Joint Committee on Human Rights Written Evidence


3.  Memorandum from British Irish Rights Watch

1. INTRODUCTION

  1.1 British Irish RIGHTS WATCH (BIRW) is an independent non-governmental organisation and registered charity that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position in the eventual outcome of the peace process.

  1.2 BIRW welcome this opportunity to respond to the Joint Committee on Human Rights' call for evidence on whether and why a British Bill of Rights is required. BIRW has been involved in the debates over the Northern Ireland Bill of Rights for many years. We believe there are lessons to be learned from the Northern Ireland experience which should inform the debate about a British Bill of Rights. In particular, Northern Ireland is in the midst of working on its own Bill of Rights at this very moment. It seems to us that there would be every advantage in waiting for the outcome of that process before embarking on a debate about a British Bill of Rights. However, given the anti-human rights sentiments that underlie much of the present debate in England, we feel that we should engage with at least some of the questions raised by the Joint Committee on Human Rights.

  1.3 Before doing so we think it might be helpful if we explain our thinking on the Northern Ireland Bill of Rights, and the lessons we believe must be drawn from Northern Ireland when considering the question of whether a British Bill of Rights is required.

  1.4 When it began to look as if a peace agreement was in the offing in Northern Ireland, BIRW argued for a UK-wide Bill of Rights and an Irish Bill of Rights that would mirror the provisions of the UK version. We believed that both the UK and Ireland would benefit from having a Bill of Rights that would expand on the rights conferred by the European Convention on Human Rights (the Convention), which at that time had not been incorporated into domestic law in either country. We also considered that, whatever the outcome of the peace process, one of the two main communities in Northern Ireland would find itself in a minority—either the Catholics would remain a minority in a Northern Ireland that stayed within the UK, or Protestants would find themselves in a minority within a united Ireland. If both the UK and Ireland had adopted Bills of Rights that gave identical rights, whoever was in the minority would enjoy the same protections either side of the border.

  1.5 As it turned out, both countries "incorporated" the Convention imperfectly. In Ireland, the Convention is subordinate to the Irish Constitution,[13] an elderly and in many ways outmoded instrument that is less liberal than the Convention in a number of its provisions. In the UK, the Human Rights Act 1998 omitted Article 13, which provides for an effective remedy for violations of Convention rights, and the rulings in McKerr[14] and Hurst[15] in the House of Lords mean that only violations that occurred after the Human Rights Act came into force in October 2000 are justiciable in the UK courts; violations occurring before that date must revert to the European Court of Human Rights.

  1.6 It also became apparent that, while the Labour government had brought in the Human Rights Act, it was only willing to contemplate a Bill of Rights in the Northern Ireland context. The government appeared to recognise that a Bill of Rights was a necessary confidence-building measure in the Northern Ireland peace process, but to regard a Bill of Rights elsewhere as an optional, even undesirable, extra.

  1.7 While BIRW were not happy with this state of affairs, we could see that with the development of regional devolution we were swimming against the tide, and we preferred to see a Bill of Rights in Northern Ireland than no Bill of Rights anywhere. We also hoped, and still hope, that a Northern Ireland Bill of Rights might provide a model for the rest of the UK and for Ireland and pave the way for the synchronisation of rights which we had originally advocated.

  1.8 Unfortunately, the history of the Bill of Rights debate in Northern Ireland to date has not been happy, although we are still hopeful that Northern Ireland will achieve an exemplary Bill of Rights and we are dedicated to trying to help to bring that about.

  1.9 The Good Friday Agreement provided not only for a Bill of Rights but also for a Human Rights Commission, again unique to Northern Ireland. While there was some cross-party support for a Bill of Rights, the Commission had no significant political champion, which was unfortunate because it was charged with advising the Secretary of State for Northern Ireland on the Bill of Rights. The government and the Northern Ireland Office were both remiss in depriving the Commission of the support it deserved and the resources it required to carry out its mandate. Although the Commission consulted very widely on a draft Bill of Rights, the draft it ultimately produced was unwieldy and not fit for purpose. It fatally sought to assert equal rights for all communities in Northern Ireland, failing to recognise that minorities need protection from the majority, and it failed to address contentious issues vital to the people of Northern Ireland, such as parades and abortion. A second draft corrected the error on minority rights, but what not much better then the first draft and by then the Commission, abetted by government indifference, has allowed the Bill of Rights to become so politicised that it became necessary to wait for the appointment of a new Commission, in terms of membership, and the establishment of a Bill of Rights Forum made up of representatives of the political parties and civil society, to try to rescue the project. That Forum is at work at the moment and there is yet real hope that their work will produce a Bill of Rights which will strengthen the rights of all communities in Northern Ireland.

