HOUSE OF LORDS
House of COMMONS
MINUTES OF EVIDENCE
JOINT COMMITTEE ON HUMAN RIGHTS
Monday 28 January 2008
PROFESSOR CHRIS SIDOTI and PROFESSOR BRICE DICKSON
USE OF THE TRANSCRIPT
Taken before the Joint Human Rights Committee
on Monday 28 January 2008
Mr Andrew Dismore
Witnesses: Professor Chris Sidoti, Bill of Rights Forum for Northern Ireland, and Professor Brice Dickson, formerly Chief Commissioner of the Northern Ireland Human Rights Commission, now Professor of International and Comparative Law at Queen's University, Belfast, examined.
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 -----
Q100 Chairman: Scotland has a completely different attitude to jury trial, for example.
Professor Sidoti: Yes, I know.
Q101 Chairman: So that is an example of how it could be different. Sorry; we are debating amongst ourselves now, but if we take healthcare, for example, healthcare is devolved to the different administrations and if you are talking about social and economic rights some part of the United Kingdom might decide that they wanted to have healthcare as part of the social and economic rights and other parts might not.
Professor Dickson: As is the case in Canada, where there is a federal charter, but also most of the provinces of Canada have their own Bills of Rights governing issues that are devolved to them.
Q102 Lord Dubs: You may have dealt with most of my first question but is there anything else about the process in Northern Ireland that you want to mention? You have talked about a lot of it already.
Professor Dickson: I perhaps would emphasise the need to have regard to the international standards on human rights. Certainly the Human Rights Commission found in its work that having regard to those international obligations which the UK Government has already signed up to was immensely helpful, and indeed in the drafts that we produced of the Bill of Rights we ended up incorporating by reference documents like the UN Convention on the Rights of the Child or the European Framework Convention for National Minorities because we thought they summed up very well what needed to be done on the ground in Northern Ireland and incorporating by reference is a shorthand and easy way of protecting rights without over-lengthening your document.
Q103 Lord Dubs: If you looked at it overall in Northern Ireland what would you say are the advantages and disadvantages of the process that you have gone through?
Professor Dickson: The disadvantages are that it is quite time-consuming and quite expensive, although the Human Rights Commission has never received the funding it really needed for this type of work. You risk creating divisions between people because these issues are extremely controversial. On the other hand, the advantages to my mind outweigh the disadvantages in that you get everything out into the open. You make it clear to people that any fears they might have about the protection of rights are misplaced and that nobody has anything to be scared of with a Bill of Rights. A Bill of Rights can only help society. It cannot disadvantage society.
Q104 Lord Dubs: Is that your view, Professor Sidoti?
Professor Sidoti: Yes, it is my view. I would add though one other part, and that is the importance of having these kinds of fundamental issues debated not only in the community but also amongst some of the political leadership and, in the case of the Forum, across political and civil society. It is difficult at times to find forums where these issues can be debated and they are fundamental issues. Much of politics, much of the work of community organisations as well, is tied up with day-to-day pressures, whatever is the crisis of the day that dominates the media, whatever are the demands of people who are seeking social welfare assistance. The opportunity to stand back and discuss seriously what are the fundamental natures of our relationships and where we as a society want to go are very limited and I think that the Bill of Rights debate has given rise to those opportunities in ways that would not otherwise have occurred.
Q105 Lord Dubs: You have had ten years of this. It seems to me a killingly long time for you. Do you think you should have had a time limit at the outset or something else to stop this ten years, or is this inevitable?
Professor Sidoti: Maybe I should jump in first this time, and I do so because I think that Brice's Commission had great difficulties. In large part the length of time that has been taken in Northern Ireland from my perspective as an outsider is that, because the Bill of Rights debate was so intimately connected with the broader political process there, when that process ground into the sand in about 2003/2004 so did the Bill of Rights discussion with it. The ten years that things have taken in Northern Ireland are very much a result of the broader political problems of Northern Ireland, and now we do have a deadline. I was appointed from the beginning of April last year. We are due to report by 31 March this year, so those kinds of time limits have now been imposed, but I think the long period that was taken is very much a product of the broader political situation there. At the same time proper consultation, getting people to be able to understand first and then seriously discuss such complex and important issues, does need some time, but not necessarily a decade.
