Joint Committee on Human Rights Minutes of Evidence


Examination of Witnesses (Questions 120-130)

PROFESSOR CHRIS SIDOTI AND PROFESSOR BRICE DICKSON

28 JANUARY 2008

  Q120  John Austin: Has it been useful to have the different political parties as well as the civil organisations together in one forum?

  Professor Sidoti: In Northern Ireland I think it is absolutely essential. This process has to move forward with the full engagement of those who are involved in the political parties. The extent to which we reach agreement is an open question. I cannot answer that at this particular point, but certainly it has required the engagement of all of the major political parties.

  Q121  Chairman: But has the delay involved in searching for that consensus been worthwhile? Does there not come a time when you can say you have got 80 per cent support but that you run the risk of that support waning away as the internal discussions keep going on and on and nothing comes out the other end?

  Professor Sidoti: I think that is absolutely correct.

  Q122  John Austin: Could it be that in returning to normalcy the appetite for the Bill has waned?

  Professor Sidoti: I think that is right too. There are different factors that give rise to momentum, and certainly the fact that the process basically ground to a halt in 2004 and was only revived late in 2007 has meant that the issues are no longer seen as being quite as urgent, but also that people are saying, "We have been at this for a hell of a long time. Is it going to go anywhere?". The heat is very much on our Forum at the moment to deliver, and my view right from the start has been that the people of Northern Ireland are entitled to a product from this process.

  Q123  Chairman: But if you cannot reach consensus what will you do?

  Professor Sidoti: Our commitment is to provide recommendations to the Northern Ireland Human Rights Commission that indicate the extent and nature of the support or opposition to any aspects of them. I am not necessarily expecting that a Forum that consists of 28 disparate members and a Chair will come to a unanimous view on every single issue. What is important, however, is that the extent of the support and the nature of the support and the nature of the opposition are quite transparent.

  Q124  Baroness Stern: Can we come back, if you do not mind, to something that was raised earlier, which was the relationship between what you are doing and the Bill of Rights for Northern Ireland and our considerations of a British Bill of Rights, or even maybe a UK Bill of Rights and a British statement of values? You have already said a bit about this, but can I ask if you have anything more to say about whether you think that the consideration of a British Bill of Rights will be detrimental to what you are doing?

  Professor Dickson: The only thing I would add to what I have said already is that to me, and indeed to the Commission that I was the Chief Commissioner of, the Human Rights Act has been a tremendous success and a very important document, and I for one would like to see a Bill of Rights for Northern Ireland (and indeed a UK Bill of Rights) build upon the Human Rights Act. One of the complicating factors in the Good Friday Agreement is that it was agreed prior to the passing of the Human Rights Act and one of the commitments in the Agreement was to incorporate the European Convention on Human Rights which then happened a few months later. Some people in Northern Ireland therefore think that we already have a Bill of Rights; it is the Human Rights Act, but another bit of the Good Friday Agreement specifically says that the Bill of Rights for Northern Ireland is to have rights supplementary to those in the European Convention on Human Rights, and most of the work of the Human Rights Commission while I was there was focused on trying to identify the supplementary rights that there should be. We found there was a great variety of such rights that should be included, so whatever happens to the current process my own view is that it should build upon the Human Rights Act, and that should not be a threat, as some people have recently suggested, as regards the position in the Republic of Ireland because it too has fairly recently incorporated the European Convention in a way that is not hugely dissimilar to the process in the UK, and that again should be built upon in my view.

  Professor Sidoti: I hesitated when you asked the question because ultimately I do not know. The process that is going on with the consideration of a British or potentially UK Bill of Rights may be detrimental to what is happening in Northern Ireland but it need not be. It may be, to take up Brice's point, which I agree with entirely, that this process challenges the current scope and operation of the Human Rights Act. The one thing that we have agreement on in Northern Ireland is that whatever we will be recommending and proposing will not displace or minimise the Human Rights Act and its application. We are not seeing any weakening of existing law in the United Kingdom, and equally—and this is part of the basis that we agreed upon at our very first meeting—there should be no weakening, undermining or anything inconsistent with existing human rights protections in the United Kingdom or with international human rights standards. If what starts to be suggested through this process here starts undermining the existing protections in the United Kingdom, then yes, it will be detrimental to what we are doing in Northern Ireland, but, as I said earlier, I can see these processes occurring concurrently and positively and being mutually reinforcing. Whether that proves to be the case is out of my hands.

  Q125  Baroness Stern: What issues are raised in the context of devolution and the development of separate Northern Irish and British Bills of Rights? We have touched on this but I am sure there is more to say.