  1.10 However, the unfortunate history of the Northern Ireland Bill of Rights process prior to the establishment of the Forum provides food for thought for anyone contemplating a Bill of Rights for Britain. Firstly, it tells us that the process is as important as the content. The process started well in Northern Ireland, but went wrong and hopefully has now been put right. Secondly, that process must have the wholehearted backing of government and must be adequately resourced. Thirdly, content is also important. A Bill of Rights cannot afford fundamental flaws such as that made in the first draft in Northern Ireland in relation to minority rights, itself a vital issue in Britain. Fourthly, if there is one overriding lesson to be drawn from experience in Northern Ireland, it is that political expediency is a poor foundation on which to build a Bill of Rights. Human rights are inevitably political, in that they recognise the rights of everyone, including the marginalised and the unpopular. It is, however, a grave mistake to allow human rights, and by extension Bills of Rights, to become politicised, as happened in Northern Ireland. A Bill of Rights is not about who gets what. It is about ensuring that fundamental human rights are conferred upon and are exercisable equally by everyone in society. Acts of extreme terrorism carried out around the world, including here in the UK, by some fundamentalist followers of Islam, have led to a potential crisis in the relationship between the Muslim community and other communities in Britain. The government's reaction, some would say over-reaction, to the threat of such terrorism has been to produce a plethora of repressive legislative measures. Now is not the time to ditch the European Convention on Human Rights and replace it with a "British" Bill of Rights designed, as former Home Secretary David Blunkett MP put it, to "reconcile security and liberty". On the other hand, now is a good time to think about designing a Bill of Rights that vindicates and strengthens the rights of all communities, enhancing our democracy and giving those who suffer discrimination legitimate tools to combat it, thus undermining the underlying causes that lead a small minority of people to espouse terrorist tactics. In that regard, Northern Ireland has much to teach us.

  1.11 One question that the Joint Committee on Human Rights has not asked, although it seems to us to be implicit in those questions it has posed, is whether or not the UK needs a written constitution. In our view, it does. As advocates of respect for international human rights law, we regard the "unwritten constitution" by which the United Kingdom is governed as an anachronism. The theory underpinning the unwritten constitution is that everything is permissible unless it is prohibited by law. The difficulty with such a theory is that in practice positive rights are never articulated or defined, while a body of legislation is developed which is focused on denying and/or limiting rights. It is unclear to us how an autonomous Bill of Rights, whether in Northern Ireland or in Britain, can function effectively without a written constitution to underpin it and a constitutional court to enforce it. All our comments on Bills of Rights should be viewed in this context.

  1.12 In the rest of this submission, we attempt to answer the questions posed by the Joint Committee on Human Rights.

2. IS A BRITISH BILL OF RIGHTS NEEDED?

Do you think there should be a British Bill of Rights? Please explain the reasons for your view

  2.1 Yes, but only if the process and the timing are right. The reason we say yes is that the Convention has been imperfectly incorporated into domestic law. The Human Rights Act does not provide for an effective remedy for human rights violations, and the judgments in McKerr and Hurst mean that there is a twin-track system for the vindication of people's human rights, depending on when the violation occurred. Also, the enforcement mechanisms in the Human Rights Act are weak.

  2.2 However, a Bill of Rights is not merely needed in order to remedy the problems created by the Human Rights Act and its interpretation by the courts. A Bill of Rights is required in order to restore the checks and balances that have been eroded by the torrent of counter-terrorism laws and practices, which have been adopted in the name of countering terrorism but have led to human rights abuses such as the tacit condoning of torture, periods in detention so lengthy as to amount to internment without trial, virtual house arrest, the exclusion of defendants from parts of their own trials, the erosion of the right to trial by jury, and so on.

  2.3 A Bill of Rights also offers an opportunity to confer positive rights on all communities which will help to promote democracy and to encourage tolerance and mutual understanding at a time when British society is more diverse than at any time in its history.

What would be the purpose of a British Bill of Rights?

  2.4 The purpose of a Bill of Rights would be to entrench those human rights which are either not included in or are imperfectly articulated by the European Convention on Human Rights.

What would a British Bill of Rights add to the protection for human rights already provided by the Human Rights Act?

  2.5 As we have already pointed out, the Human Rights Act is defective. A Bill of Rights could remedy these defects, could expand on those rights conferred by the Convention, and could help to promote mutual respect by ensuring that everyone in society has the same rights and can exercise them fully.

3. WHAT SHOULD BE IN A BRITISH BILL OF RIGHTS?

If there were to be a British Bill of Rights, what rights and freedoms should it contain?

Should it include any rights currently recognised as common law rights and freedoms, and if so which?