Professor Dickson: That is right. The Commission, when it first launched its campaign for a Bill of Rights in March 2000, thought that it would take between 18 months and two years. The Commission did succeed in producing its draft Bill of Rights within the 18 months deadline in September 2001, but that provoked such controversy amongst the politicians and others in Northern Ireland that the whole process got elongated. It has taken much longer than I myself had hoped. At the end of the day there is only a certain limited number of options in this whole field and decisions need to be taken by those who have the political responsibility for taking them.
Q106 Lord Dubs: One of you said earlier that there was inadequate funding for the whole process. I think it was you, Professor Dickson.
Professor Dickson: That was clearly the case with the Human Rights Commission, which had to beg the Government to give it more money, which was forthcoming to the tune, I think, of about £350,000 in 2001/2002. I would estimate that probably less than one million pounds has been spent on the Bill of Rights in the last ten years in Northern Ireland.
Q107 Lord Dubs: I think you both have said that the process was very political in Northern Ireland. Do you think it is inevitable that the process was as politicised as it was or would your advice to us be that there are different ways of doing it, or was that unique to Northern Ireland?
Professor Dickson: I think the process is inevitably going to be political in any society, but in Northern Ireland, obviously, there was an extra dimension to the political nature of the controversy, not least because the Good Friday Agreement seems to suggest that whatever Bill of Rights is put in place for Northern Ireland (if one is put in place) there has to be a reciprocal protection of rights in the Republic of Ireland, and there are particular rights which, let us say, the Nationalists or the Unionists in Northern Ireland would be campaigning for, which inevitably provokes opposition from the other side, so there was that extra level of politicisation of the process in Northern Ireland.
Q108 Lord Dubs: Professor Sidoti, has that difficulty now been overcome?
Professor Sidoti: No, it has not, but I do not think it will ever be overcome. At a more general level, human rights are of their nature political. They are about the relationship between the governors and the governed and there is no more essentially political issue than that. There are particular political questions in Northern Ireland relating to the relationship with Westminster and the relationship with the South and so forth. In every society there will be particular political issues that have to be addressed but there is no avoiding the discussion of the political when you are discussing human rights.
Q109 Chairman: Can I just ask you about these political differences? When you are talking about political differences in Northern Ireland are you talking about political differences effectively between the Protestant and Catholic communities and their representatives or are you talking about political differences as we would recognise them between the left and right of politics, for example, on social and economic rights?
Professor Sidoti: Yes, and that is the nature of it. The politics of any community are enormously complex. In Northern Ireland it is almost as though past politics of political parties based around particular communities were an artificial political factor. When you look at what we would normally consider to be normal politics in society, where mainly there are debates on ideological terms, I think, very fortunately, we are seeing a longed-for normalisation of life in Northern Ireland where hopefully we can have politics that have parties far more based on ideology than on confessional or particular views about the nature of international relationships and identity. At this stage I think we are in a transitional period and we are seeing political parties that on the one hand continue to have that concept of identity-based politics but on the other are moving increasingly towards differences of politics, differences of approach, differences of ideological view.
Q110 Chairman: So at the moment, within the discussion in Northern Ireland, when you talk about politics it is both the politics of ideology and the politics of identity that are causing the differences?
Professor Sidoti: At the level of the political parties certainly so.
Q111 Earl of Onslow: You have very interestingly told us that there are differences, as I understand it, on the content of the Bill of Rights which are taken by the Green and the Orange factions, for want of a better expression. Could you enlighten us as to what some of those differences are?
Professor Sidoti: I suppose I have to look back historically at at least the political representatives. It is very difficult to talk about completely iron-clad community views when in fact the views across the community do span spectrums.
Q112 Earl of Onslow: I know, but you said that there have been differences on confessional lines. What are the differences?
Professor Sidoti: Sure, and what I said was that the political parties have been organised along the lines of community identity and that remains the case predominantly, and the parties that were identified as Unionist in the past tended to take either a hostile or a narrow view towards a Bill of Rights; the parties that were identified as Nationalist tended to take a more expansive view on a Bill of Rights. I think that was largely because of the history of Northern Ireland that originally saw civil rights (but now broadened into human rights) as being related to a particular historic community.
Q113 Earl of Onslow: I understand that absolutely. What I am still trying to get at is can you say clause X in the draft Bill was liked by the Nationalists and disliked by the Unionists or vice versa, and what was the reason? I am trying to get to what they actually objected to.
