13. Memorandum from Professor Christopher
1. This Memorandum sets out some considerations
relevant to the inquiry by the Joint Committee on Human Rights
into the work of the Northern Ireland Human Rights Commission.
I understand that the inquiry will consider the operation and
effectiveness of the Commission, its functions, powers and resources.
This memorandum concentrates on the particular issue of the Commission's
development of a Northern Ireland Bill of Rights.
2. The Northern Ireland Human Rights Consultation
Paper on a Bill of Rights for Northern Ireland ("the Document")
has, in some ways, already achieved a considerable amount. The
publication of the document (in September 2001) led, over the
ensuing months, to an increasingly focused debate over this vexed
issue. It has led, in particular, to growing participation by
party politicians in discussing the way forward.
3. There is now, however, a significant
degree of consensus in Northern Ireland that the NIHRC's document
is not the way forward. This is not surprising. The Document is
the product of a radically divided Northern Ireland Human Rights
Commission. On many issues of central importance, the Commission
has, as is clear from the text, simply agreed to differ at this
stage of the discussion.
4. Documents of the kind that the Commission
was mandated to produce need to be visionary, technically authoritative,
politically astute, and comprehensive. The Commission's document
is, unfortunately, none of these. In large measure, the chorus
of criticism to which the document has been subjected is justified.
It is sloppy, rushed, internally inconsistent, technically unconvincing,
and lacking any coherent vision.
5. One of the reasons why the Commission
appears to be so radically fractured, and the Document so inadequate
is because its discussion on a future Northern Ireland Bill of
Rights appears from the Document to have been woefully under-theorized
in the post-Good Friday Agreement context. Before agreement on
the detail of a Bill of Rights is likely to be forthcoming, it
is first necessary to find an accommodation on much deeper issues
that lie behind these details. The Commission has failed to achieve
6. I would like to make it clear at the
outset the purpose of my Evidence. It is to assist the process
of reaching a consensus by identifying the crucial issues that
must be faced. I will not attempt to express my own views on these
issues at this time because I think that would pre-empt the discussion
that must be had on these questions. All of the issues identified
below seem to raise genuine problems on which reasonable people
can disagree. In order to move on, however, these reasonable disagreements
need to be addressed and an accommodation found.
7. I will begin with some areas of controversy
that appear apparently rather technical, before turing to what
appear to me to be the deeper issues underlying these apparently
technical questions. I shall consider these issues very briefly
indeed. A more detailed, academic discussion may be found in Christopher
McCrudden, "Not the Way Forward: Some Comments on the Northern
Ireland Human Rights Commission's Consultation Document On A Bill
of Rights for Northern Ireland", 52 Northern Ireland Legal
Quarterly 372 (2001), a copy of which is attached.
Relationship between the Bill of Rights and existing
8. The question of what a future Northern
Ireland Bill of Rights should include, indeed the question of
whether there should be an additional Bill of Rights at all, depends
significantly on what we think of the existing legal and political
protections, comprising the Human Rights Act 1998, the Northern
Ireland Act 1998, and the other major statutory rights legislation.
However, in important respects, we do not really know what to
make of some of these existing protections because they are relatively
young and substantially untested. The NIHRC was in the position
of considering options, and shaping the agenda for future debate,
in a state of considerable uncertainty about the implications
of the existing protections. The NIHRC Document is internally
inconsistent on what to do about this issue: sometimes it considers
the adequacy of existing provisions; sometimes it does not, without
any apparent logic.
9. The Document's failure to consider adequately
the relationship between its proposals and existing equality legislation
is especially striking, particularly the Fair Employment and Treatment
Order 1998, and section 75 of the Northern Ireland Act 1998. With
regard to the former, there is a recommendation to remove the
exception for teachers in the legislation, without any apparent
indication that this has been extensively considered in the past
(not least by the NIHRC's predecessor body the Standing Advisory
Commission on Human Rights) and been rejected. In its discussion
of the extent to which it would be desirable to require Government
to take positive/affirmative action measures, as opposed to simply
permitting such measures, there is an entirely inadequate discussion
of the implication this would have for section 75 of the Northern
Ireland Act 1998, which has been interpreted (including by the
responsible Minister in the House of Commons) as requiring affirmative/positive
Legal status of the rights in a Northern Ireland
Bill of Rights
10. The legal status of the rights in a
Bill of Rights is unexplored in any depth. One option, not fully
explored in the paper, is that a Northern Ireland Bill of Rights
might be drafted simply as a political declaration. This will
also be an extremely important issue in the context of discussions
concerning the proposed all-Ireland charter of rights. If it is
to be accorded legal status, then we have to consider how, technically,
this is to be accomplished. Here the issue arises as to whether
the Bill of Rights should be regarded as equivalent to ordinary
legislation, or should be accorded a "constitutional"
status of some form. If constitutional, then should this be a
legal status, or a political status? The document gives the reader
little or any guidance on these difficult questions.