Should it include any rights and freedoms currently contained only in legislation, such as rights not to be discriminated against, of data protection and freedom of information, and if so which?

Should it include social and economic rights, such as health and education, and if so which?.

Should it include rights and freedoms currently contained in international treaties but not yet part of our law, and if so which?

Should it include rights and freedoms contained in other countries" bills of rights and if so which?

  3.1 We believe that the process by which a Bill of Rights is drawn up is as important as the end product, if a Bill of Rights is to be inclusive and command the widest possible ownership. Unless the Joint Committee on Human Rights is planning to draw up a draft Bill of Rights, then we do not think this consultation exercise is the right vehicle for answering this question. If a British Bill of Rights is to be under serious contemplation, then there needs to be a wide-ranging consultation exercise, preferably conducted by those with human rights expertise (which could, of course, include the Committee), but crucially with the backing of a commitment from government to implement and enforce the recommendations those experts would make concerning a Bill of Rights.

  3.2 Absent any such commitment from government, the Committee should be very careful not to allow this consultation exercise to become a substitute for an effective consultation process, should a British Bill of Rights become a reality.

  3.3 The Committee should also guard against providing a vehicle which might derail the Northern Ireland Bill of Rights process now that it is back on track. Those forces which were antipathetic to the Northern Ireland project could very well seize on a British Bill of Rights to try to sink the Northern Ireland process altogether. This is one of the reasons why we urge the Committee to strongly recommend waiting for the outcome of the Northern Ireland process before embarking on a British process.

  3.4 That said, in general terms, a Bill of Rights should include those human rights contained in international human rights instruments not yet incorporated into domestic law, and should also include economic, social and cultural rights, which have tended to be overshadowed by political and civil rights. A person who is living below the poverty line, or homeless, or lacking in education, for instance, is not equipped to take full advantage of the right to a fair trial, for example. Since much of the disadvantage in our society stems from social and economic disadvantage, and much of the discrimination stems from social and cultural inequalities, these are vital rights that cannot be overlooked in a Bill of Rights.

  3.5 Experience around the world has shown that Bills of Rights vary in the degree of their success in direct proportion to their ability to meet certain universally-applicable criteria. These can be summarised as follows:

    —  ownership;

    —  relevance;

    —  protection of minority rights;

    —  entrenchment;

    —  enforcement; and

    —  flexibility.

  3.6 First and foremost, a Bill of Rights must belong to as wide a cross-section of the public as possible, including in particular those who are marginalised in society and who by definition find it more difficult to access their rights.

  3.7 Secondly, a Bill of Rights must be relevant to the population it protects. It must reflect their concerns and must deal with issues that matter to them fairly and equally.

  3.8 Thirdly, it must protect the disadvantaged. Bills of Rights must recognise that minorities need protection from the majority, especially in a democracy, where minorities can always be outvoted.

  3.9 Fourthly, a Bill of Rights must be capable of delivering change on the ground, not just for groups of people but also for individuals. It must enjoy a statutory basis and must contain strong enforcement mechanisms.

  3.10 Lastly, a Bill of Rights must be capable of amendment to reflect changes for the better in society, while at the same time being protected from changes that are the result of political ideology or public panic.

  3.11 In Northern Ireland, the Bill of Rights is still work in progress. If the Forum is to succeed in its work, then it must produce a Bill of Rights which meets the six criteria set out above. The Forum is wrestling with these matters at this very moment. There seems to us to be every benefit in waiting to see what solutions they find before embarking on a similar process in Britain.

Should it include responsibilities as well as rights and freedoms, and if so, what sorts?

  3.12 Most human rights imply some kind of responsibility. For example, the right to freedom from discrimination implies that others must not exercise discrimination. However, the responsibility for enforcing rights lies with the state and with emanations of the state. A Bill of Rights should be just that, a bill which confers rights. It should not seek to lay responsibility for upholding human rights on individual citizens by creating a set of responsibilities. To do so would lead to endless litigation between individuals, with human rights becoming a battleground between competing and conflicting rights and responsibilities. Suppose, for example, a Bill of Rights were to impose a responsibility on everyone to respect each other's right to live peacefully. Such a responsibility might seem quite reasonable, on the face of it. However, it would open the door to legal disputes in which the courts would have to balance the right of one person to hold a party against the right of another to get a good night's sleep. Another citizen, exercising the same right, might litigate against an individual soldier fighting in Iraq on the grounds that the soldier, by invading another country, had deprived the litigant of the right to live peacefully by increasing the risk of terrorist attacks in the UK.