Professor Sidoti: When it comes to the particulars, we have not got clauses at this stage but I can talk about categories. The Unionist parties tend to be more hostile towards the inclusion of economic and social rights. The Nationalist parties tend to be more positive towards the inclusion of economic and social rights. The Unionist parties have had a particular concern about such issues as parades, symbols and cultural identity in that sense; the Nationalist parties have tended to be far more concerned about increasing tensions or harassment of particular communities. So on those two issues I think we see very clear historic divisions between the parties.
Earl of Onslow: That is exactly the information I wanted. Thank you very much.
Q114 Chairman: Sorry to pursue this issue further with you but on some of the latter points it is quite understandable, given the history. If you take social and economic rights, and you look at where the political support for any of the parties you talk about comes from, given the fact that, for example, the Loyalist parties, the Unionist parties, have significant working-class support, you would think that in a traditional left/right perspective that would be quite an important feature for Unionist politics to pick up because they would be the sorts of issues that their electorate would in "normal politics" be concerned about.
Professor Sidoti: Certainly the community organisations in Northern Ireland, who are the experts of that, say they see exactly the same issues of the socio-economic kind right across the community of Northern Ireland - issues of education, of healthcare, of employment and so forth. Coming, as I do, not from a Northern Ireland position but from an international human rights law position, I certainly see human rights as the business of all human beings and as affecting each individual in exactly the same way.
Professor Dickson: The evidence from opinion surveys shows that Protestant working-class people are just as supportive of economic and social rights as Catholic Nationalist working-class people would be.
Q115 Chairman: That would follow from the opinion polling that you mentioned earlier on, so it would also follow therefore that their political organisations are behind the game compared to their grass-roots support.
Professor Dickson: I think that is the case, Chairman, yes.
Q116 John Austin: You said at the beginning that most moves towards a Bill of Rights have arisen from situations of conflict or trauma within communities and that is clearly not the case here. In Northern Ireland one can understand why there is an engagement among the public - a history of conflict, a history of discrimination of one community against the other, and that engagement might be much more difficult in the UK situation, but perhaps you would like to tell us a little about what have been the best methods of engaging with the public in Northern Ireland.
Professor Sidoti: I defer to Brice to talk about the work done by the former Commission and then perhaps I can make a couple of comments about what is happening at the moment.
Professor Dickson: The former Commission went to great lengths to engage with as great a variety of people as possible. It produced a range of documents in different languages, in different levels of complexity, about different issues. It was then circulated widely, it inserted documents in the newspapers, it put adverts on TV, on buses, on bus shelters, it sent contributions to magazines that were widely circulated. It went to great lengths to get out and about to meet all sorts of groups and organisations and raise the profile of the issues. We found that there was a tremendous take-up on the part of children and young people in Northern Ireland. They were extremely enthusiastic about the Bill of Rights. We produced material that was specific to them, we included some of them in the working group on children and young people, and we had a public exhibition of the submissions they made to the Commission, many of which were of an artistic nature. All that, I think, created a great head of steam in favour of the Bill of Rights which in the year 2001 was palpable in Northern Ireland, and to me that makes it all the more regrettable that the politicians at that point were not able to find a consensus position on what should be in the Bill of Rights.
Q117 John Austin: Apart from the production of leaflets and material in different languages were there any specific efforts made to contact the black and minority ethnic communities?
Professor Dickson: There certainly were, although in the intervening six or seven years the number of black and minority ethnic people in Northern Ireland has increased enormously, to the extent that Polish people now outnumber the Chinese people.
Q118 John Austin: And would not have been part of the past conflict?
Professor Dickson: No, certainly not. Yes, efforts were made in that regard and we did have a member of the Commission who was from the black and minority ethnic communities and that was obviously very helpful.
Professor Sidoti: So far as the Forum is concerned, we do not have a consultation role but we are engaged in a fairly limited outreach programme. We have at the moment four half-time outreach workers who are making contact with different aspects of the community. What we are finding though is that community organisations are coming to us in significant numbers and seeking our involvement in events that they are organising, and certainly I see one of my roles as Chair as to attend and participate in as many of those as possible. However, there has been still a very healthy community sector engagement in both awareness raising and information and in encouraging people to participate. One organisation, the Community Foundation of Northern Ireland, has had the resources to put into support for a large number of community groups and has been running programmes in large parts of Northern Ireland. The Human Rights Consortium, which brings together 120 community organisations, has had significant resources for an awareness raising campaign, so the question of the Bill of Rights is actually quite prominent there, and particularly over the last month has achieved a great deal of media attention.
