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
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
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
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 linesthird 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 doingI hope that what we are doingcan
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
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
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
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