  Professor Sidoti: This is the issue that the Earl of Onslow raised and I responded to briefly. It really goes back to the question of how these things are drafted. We have a basis of international human rights law. That is where I am coming from and so it is no surprise that I keep going back to it. This is an agreed international statement of what are the fundamental rights of all human beings. What happens then at the national level is that decisions are taken appropriately about the extent to which and the ways in which these rights are protected in national law and through national practice. It is not just a matter of law; it can be a matter of administrative action, public policy and so forth. There is no single prescriptive way in which human rights should be protected and promoted, and so it really becomes a matter for national legislatures to decide the form in which human rights are protected. It could be that a British Act only applies in Great Britain itself while a Northern Ireland Act applies only in Northern Ireland. It could be that there is Westminster legislation that governs the actions of the Westminster legislative process and the courts that are implementing and enforcing Westminster laws while leaving the devolved parts of the United Kingdom to deal appropriately within their own jurisdictions with different aspects of it. It may be that there are things that need to be addressed in Northern Ireland because of its history that do not need to be addressed in legislative form at the level of either Britain or the United Kingdom. I think these are issues that are quite properly the subject of debate, but there is no necessary starting point in this debate that things are automatically by definition inconsistent or that something should happen and something should not. The way in which the law is developed will vary not only from state to state but also at times from parts of states, whether in federal systems or in systems of unitary devolved government.

  Professor Dickson: If I could just add a supplementary point, I think what is important is that if certain rights, especially in the economic and social field, are to be protected by the Bill of Rights for Northern Ireland or for the UK, regard should be had to the fact that devolved administrations have responsibilities in those areas—education and health, for example, in the case of Northern Ireland, so it would be appropriate at the very least that the Assembly in Northern Ireland consciously debated the enactment of any such protection of rights that would have effect in Northern Ireland because that Assembly is going to have responsibility for ensuring that the requisite resources are put into protecting those rights. I am in favour of a national Bill of Rights that protects core rights but if the devolved administrations want to go further and protect additional rights for their part of the country then well and good.

  Q126  Earl of Onslow: I can see where you can say in Northern Ireland, "We are fed up with sectarian education so we are going to have all schools non-sectarian", but I can also see that that would not necessarily be appropriate to the rest of the United Kingdom. Where I get into a muddle is where you get a clash where there might be a less good right in Northern Ireland. Would that not be overridden by the UK Bill of Rights which might say something similar? That is what I get myself in a muddle over. Do you see what I am getting at? Am I making myself clear?

  Professor Sidoti: I can see what you are getting at. Again, it would depend upon the law that was passed here in the Westminster Parliament. If it said, "This law is paramount over laws that apply elsewhere", the devolved law would be overruled of itself. It depends upon how you go about drafting the law.

  Q127  Earl of Onslow: Does that in itself add tension? It seems to me that all the Queen's subjects ought to have the same rights and liberties as they have always had. This is the great tradition of common law, the magic of common law which has gone back for 1,000 years. That is why I have this terrible, nagging doubt of different rights, different privileges, different parts of the kingdom.

  Professor Sidoti: In terms of the application of human rights, I have to answer in two parts. Part one is that every single person anywhere in the world has exactly the same human rights which are expressed in international human rights law. Part two is that the way in which enforcement or implementation is provided can vary. It may be that somebody in, say, Northern Ireland will have exactly the same rights as somebody here in England but the process of implementation or enforcement will vary. One can go to the court and the other cannot. We do not have here a difference in human rights but we have a difference in the way in which those rights are enacted, protected, promoted at the local level.

  Q128  Earl of Onslow: We could not have a Human Rights Act which applied only to Great Britain, England, Scotland and Wales, and not apply it to Northern Ireland or just apply it to Scotland, Northern Ireland and Wales and not to England. That would have been a constitutional abortion, would it not?

  Professor Sidoti: You could not have the European Convention for Human Rights only partially applying because the state of the United Kingdom has ratified that and it applies to everybody. There is no reason in legal theory—I can see a great reason in principle—why you could not have the Human Rights Act applying to one part of the UK and not to another. In Northern Ireland it has been said explicitly at the level of the Forum that that is not wanted.

  Q129  Chairman: Is there anything you would like to add to what you have had to tell us? It has been very helpful.

  Professor Sidoti: Just a personal message. You are much more polite than Australian parliamentary committees.

  Q130  Chairman: I have observed Prime Minister's question time in Australia and if you think it is rude here you should see it there.

  Professor Sidoti: Your level of attendance is also much better, so thank you.

  Chairman: Thank you very much.



 
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