  3.13 As legislation designed to outlaw racial discrimination in this country has shown, it is possible to modify behaviour through legislation, but it is not possible to eradicate prejudice. In our view, the notions that with rights come responsibilities, or that rights have to be earned, are essentially questions of morality, which cannot be legislated for, however much one might agree with them. Rights, in our view, belong to everyone equally, even to those who abuse the rights of others, which is why every criminal is entitled to a defence and a fair trial. Such standards are the hallmark of a civilized democracy, and should not be diluted by importing into rights legislation some kind of trade-off with responsibilities.

4. WHAT SHOULD BE THE RELATIONSHIP WITH THE HUMAN RIGHTS ACT AND INTERNATIONAL HUMAN RIGHTS OBLIGATIONS?

What should be the relationship between a British Bill of Rights and the Human Rights Act?

  4.1 First and foremost, there should not be any question of a British Bill of Rights leading to the repeal of the Human Rights Act or the UK's opting out of the European Convention on Human Rights. A Bill of Rights should not be seen as a substitute for the Convention, but rather as an instrument that builds on the platform provided by the Convention to strengthen and augment human rights in this country. The message that the UK would send to the rest or Europe, and indeed the world, were it to abandon the Convention would be entirely negative and counter-productive.

  4.2 Having said that, some modifications might be needed to the Human Rights Act in order to give the Bill of Rights the force of law and to remedy the present defects in the Human Rights Act. As we have pointed out earlier, the lack of a written constitution and a constitutional court rob both the Human Rights Act and any Bill of Rights of the framework such instruments need if they are to be fully effective. Without a written constitution, the Human Rights Act and the Bill of Rights would simply have to operate alongside one another as best they can.

What should be the relationship between a British Bill of Rights and the ECHR/other international human rights treaties?

  4.3 Hopefully, a properly drafted Bill of Rights would give more powerful effect to the Convention than currently exists in domestic law and would also incorporate into domestic law other international human rights standards not currently included in our laws.

Are there any other relevant issues not covered by the above questions?

  4.4 As we have already pointed out, the whole debate about a Bill of Rights begs the question of the lack of a written constitution and a constitutional court.

5. WHAT SHOULD BE THE IMPACT OF A BRITISH BILL OF RIGHTS ON THE RELATIONSHIP BETWEEN THE EXECUTIVE, PARLIAMENT AND THE COURTS?

  5.1 One of the greatest weaknesses of the Human Rights Act lies in the area of enforceability. If a court is unable to interpret a piece of primary legislation so as to make it compatible with the Convention, it has no power to strike that legislation down, but may only declare it to be incompatible. It is then for Parliament to decide whether to repeal or amend the legislation. While this preserves the doctrine of parliamentary supremacy, it undermines the rule of law. Were there to be a written constitution and a constitutional court, then the rule of law would trump the intentions of a parliament which may have drafted a law prior to 1998 without having had any regard to the Convention.

  5.2 In our view, any British Bill of Rights should not be hampered by parliamentary supremacy, but should be fully enforceable through the courts. It should therefore be binding on the Executive and have the power to strike down incompatible legislation.

  5.3 Such a proposal may sound as if it would radically alter the relationship between the three arms of governance and give the courts supremacy in practice over the Executive and Parliament. However, since the Bill of Rights would be enacted by Parliament, Parliament would merely be delegating to the Courts the power to enforce legislation that Parliament had created, which is the position in relation to most other laws.

  5.4 A more radical, yet entirely desirable, effect, in our view, would be that a Bill of Rights would counter the huge power gap between the individual and the state. The great disadvantage of our unwritten constitution is that everything is permitted until it is forbidden, so that the emphasis swings towards forbidding rather then permitting or enabling. A Bill of Rights would grant the individual some ungainsayable rights that could not be taken away by powerful institutions against which the individual has no defence. This would give everyone a tangible stake in society, undermining those elements both within and without who would like to subvert those who are weak and disenfranchised by lack of realisable rights.

6. CONCLUSION

  6.1 BIRW gives a guarded welcome to a debate about a British Bill of Rights. However, we warn against the agenda that wants to use a Bill of Rights as an instrument for actually curtailing rights.

  6.2 We also emphasise that a debate about a Bill of Rights is already far advanced in Northern Ireland, which is well versed in dealing with terrorism and is no stranger to diversity. It is already possible to learn from their pioneering work what to avoid in designing a Bill of Rights. The Forum deserve the space they need to finish their work, and we in Britain could profit by waiting to see what positive lessons they may have for us in the not-too-distant future.

16 August 2007







13   The European Convention on Human Rights Act 2003 does not cover the Constitution. Back

14   In re McKerr [224] UKHL 12. Back

15   R (Hurst) v Commissioner of the Metropolitan Police of the Metropolis [2007] UKHL 13. Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2008
Prepared 10 August 2008