly helpful
to hear back from you before 13 January 2003, the date of our
next Commission meeting."
How, in the Commission's view, should the process
be taken forward following its submission of its final Draft Bill
of Rights to the Secretary of State?
The Commission hopes that, after it has submitted
its final Draft Bill of Rights to the Secretary of State, the
UK government will take forward the process quickly and supportively.
It is also the Commission's hope that it will be able to submit
to the Secretary of State a Draft Bill of Rights which already
has a broad measure of support amongst the political parties in
Northern Ireland as well as amongst many elements of civic society
there, including the voluntary and community sectors of society.
The Commission hopes that such a broadly backed Draft Bill of
Rights will allow the UK government to proceed with its enactment
almost immediately. We do not think it will be necessary for the
government to delay the process further by publishing, for example,
a White Paper on the topic. The Commission's own consultation
process on the Bill of Rights, as the government itself has acknowledged,
has already been very deep and wide.
It would be helpful if the Draft Bill of Rights
could be considered in detail by the Northern Ireland Assembly
prior to any debates in the Westminster Parliament. This is already
the practice regarding other Westminster Bills and proposed Orders
in Council intended to apply only in Northern Ireland. Assembly
support for the Bill of Rights will, we hope, make its passage
through Westminster much easier.
Following submission of its final advice, how
does the Human Rights Commission see its continuing role in relation
to the Bill of Rights?
The Human Rights Commission envisages having
to continue to lobby (locally, nationally and internationally)
for the acceptance and enactment of its final advice. It will
also have to continue to publicise its advice within Northern
Ireland and to seek to garner local support for the acceptance
and implementation of the advice. If and when a Bill of Rights
is eventually enacted the Commission sees itself as the body best
placed to monitor its operation.
How does the Commission respond to criticism of
the draft Bill of Rights, that the provisions on economic and
social rights do not provide sufficiently substantial protection?
The inclusion and formulation of protection
for social and economic rights has been one of the most difficult
issues for the Commission. The Commission has received a number
of submissions to the effect that the protection of social and
economic rights in Northern Ireland as opposed to the whole of
the United Kingdom does not fall easily within the criteria of
the "particular circumstances of Northern Ireland".
On the other hand it is clear from many other submissions and
from the Commission's public opinion surveys that most people
in Northern Ireland regard the protection of rights to education,
health and housing as an essential part of an effective Bill of
The formulation which the Commission included
in its consultation document is an attempt to reflect the current
international standards which deal with most social and economic
rights on a programmatic basis, to be achieved progressively within
the available resources, while taking account of the particular
circumstance that the allocation of resources on most social and
economic issues in Northern Ireland is a devolved power. Some
Commissioners did want to go further than this draft and there
were some healthy debates about the relative pros and cons of
different positions. But there does seem to be consensus within
the Commission that the consultation document's formulation does
not fall short of existing international standards, notably those
in the International Covenant on Economic, Social and Cultural
Rights, because it would impose an enforceable obligation on the
government and public bodies in Northern Ireland to develop and
implement programmes for the delivery of specific economic and
social rights, as well as avoiding any discrimination in so doing.
The Commission's consultation document proposes
that the non-ECHR rights it contains may be limited "only
to the extent that the limitation is prescribed by law, reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account all relevant
factors". This is based almost exactly on section 36 of South
Africa's Bill of Rights, widely acknowledged to be the best in
the world. Recent decisions by South Africa's Constitutional Court
(the Grootboom case on the right to housing and the Nevaripene
case on the right to health care) show that the limitation
clause does not prevent the judges sending clear messages to the
Government as to how public money should be spent to protect social
and economic rights. That is precisely the kind of judicial enforcement
which the NIHRC's draft Bill of Rights would allow for.