Q119 John Austin: How important do you think the independence of the consultation exercise has been?
Professor Sidoti: Our process at the moment is not entirely independent in the sense that we have people who are representative of either political parties or different sectors. The independence of the consultation process undertaken by the Human Rights Commission I think was critical. It had to be seen as a process that did not have an association with any of the particular parties or particular groupings in Northern Ireland. Now, as I have mentioned, our role is much more as a negotiating forum rather than as a consulting body, and so I think the independence issue per se is not as significant for us, but again our recommendations go back to the Northern Ireland Human Rights Commission and the independence at that level of the final adviser to the Westminster Government I think is extremely important.
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.
Witness: Professor Graham Smith, Centre for Citizenship and Democracy, gave evidence.
Q131 Chairman: We are now into our second session of the afternoon and we are joined by Professor Graham Smith of the Centre for Citizenship and Democracy. Welcome to you. Is there anything you would like to say before we start?
Professor Smith: One thing to stress is I assume the reason I have been asked to come and talk to you is not because I am a human rights specialist, because I would never claim that. If you start asking me details of Human Rights Acts and those kinds of things I am going to have a bit of a problem. My background is mostly studies of public participation so I hope that the reason I have been invited to come here is to talk about methods of public participation, pros and cons and different structures that have been put in place elsewhere.
Q132 Chairman: That is exactly why.
Professor Smith: Then we are on the right wave length.
Q133 Chairman: What do you think are the key lessons for the UK that can be learned from looking at democratic innovations around the world?
Professor Smith: What is very interesting at the moment is I think we are going through a period of a lot of experimentation with public participation in a way that we maybe had not done a decade ago. There are some really interesting examples of where governments have taken quite bold steps to engage the public in innovative ways which take us beyond simple, traditional modes of consultation. The one that pops into my mind here is what happened in British Columbia and Ontario. They were not looking for whole scale constitutional change but they were looking to change their electoral system. Politicians being politicians could not decide what the best electoral system would be, as we would witness in our own Parliament. They decided that what they would do was set up an assembly of 160 randomly selected citizens from all over British Columbia and they would let them learn about the issues, deliberate, consult themselves with the public over an 11 month period so they would become "experts" in electoral form. They put a recommendation forward. They recommended a change and the government had agreed that if there was a recommendation for change that would go to a referendum, something completely different from what we would be used to. There are what I take to be quite amazing experiments going on in advanced liberal democracies.
Q134 Chairman: Are they getting it right?
Professor Smith: No. That is the interesting question. The referendum was lost in British Columbia but only by two per cent. They are going to rerun it because they had two thresholds, one which was based on winning in a number of localities and that was fine, but they hit 57.7 per cent rather than 60 per cent overall so it was very close. The answer may be that people do not want electoral reform or that people do not want a new Bill of Rights. That is one answer, is it not?
Q135 Chairman: What was the turn out like on that referendum? If you have had this huge public engagement process, what sort of turn out do you achieve generally?
Professor Smith: I am afraid I would have to give you the details of the turn out. There was a lot of criticism of the government that they supported the assembly but they did not support the public debate that followed it. One of the criticisms is that a lot of people were not aware of the assembly. They did a very good job in institutional design but not in publicity.
Q136 Chairman: That begs the question is the process as important, more important or less important than the outcome?
Professor Smith: It depends where you stand, does it not? I think it is critical, if you are going to look at something at this level of potential impact on a political system, that the process is carefully constructed. I am not necessarily arguing the case for the British Columbia method; I am just saying that that is an example of the sort of thing that was done. If you are going to look at creating a Bill of Rights that shapes the relationship between the governed and the governors, the process by which that is brought about is incredibly important.
Q137 Chairman: Let me give you a couple of examples. One is human rights, although you would not see it in those terms. If public consultation produces a significantly weighted outcome in favour of something, to what extent is it necessary for politicians to respond, even if it is the wrong thing to do? Suppose we had a referendum on the death penalty, for example, and it came out with an enormous majority in favour of restoring the death penalty, clearly in breach of our European Convention rights and probably contrary to what informed opinion would hold in this place. How do you square the circle?