Role of the Courts
11. If the Bill of Rights is to be justifiable
in any major respects, within which forums should adjudication
take place? The Commission puts several options forward. The first
is to rely on the existing Northern Ireland courts. A second option
is to consider the possibility that there might be a new additional
court dealing with human rights questions specifically. But to
present these options without much more extensive consideration
of the modalities of each option is unhelpful.
12. If the ordinary courts are to be involved,
then the Commission might have been expected to consider more
specifically the approach that the courts should be encouraged
or required to take in human rights interpretation. How should
judges be selected for the Northern Ireland courts? Should there
be greater democratic participation in the selection of judges
for the Northern Ireland courts? The document adverts to some
of these issues, but none is explored in the degree of detail,
or in the degree of sophistication necessary to convince or even
to inform the public of the type of issues they need to consider
in responding to the "options" presented.
What does the Framework Convention on National
13. Considerable attention is paid in the
Document to the Council of Europe Framework Convention on National
Minorities, which both the United Kingdom and Ireland have signed
and ratified. One of the features of the Convention is the absence
of any definition of what constitutes a "national minority",
although there has been extensive discussion of the question in
international legal circles for some considerable time. The NIHRC
document, over the dissent of some members apparently, has interpreted
the Convention protection of "minorities" as encompassing
protection of communities of identity more generally, and views
this protection as therefore equally applicable to majority identity
communities as well as minority identity communities. Given the
emphasis accorded to the Convention in the Document, this interpretation
is of considerable importance. Yet it is also clearly controversial.
But no justification is given for this interpretation other than
a cryptic reference to "advice", which remains unpublished.
Where does the Bill of Rights fit in with human
rights policy more broadly?
14. The Document is filled with recommendations
that appear to be policy recommendations to government regarding
human rights policy broadly conceived. Nowhere, however, is the
issue of the relationship between a Bill of Rights and human rights
policy consistently or comprehensively explored. Irrespective
of whether the Bill of Rights is made justifiable, for example,
the question arises as to how far non-judicial mechanisms of implementation
should be adopted. How far should legislation be administratively
or legislatively screened or audited for compliance with the Bill
or Rights? "Mainstreaming" is already accepted as a
central strategy for achieving equality in Northern Ireland, however
much in practice it leaves much to be desired. How far should
similar proactive obligations be developed more broadly in the
human rights context, and how?
Protection and enforcement of "social, economic
and cultural" rights
15. How far should a Northern Ireland Bill
or Rights bring political, civil, economic, social, and cultural
rights together into one document? It is clear that some within
the Commission were deeply uneasy about including many of what
might be called "solidarity" rights in the Bill of Rights,
and uneasy compromises to meet these concerns are evident in the
texts of these provisions. The Commission proposed a provision
that, essentially, proceduralises socio-economic rights to a very
significant extent. Public bodies are "to allocate resources
in a proportionate and non-discriminatory manner." Legal
remedies "shall protect the due process and equality rights
of all citizens in respect of social and economic rights".
In attempting to respond to the debate over the status of legal
enforcement of socio-economic rights, however, the Commission
has blundered into another highly contentious issue. Should we
think of socio-economic rights as delivering substantive justice,
or procedural justice? To view them as largely encapsulating the
latter is, to say the least, debatable yet no debate on this is
apparent in the Document.
16. These specific, often apparently rather
technical, debates mask a deeper set of issues, in my view. What
is the meaning of the Belfast Agreement? What role do we envisage
"rights" as essentially there to support free-market
liberalism, or underpin the European social model in Northern
Ireland? Do we think of "rights" primarily in the context
of a notion of Northern Ireland citizenship and civic society,
with "rights" playing a "constitutional" role
in furthering political integration and constitutional stability?
