Joint Committee On Human Rights Written Evidence

13. Memorandum from Professor Christopher McCrudden[108]

  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 this.

  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.[109]


Relationship between the Bill of Rights and existing protections

  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 action.

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 Minorities require?

  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 participation?

  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 politics—the 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.


  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 government.

  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

109   Not printed. Back

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