Professor Smith: Would a state hold a referendum on that because it would be limited by the Convention of Human Rights? We would not have held a referendum on that issue but I understand your point. I am not arguing the case for a referendum necessarily. You asked me whether there had been any interesting practice and I was saying that this was an example.
Q138 Chairman: This came out of the previous discussion. We heard for example that support for social and economic rights was generating 80 per cent approval in opinion polling; yet some politicians were extremely nervous about it. If you did the same thing on the mainland, I suppose a lot of politicians here across the political persuasions are nervous about it because of the implications of changes or whatever. How would you try to square that sort of circle?
Professor Smith: Surely part of the consultation process is a desire to know what citizens believe?
Q139 Chairman: If citizens come up with something that you do not like and you do not think is workable, do you run the risk therefore of undermining the wider political process by creating this groundswell of opinion that you cannot deliver?
Professor Smith: It is interesting that you use the term "groundswell of opinion" because sometimes I know that consultation exercises are so badly organised that this groundswell of opinion is often not informed opinion. It is constructed by particular political groups. That is why the sorts of things that I was talking about in British Columbia were quite important because they gave citizens a chance to develop reflective opinions. We do opinion polls all the time. We ask people about things they have not thought about. What does that mean? I do not understand how useful that information is. It is just people's raw preferences. That is why I think the process is crucial. Another example you might want to talk about is the example in Victoria where they had a commission that went around over a period of six months engaging in consultations with local community groups etc. They were criticised because the agenda that they had been set by the government in Victoria ruled out social and economic rights, so they got a bit of a backlash on that particular issue. It is a difficult one. If you are planning to engage in a consultation process and you do not want to hear what people have to say, I would say don't engage in a consultation process. I would think very carefully about how you construct that consultation process.
Earl of Onslow: Additional to that, are we back with the great Burke address to his Bristol electors, "You elect me for my judgment". The people of Hendon very wisely say that our chairman is a splendid chairman and he shall represent them in Parliament. They ask him to take decisions. How do you square that one with modern, participatory democracy, which is terribly important?
Q140 Chairman: By consulting my constituents on all sorts of things.
Professor Smith: A lot of that is down to your opinion on the nature of a representative, is it not? Something like establishing a Bill of Rights is a constitutional moment. This is a Bill that will structure the way that we govern. Therefore, it is a particular event. There are people who write in this area who ask, "Are politicians and perhaps even appointed officials the best people to make judgments about a Bill that is going to limit their activities?" Are they best placed to do that because it is going to affect the nature of their work?
Q141 Earl of Onslow: I see a Bill of Rights as a Bill which limits politicians and the state's abilities, not something that limits the ability of the subjects to do what they want.
Professor Smith: I agree with you. The return on that is saying are the people who are going to be limited the people who should be making a decision about where those limits are?
Q142 Earl of Onslow: No. They are going to complain like hell. What in your view are likely to be the most effective methods for engaging the public in a meaningful debate? How would you do it, in other words?
Professor Smith: If I was given carte blanche, how would I do it?
Q143 Earl of Onslow: Yes.
Professor Smith: I believe the idea is to establish an independent commission. That is what I have heard. First of all, it is important who is on that independent commission. If you take the Victoria example which is seen as reasonably good practice in this regard, it is not a commission which acts like a select committee might here which asks for consultations to be sent in but actively goes out and engages with those communities where those communities are, not expecting everybody to come to London or whatever. They spent six months going around Victoria, meeting groups, particularly hard to reach groups. If you are going to set up an independent commission, that is how that independent commission should act. I also think there is room for what I discussed earlier, this idea of a citizens' assembly that is protected from political and social pressures. We might have to agree to disagree on this one, might we not? The reason why is because you learn a lot from allowing citizens to deliberate with each other under conditions when they are not being influenced by the pressures that normally would structure their decisions. When you go out to do a consultation, most of the people who are going to engage with you are people with a very strong interest in that area, unless you do what Victoria and others have done and go to a much lower level and engage with groups there. If you want to hear the voice of the informed public, how are you going to get the voice of the informed public? That is where these sorts of assemblies may have a place. I am not necessarily arguing you do what they did in British Columbia or to then say, "Whatever that assembly comes up with, that should be the Act." I think there is a role for that kind of forum because it gives a different sort of input from the input that comes from interest groups.