This part of the paper begins to explore some of these deeper
questions, again rather briefly.
The nature of the Northern Ireland conflict and
"the particular circumstances of Northern Ireland"
17. The Commission was asked, "to consult
and to advise on the scope for defining, in Westminster legislation,
rights supplementary to those in the European Convention on Human
Rights, to reflect the particular circumstances of Northern Ireland,
drawing as appropriate on international instruments and experience"
(emphasis added). The requirement "to reflect the particular
circumstances of Northern Ireland" is clearly of considerable
significance. What does it mean? The Commission's approach is,
to say the least, underdeveloped. At the core of the issue is
the deeply significant question of what we think the Northern
Ireland conflict is about. This has been a subject of very significant
debate over many years. Little of that debate appears to have
been drawn on by the Commission, for reasons that are entirely
unclear. We cannot adequately consider what "the particular
circumstances of Northern Ireland" properly involve without
taking a view on this deeply controversial issue. As importantly,
the Commission's failure to convince on this issue leaves it open
to the criticism that its proposals represent more in the nature
of political opportunism than considered judgment as to what should
be included in the Bill of Rights.
The Belfast Agreement and the Bill of Rights?
18. Although the Bill of Rights debate predated
the Belfast Agreement, the current discussions clearly emerge
from the Agreement. The NIHRC, indeed, derives its origin and
its legitimacy from the Agreement. But there is a fundamental
disagreement as to what the implications of this are for the Bill
of Rights debate. Should we see the debate about the role of the
Bill of Rights as part of an essentially contested constitutional
discussion? In part, the manifestation of this disagreement relates
to the question of how far the Bill of Rights should be regarded
as further underpinning aspects of the Agreement, or supplementing
(whilst remaining consistent) with the Agreement, or rebalancing
the Agreement (without undermining it).
19. This debate is a complicated and multi-faceted
one, but one that is critical to the likelihood of a successful
Bill of Rights emerging. The Commission should have considered
these issues much more extensively, and given significantly more
guidance on how the public should address them.
Meaning of equality and its relationship to social-economic
rights, and identity
20. Central to much of the discussion in
the Document is an underlying concern with equality, but at no
stage is the concept of equality explored in other than a technical
legal way. In particular, the relationship between equality, identity,
and socio-economic rights is never adequately addressed.
21. We can begin with the issue of identity.
Theories of justice have developed, based on the importance of
the cultural, political and legal recognition of the choices of
social groups, viewing the failure to accord due importance to
such differing identities as a form of oppression and inequality.
This reflected and, to some extent stimulated, what has been called
"identity politics", encompassing attempts to secure
the political recognition and accommodation (if not celebration)
of ethnic, religious, sexual, and other diversity. Bills of Rights
are tailor-made for such politics and one of the ways in which
this politics has manifested itself legally is by seeking to expand
the grounds on which discrimination is prohibited. This model
of equality as recognition is partially incorporated in the Document,
although not identified as such.
22. Seen from another perspective, however,
equality is not primarily about the protection of identity groups
but about securing greater economic justice between groups distinguished
by access to goods. This group justice rationale has been seen
by some as underpinning the development and interpretation of
Northern Ireland equality law, given the emphasis placed in the
Fair Employment and Treatment Order 1998 on indirect discrimination
and affirmative action, which depend to some extent on group classification,
and arguably adopt a group-justice rationale more generally, to
the extent that, for example, statistics on and the monitoring
of group behaviour and status is seen as central to the operational
effectiveness of this model.
23. The Commission at various points appears
to adopt both conceptions of equality. However, there is no apparent
recognition that in some conflicts these two conceptions of equality
may conflict, hence (in part) the Commission's confusion over
the interpretation of the Framework Convention on National Minorities.
Is the equality that the Commission is primarily concerned with
one that stresses concern with more equal distribution of goods
and opportunities to economically disadvantaged groups, or is
it one based on the cultural and symbolic recognition of differing
identities. Does a concern with recognition, in other words, displace
a concern with economic redistribution in the Commission's agenda?
We are given no guidance on this issue.
The Bill of Rights and the European social model?
24. There is another dimension to the debate
about the future of the Bill of Rights, which also arises out
of debates about the meaning of the Agreement, but goes beyond
that. One of the most hotly contested issues in European political
debate is the future of the "European social model".
