Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 81-99)


28 JANUARY 2008

  Q81 Chairman: Good afternoon, everybody. This is another session of our evidence in public on our inquiry into the British Bill of Rights. Can I welcome Professor Chris Sidoti and Professor Brice Dickson to the inquiry. Do you want to make any opening remarks or shall we go straight into the questions?

  Professor Dickson: I have no opening remarks, Chairman.

  Professor Sidoti: Similarly, Chairman, I am happy to go straight to the questions.

  Q82  Chairman: As a starting point, Professor Dickson, perhaps you could tell us what you think are the main lessons that can be learned from Northern Ireland's experience of developing a Bill of Rights.

  Professor Dickson: The key lesson I would say, Chairman, is the importance of being inclusive in the consultation process. The experience of the Human Rights Commission to date has been that getting out and about in Northern Ireland and talking to a very wide variety of groups and people, including groups and people who are otherwise difficult to reach, is really crucial because that way you get a real sense of what people on the ground want. Obviously, you have to talk to political representatives and NGOs as well but talking to ordinary people, so-called, on the ground has been immensely influential. As well as getting their initial suggestions as to what should be in a Bill of Rights, going back to them with practical proposals as to what should be in a Bill of Rights has also been very important. Using all of that as firm evidence, as was the case in Northern Ireland where there is a real demand for a Bill of Rights, helps to put pressure on the politicians and makes it more difficult for the politicians to gainsay the need for a Bill of Rights. It is unfortunate, I think, that, up to now anyway, the politicians have not been able to reach consensus on what should be in a Bill of Rights for Northern Ireland, but getting the views of Joe and Mary Public has, I think, been extremely important.

  Q83  Chairman: Do you think it is ever possible to get consensus on these issues, bearing in mind that there can be quite different positions?

  Professor Dickson: About consensus among the politicians, do you mean?

  Q84  Chairman: Yes.

  Professor Dickson: Yes, I am hopeful, and Chris will be more able to talk about that than I am because he is talking to the local politicians these days in a way that I am not. Yes, given the impetus of the formation of the new Assembly in Northern Ireland last May and given the apparent desire on the part of the main parties there to make matters work in Northern Ireland, I think it is distinctly possible that consensus on a Bill of Rights can be reached.

  Q85  Chairman: Chris, do you think that is right?

  Professor Sidoti: I think it is right but it is a challenge. It is certainly a great challenge in any society, more perhaps challenging for you, I suspect, than it may be for the politicians in Northern Ireland. Most Bills of Rights are developed following periods of some kind of either national trauma or national re-establishment. It is fairly rare to have the kind of process that you are engaged in where a society stops and looks and says, "Well, this is what we see our future as being", unless pushed to that by some external event. I think that in Northern Ireland there are external events. Whether we can bring everybody to a common position at the end, of course, is the great challenge that we face, but at least we have that impetus and I think what is happening here at the Westminster level is very good, that, even without that kind of impetus, you are able to stop and look and discuss the future.

  Q86  Chairman: In Northern Ireland has there been any consideration of social and economic rights?

  Professor Sidoti: There certainly has.

  Q87  Chairman: Is there consensus emerging around that?

  Professor Sidoti: Not at this stage but it may come. From my perspective I think that, if you are talking about a Bill of Rights which is an accurate reflection of where human rights law is internationally now, you need to talk about economic and social rights. It is a critical part of the broad perspective of international human rights law. That is not to jump to any conclusions about the way in which economic, social and cultural rights can be incorporated. We have seen many models of that and I must say I get exceptionally irritated at the ignorance of those who say that the only way to recognise economic and social rights is to hand over power to the judges. That is not the way things necessarily need to work. I use the word "ignorance" quite deliberately because it is ignorance about the nature of Bills of Rights. In Northern Ireland we see some of that ignorance, particularly at the level of the media where you would expect it, but unfortunately sometimes from some of the political leaders as well who do not stop and look at what international practice is.

  Q88  Chairman: And horizontal rights?

  Professor Sidoti: Human rights in international law are primarily responsibilities of governments, that is, individuals, except in the area of international criminal law (which is expanding), are not normally held to account in human rights terms. But simply because internationally it is the responsibility of governments, nationally it is appropriate to look at the ways in which individuals are held responsible.

  Q89  Chairman: Is this repeated in Northern Ireland?

  Professor Sidoti: It certainly is one of the issues in Northern Ireland about what the scope of the Bill of Rights may be.

  Q90  Chairman: We have three questions along those lines—third generation rights and environmental and social rights. Do those reach the discussions?

  Professor Sidoti: The environmental issue is coming up. We have in our Forum a number of working groups, one of which is dealing with economic and social rights, and that group is discussing questions of environmental rights.

  Professor Dickson: All the evidence from opinion polls in Northern Ireland, three of which were conducted by the Human Rights Commission in 1999, 2002 and 2004, showed that there is a great deal of support, 70 to 80 per cent, across both communities for the protection of economic and social rights and third generation rights.