Q144 Lord Morris of Handsworth: How do you keep the pressure group out of that debate?
Professor Smith: You do not keep them out of the debate. I will go back to British Columbia. The assembly met maybe every second or third weekend over the period of about 11 months and also engaged in a consultation exercise during the middle of that period. They would meet and learn about issues. Part of the learning about issues was being exposed to the arguments of interest groups who would come and be witnesses and be cross-examined. Those witnesses would then leave the room and those citizens would then be able to deliberate amongst themselves about the issue at hand. It is not that you protect them in the sense of saying that they do not hear those arguments. What you are saying is that if you have a consultation exercise where policy professionals are in the room, they dominate. My argument is you do not get the informed view of citizens then.
Q145 Earl of Onslow: How do you choose these people?
Professor Smith: In British Columbia and also the practice with citizens' juries and deliberate opinion polls, it is based on a form of random sampling. In British Columbia they decided they wanted a man and a woman from each electoral area within the province. They decided that they wanted to ensure that there was age difference amongst those selected. They also added two indigenous people at the end because they realised the process had not managed to do that. Other juries have selected on the basis of ethnicity. Others have done it on the basis of social class. There are different ways of doing it. You do it on the basis of what you take to be politically salient characteristics. You produce a statistically representative sample of the people. That is as good as you can get.
Q146 Earl of Onslow: The people of the electoral district have no choice in who is going to make up ----?
Professor Smith: The traditional mode of accountability that you are familiar with with the Westminster system is a different process. Again, remember, I did not necessarily say that you would give that group the final say. I am just saying that would be an extremely interesting input and the kind of input, if I was creating policy, I would like to see. We are always making claims on what informed public opinion is. In fact, most of us have no idea what informed public opinion is. Creating those kinds of forums allows you to do that. As well as, I would argue, going down to community groups to find out what sorts of issues are raised at that level as well. Take the Westminster Village here. People listen to each other and they take that to be public opinion but it is not informed public opinion.
Q147 Lord Dubs: It seems to me a lot of the legislation on our statute book has component elements in it which could be part of a Bill of Rights.
Professor Smith: Of course.
Q148 Lord Dubs: Yet none of that went through the process you have mentioned - in other words, the Human Rights Act and so on. Does that mean that legislation has been flawed?
Professor Smith: Some people would say it is less legitimate in many ways. I was reading through some of the previous evidence given in previous sessions and I noted that somebody said, when the Human Rights Act was enacted, there was no real leadership or public debate around it. It was just enacted. It meant there would be no opportunity to raise public awareness. People did not really understand the Act. They did not know what it meant. They did not know how it worked. There was a lack of public understanding. Part of the process of public consultation is raising public awareness and understanding. The other part is legitimising a decision.
Q149 Earl of Onslow: The legitimacy of passing the Human Rights Act was that the Labour Party had won an election and part of its manifesto was that. That seems to me an absolutely rock solid piece of legitimate Act passing.
Professor Smith: Do you think that if you went back to all the Labour voters they would be able to say, "I voted for Labour because of the Human Rights Act and I know what it means"?
Earl of Onslow: No, I am not saying that. The point is that people have chosen who they wish to govern them. Under those circumstances those people have a mandate to do it and the difficulty with all these ----
Chairman: We can contrast this argument with the devolution argument where it was party policy to go down that route but it was carefully prepared with the big debates beforehand, consultation and a referendum in London and also in regional government where, despite all the efforts, the north east voted against it. I suppose I am supporting Professor Smith here in saying that part of it is preparing the ground and arguing the case. Just because it is in the manifesto does not mean to say that that is the end of the story.
Q150 Earl of Onslow: I am not saying what my views are.
Professor Smith: I will take the devolution example. People knew what they were voting for if they were voting for Labour on the basis of devolution. But there are a hundred reasons why people voted.
Q151 Lord Morris of Handsworth: Was there not a Scottish Convention established to prepare through the formality of the process?
Professor Smith: Yes.
Q152 Lord Morris of Handsworth: There was a preparatory exercise which ensured that by the time it reached the wider public opinions were settled.