The Commission is satisfied that its initial
proposals have assisted in clarifying the debate on this important
issue. The Commission has identified it as one of the key issues
on which further detailed discussion among the political parties
and key constituencies will be essential to arrive at a sufficient
degree of consensus to ensure that an effective provision is included
in the Bill. The eventual outcome of the debate will of course
depend, here as in other matters, on the attitude of the major
political parties in Northern Ireland and of the British and Irish
How important are effective enforcement mechanisms
to the Bill of Rights? Would there be any benefit in a Bill of
Rights that was declaratory only?
The Human Rights Commission believes that effective
enforcement mechanisms are crucial for the Bill of Rights. Commissioners
have already agreed that the Bill of Rights it recommends should
have at least the same status as the Human Rights Act 1998. In
other words, we envisage the Bill of Rights being a "superior"
law which would permit judges and other enforcement agencies to
disregard other laws (unless they were in Acts of the Westminster
Parliament) that are incompatible with the Bill of Rights. The
Commission has still to come to a final view on whether the enforcement
mechanisms at present contained in the Human Rights Act 1998if
transplanted to the Bill of Rights and modified accordinglywould
make the Bill of Rights effective.
The Commission sees no benefit in having a Bill
of Rights that was declaratory only. That is not the kind of Bill
of Rights envisaged by the Belfast (Good Friday) Agreement.
Are there any potential conflicts between a Northern
Ireland Bill of Rights and the Human Rights Act? How might any
such difficulties be resolved?
The Human Rights Commission has so far striven
hard to ensure that there is no conflict between its advice on
a Northern Ireland Bill of Rights and the Human Rights Act. The
Belfast (Good Friday) Agreement presupposes that there will be
no such conflict because it talks of the Bill of Rights comprising
the rights in the European Convention on Human Rights plus the
supplementary rights identified by the Commission. The Commission
has been proceeding on the basis that there is nothing in the
European Convention which prevents a state within the Council
of Europe from protecting rights to a greater extent than that
currently required by the Convention. This is already the case
in Northern Ireland as regards the right not to be discriminated
against on grounds of religious belief or political opinion when
one is applying for employment.
If on occasions the Northern Ireland Bill of
Rights strikes a slightly different balance between individual
rights and the rights of society from that struck by the European
Convention as interpreted by the European Court, this is very
likely to be within the "margin of appreciation" accorded
to member states of the Council of Europe.
Has the Commission considered the influence or
impact which a Northern Ireland Bill of Rights might have on the
law, practice and culture of the UK as a whole?
The Northern Ireland context is rather different
from that applying elsewhere in the UK, even though there are
some shared characteristics. The different political allegiances
of the two main communities here is the feature which affects
virtually everything. The Commission would therefore be acting
outside its brief if it allowed the potential influence of a Northern
Ireland Bill of Rights on the rest of the UK (or indeed on the
Republic of Ireland) to affect unduly the advice it gives to the
Secretary of State for Northern Ireland.
Nevertheless the Human Rights Commission is
of course aware of the potential influence or impact which a Northern
Ireland Bill of Rights might have on the UK as a whole. Although
the Northern Ireland Bill of Rights will reflect the particular
circumstances of Northern Ireland, some of those circumstances
are not unique to Northern Ireland but are shared by other parts
of the UK, so there is therefore a good argument for protecting
some of the rights in question throughout the UK. In so far as
the Bill of Rights will draw upon and give effect in Northern
Ireland to international obligations which the UK government has
already signed up to, there is even greater justification for
enacting broadly similar legislation for the other UK jurisdictions,
taking account of their particular circumstances.
Are there any difficulties with the potential
application of differential standards in Northern Ireland and
the rest of the UK?
The people of Northern Ireland live within a
separate legal system from those of England and Wales or Scotland.
The laws in the separate jurisdictions are often different. This
has long been the case, for example, as regards discrimination
law, anti-terrorism law and abortion law. At times the House of
Lords, as the supreme court for the UK, has had to adjudicate
in cases originating in Northern Ireland even though the law at
issue is different from that in other parts of the UK. There has
to date been no difficulty in according different rights to the
people of Northern Ireland (whether greater or lesser than those
accorded to people elsewhere in the UK) provided that the level
of protection does not fall below that required by the European
10 January 2003