  Q91  John Austin: Professor Sidoti, you accused those who argued that inclusion of economic and social rights meant handing things over to the judges of ignorance. When we were in South Africa there were some who made that suggestion, not from a position of ignorance but from the reality of some specific cases. It may be that they had a vested interest but they were saying that decisions were in fact being taken by judges which were overtly political decisions.

  Professor Sidoti: I accept what you say in terms of the description of what happens there but I would not say it was necessarily overtly political. It depends upon the drafting of the law. That would be my response. If the law says that judges have a role then they do have a role. If the law provides for other processes, one process can be, for example, that a Bill of Rights recognises the fact that there are binding international obligations in relation to a particular right and places the responsibility on the parliament or parliamentary committees to ensure implementation of the right. In many areas like this a Bill of Rights has much more to do with the relationship between the executive and the legislature than the relationship between the legislature and the judiciary.

  Q92  Chairman: If we were to look at Northern Ireland's process do you think that could be used as a model for the way in which we should go about developing the British Bill of Rights?

  Professor Sidoti: I think that each model is different, and so I would not answer that question with either a yes or a no. It depends upon the particular circumstances. In Northern Ireland the process has involved an initial starting point in the Agreement of 1998, and then a very broad public consultation undertaken by the Commission when Brice was Chief Commissioner in Northern Ireland. The process that we are engaged now in our Forum is much more a political process, attempting to negotiate common positions. I certainly see each of those items as important. It is essential that there be a process of public consultation and public engagement for precisely the reasons that Brice has outlined. Whether that should be undertaken here by the new Commission or whether it should be undertaken by the Government or a parliamentary committee I think is a very open question. Certainly the ingredients of the approach taken in Northern Ireland need to be part of an approach taken here through the Westminster process. That should involve consultation, it must involve negotiation, it must involve public documents where people have an opportunity to respond, and it must involve as well a process of sheer information provision and awareness raising. Bills of Rights and the way in which they work are very new in common law systems in many cases, including in my own system in Australia. Canada and India, as common law countries, have much longer traditions of dealing with human rights in these ways, but in some of our common law systems a process of public information and awareness raising is an essential part of the process of considering a Bill of Rights.

  Q93  Chairman: Should we wait for you to finish before we start?

  Professor Sidoti: I think that what we are doing—I hope that what we are doing—can be very helpful for your process. I think though that there is no necessity in terms of one waiting for the other. We are hearing from some in Northern Ireland who say that we should put our process on hold until you have finished yours. I think we are talking here about parallel processes. The Northern Ireland process began a long time ago, in 1998, and I certainly do not think that Northern Ireland can afford to have its process delayed until the process has been considered here through this committee and elsewhere and is completed. Of necessity, given that the process here has started later, our process will have gone a long way while here there is first the Green Paper preparation through which the consultation takes part. So I would hope that simply because of different kinds of timetables what we are doing in Northern Ireland will be of great assistance to what is being done elsewhere in the United Kingdom.

  Q94  Chairman: Brice, do you want to come in?

  Professor Dickson: I would just agree with what Chris has said and add that what is true, I think, is that the current talk of a British Bill of Rights is at the very least complicating the process in Northern Ireland, and I gather that there is now talk of a UK Bill of Rights as opposed to a British Bill of Rights, and you can appreciate, I imagine, that the use of those terms is itself a complicating factor in Northern Ireland where there are certain politicians who identify with the British way of doing things.

  Q95  Earl of Onslow: This was exactly the point I was going to raise. You cannot surely in one country have different Bills of Rights for different parts of that country.

  Professor Sidoti: Why not? My country does.

  Q96  Earl of Onslow: I am afraid, sir, that I think you would then have a competition between the Victoria Bill of Rights and the New South Wales Bill of Rights. Are they the same document?

  Professor Sidoti: No, they are different documents. New South Wales at this point does not have one but Victoria does and the Australian Capital Territory does and Western Australia and Tasmania.

  Q97  Earl of Onslow: But there is not an Australian Bill of Rights?

  Professor Sidoti: No, but that is on the agenda now for our new Government.

  Q98  Earl of Onslow: But then if you do have an Australian Bill of Rights you cannot, I would have thought, by its very nature, have a Canberra one, a Melbourne one, a New South Wales one. After all, a Bill of Rights applies to all the states in the United States. The constitutional amendments which form the Bill of Rights apply to all the states in the United States.

  Professor Sidoti: Again, like any law, it depends upon what the law says. In Australia we have a federal system where responsibilities are different at different levels and so it is appropriate to have different laws. You are moving into a system of devolution where you have different laws already applying in different parts of the United Kingdom.

  Q99  Earl of Onslow: So are you telling me a Bill of Rights is a constitutional document; it is a document which at least says, or should say, "You will have trial by jury, et cetera"? You cannot have, at least in my view, different Bills of Rights in different territories.

  Professor Sidoti: You could.

  Earl of Onslow: Well, you could, but it would—

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