Professor Smith: Yes. This goes back to what was being said earlier about the political emphasis behind it. The interesting thing about the Bill of Rights here is that there is not a massive cry for a Bill of Rights at the moment. Most of the Bills of Rights that emerge come out of some form of constitutional conflict. We are in a very unusual position here. So you are going to have to drum up some interest in a way that you do not have to in Northern Ireland or you did not have to in Scotland with devolution.
Q153 Lord Morris of Handsworth: We will leave it to the government to drum up some interest.
Professor Smith: They are very good at that. Going back to the earlier point, in no one's manifesto as far as I remember was there the argument that there was going to be a Bill of Rights. We are in a very unusual situation. Unless we take your Burkean view, which is that people have voted for an individual to make their judgment whatever, people voted when they did not know there was going to be a Bill of Rights and maybe that might have affected their votes. I do not know.
Q154 Earl of Onslow: I think you can argue that there is no likelihood of a Bill of Rights being enacted before the next General Election. At the next General Election I strongly suspect that probably in both parties' manifestos there will be a commitment. What we are doing is part of the very correct part of the consultation process which you rightly believe to be so important.
Professor Smith: I think you do need to actively engage citizens in this because it is going to pass them by otherwise in the same way that the Human Rights Act has passed people by. And the misunderstanding of it has created all sorts of problems with the kinds of things that you hear in the media, The Today Programme, Radio 5, the phone ins about what the Human Rights Act has done or is going to do. People just do not know what it is. Part of the consultation process is raising awareness as much as it is about getting informed opinion about what should be in it.
Q155 Dr Harris: Although I am no expert on the Liberal Democrat manifesto, I believe it has been a longstanding manifesto commitment to bring in a Bill of Rights and I commend that document to you for your research so that you are in a position to know what the parties are doing.
Professor Smith: Unlike your colleagues!
Q156 Dr Harris: I will direct myself to it as well. In contradistinction to the argument that the government has a mandate to do things the government is elected to do, simply because it is elected, in the case of devolution as Lord Morris rightly said there was more of a consensus and of course more than one party was calling for that. In a system we have at the moment where 35 per cent of that relatively low number of people who turn out to vote vote for the party that has a majority, would you agree it is harder to argue that there is a mandate based on 35 per cent of a 63 per cent turn out?
Professor Smith: You are trying to tempt me into discussions of electoral reform here, I think.
Q157 Dr Harris: I am talking about the nature of the mandate.
Professor Smith: I think it relates to something else as well. I think you are right there but also, it related to the level of public dissatisfaction and distrust in Westminster politics and in politicians and political institutions. I see that the kind of consultation exercise that some states and provinces have gone in for can be part of the process of re-engaging citizens in the political process. What can be more important than what is in a sense a founding document that describes the relationship between governed and governors?
Q158 Earl of Onslow: That question has set a lot of hares running. If you think that engaging the majority of people is difficult, is it not infinitely harder to get minority interests engaged? I have the normal, standard black and minority ethnic communities down here.
Professor Smith: That is why the Chair talked about why the process is important. I would say process is absolutely important. If you do a bad consultation then you fail to engage hard to reach groups. If you engage people who know those communities, then yes, you can do it well. It is a question of who is organising the consultation, how committed they are and importantly how many resources - I am talking about time and money here - they have to spend on this. There is no reason to say that a consultation process could not be established that engaged black and minority ethnic communities and other vulnerable and hard to reach groups. Again, I refer you back to the earlier idea of a randomly selected public. You ensure that minority groups are there. You can even over sample them if that is your decision.
Q159 Baroness Stern: The government is proposing to have a public debate and it has announced the creation of a Citizens' Forum. Professor King at Essex University has argued that a Citizens' Forum would invariably attract the elderly. I do not know what is wrong with that. It would invariably attract the elderly, the male, the white, the middle class and the people with both bees in their bonnets and time on their hands. Assuming that the government really does want to consult and within our context in the UK, what sort of body should be established that would be useful in considering the range of options and making recommendations?