The debate about the relative balance that is appropriate between
social protection and competitiveness, and the ability to sustain
substantial social spending in the context of an increasingly
globalized economic system, are issues that go to the heart of
European political controversy (and indeed globalization more
broadly). The debate about the future of the Bill of Rights is,
in part, bound up with this broader debate. On one reading, the
Agreement appears to adopt the position that there is a strong
connection between rights and the creation of a stable, prosperous
Northern Ireland. So what should be the appropriate relationship
between rights and competitiveness, and between rights and social
policies generally in Northern Ireland?
25. The issue then becomes the extraordinarily
difficult and contentious one of whether solidarity and equality
rights are foundational of economic success, or a drag on it.
In this unresolved debate, the Bill of Rights becomes a powerful
symbol for both sides. On the one hand, some will see a Bill of
Rights espousal of equality and solidarity rights as a move by
those who oppose the development of a liberal, market driven model
of economic growth and development. For others, the Bill of Rights
inclusion of these rights symbolises the acceptance within a foundational
document of Northern Ireland of the view that such rights provide
the basis for economic growth and development. Higher social protection,
from this perspective, may trigger higher productivity. Without
it Northern Ireland is on the road to becoming a low skill labour
market unable to compete with the sweat-shops of the third-world,
and unable to compete with the high skill economies. What position
does the Commission take on these issues? They are clearly central
to its consideration of the role of socio-economic rights but
they do not feature in the Commission's Document.
Rights as foundational to Northern Ireland political
26. Some see the relationship between the
Bill of Rights and political debate and discussion quite negatively,
seeing it as containing a "wish list" that, if accepted
at anything other than as purely rhetorical would withdraw a considerable
variety of issues from political debate. Some would argue also
that it is inappropriate to allow courts to give definitive answers
to controversial political questions: instead, it should be left
to the Assembly to make such contentious decisions. Indeed, this
issue has already surfaced within existing human rights jurisprudence
under the Human Rights Act.
27. On the other hand, rights, enforceable
rights, rights that are secured, are thought by others to be necessary,
though not sufficient, to enable participation in the political
process to take place on an equal basis. For some proponents,
the Bill of Rights should help to guarantee those rights that
enable political participation to take place on a platform of
security, equality, and dignity. They would regard these rights
not as a "wish list" of everything that one would like
to see politics deliver without having to engage in politicsthe
Bill of Rights cannot replace politics, it is not anti-political.
Such a Bill of Rights, and the rights it contains, is one which
meshes with, while at the same time transcending, the Realpolitik
of Northern Ireland political dialogue.
28. This must be a central element in the
debate about a future Bill of Rights in Northern Ireland, and
the Commission should have offered some perspective on the relationship
between rights and democratic dialogue. Its failure to do so betrays
an inability to grapple with the deeper issues.
A FUTURE FOR
29. The question of where to go with the
Bill of Rights in the future is controversial because of disagreements
on a considerable range of different issues. There is disagreement
on how far existing provisions go. There is disagreement on the
place that a future Bill of Rights should have in the future of
Northern Ireland, and (indeed) what the future of Northern Ireland
should be. There is disagreement over the role of the Bill of
Rights in the development of the European social model. There
is disagreement over the role that rights serve in democratic
30. It has been my argument in this Evidence
that an informed understanding of the debate over the Bill of
Rights requires an understanding of, and ultimately a degree of
consensus on how each of these sets of disagreements should be
resolved, and that the Commission has signally failed to provide
the means to address these issues in a constructive way, let alone
generate any consensus on a way forward.
31. A fresh start is necessary. It seems
highly unlikely that the Commission will be able to achieve what
is necessary. The Commission should recognize that fact. In co-operation
with all the relevant political actors, an alternative process
for progressing the project must be devised. Without seeking to
set out a detailed mechanism, the bare bones of such a process
are clear: the establishment of a forum outside the Commission,
with participation from the Northern Ireland political parties
and civil society, under an independent chair, advised by an expert
secretariat. The results of any consensus that emerged over time
would then be presented by the NIHRC to the Secretary of State
as its advice, as envisaged by the Belfast Agreement.
15 November 2002
108 Professor of Human Rights Law, Oxford University;
Fellow, Lincoln College, Oxford. This Evidence is submitted in
a personal capacity and should not be taken as in any way representing
the views of the University or the College. Back
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