Professor Smith: In some sense I agree with what Professor King is saying if he is saying that the Forum would be similar to the other kinds of forums that have been run recently by the government. They will be highly unrepresentative. They will tend to attract people who are all politically active. That is why again I would suggest that the government seriously considers alternative forms of organisation like a randomly selected forum in order to ensure that you have different types of voices in there and to ensure that you do not just get the politically active. That, I would imagine, would be run alongside a consultation process that went out to groups. One of the problems with the Citizens' Forum is always that these mythical citizens are expected to come to you. Lots of people do like coming to London but this is not always the best way of hearing marginalised voices, particularly from poor communities etc. I would suggest again that serious consideration is given to setting up some sort of citizens' assembly which is randomly selected, stratified along significant characteristics and that runs alongside a consultation exercise which not only consults with the interest groups within this area but is a commission that actively engages with hard to reach communities and goes to speak to them on their turf. It is time and money though again.
Q160 Baroness Stern: Do you see merit in specialist representatives of different civic society groups being able to debate with political parties in a single grouping?
Professor Smith: Do you mean like a constitutional convention or something like that?
Q161 Baroness Stern: I suppose I do.
Professor Smith: What those sorts of events can do is at least make clear where the differences are. That might be something which is useful as a precursor to public engagement, where people are clear where different groups stand. One would hope that the kind of consultation document that was produced and the consultation materials that were produced would fairly represent where differences were. Would I want to see that being the only mode of engagement? No, because I think representatives of peak associations are not representative of citizens. They are citizens but they are not necessarily representatives of public opinion. One thing we know about organisation is that some communities find it easier to organise than others so whoever happens to be there at the time very much represents who is politically and economically able at that particular time.
Q162 Lord Morris of Handsworth: We take as a given your strong support for public engagement on major constitutional issues. What I am not quite clear about from what you have said to us so far is who should do it.
Professor Smith: Do you mean who should organise it?
Q163 Lord Morris of Handsworth: Who should be involved. Can I ask whether you think the consultation process should be independent of government?
Professor Smith: Yes.
Q164 Lord Morris of Handsworth: Who, in your view, should lead the process?
Professor Smith: You need to have probably cross party support for a small commission if you are going to approach it that way. The easiest thing to say about a consultation exercise is that it was skewed from the start. You need to be careful. I noticed in Australia, in Victoria, they selected a professor who was well known in the media, who does not have party affiliations. They picked someone who was very active in the voluntary sector. They picked someone who was coming into politics but had been known as a basketball star. Why not? They engaged a QC as well. They did not get accused of political bias. The feeling was that the different views of political parties were represented in that group. What they were criticised for was a failure to have black and ethnic minority voices and indigenous community voices. It is crucial that the construction of that commission is really carefully considered. The last thing you want is for that commission to be seen as a puppet of the government.
Q165 Lord Morris of Handsworth: What I draw from your answer is that you can take steps to make the process independent of government but, from what you have said, it does not sound to me as if it would be independent of politics if the government or whoever appoints this cross party grouping is still political.
Professor Smith: That is one of the arguments that politicians in British Columbia made for saying, "Let us create this assembly that is protected from politics in that way." They made the decision that, whatever their recommendation, that would then go to a referendum. I feel that is not the kind of thing that this government is going to accept. A more realistic solution is trying to find people who have good public standing, who are seen as trustworthy. There are some of those people still left. You have to be so careful because if that commission is poorly chosen that becomes the focus of anybody who does not agree with what is coming out.
Q166 Lord Morris of Handsworth: Shortly this Committee is due to spend some time with the Equality and Human Rights Commission. Do you think there is a role for that body in the process and, if so, what should their role be?
Professor Smith: I would argue there is a very big role for an organisation like that that has a lot of knowledge of issues facing very diverse communities who would feed into a consultation process. But also, I would argue, probably as an organisation that could point a commission towards people who could help them access hard to reach groups. The organisations that have been amalgamated into the Equalities and Human Rights Commission are organisations who do, to a certain degree, know their communities.
Q167 Lord Morris of Handsworth: Do you think the Commission could still play that role and preserve its independence?
Professor Smith: Yes. I do not see any problem for it in terms of my second point which is giving access to those communities. In terms of my first point, I would have thought there were very technical issues that the Commission would want to put forward. The work of the CRE and other organisations before may not have been political in a party political sense but it was political in the sense of the types of issues they were raising. I cannot see any problem. I would not suggest that that organisation is an organisation be charged with being the Commission to lead the consultation process because I just think it is too controversial an organisation.
Q168 Earl of Onslow: We heard earlier on that the Victorian Government in Australia had a six month consultation, six months to do it and did it. The Northern Irish people have been banging on in a slightly Irish way ad infinitum. How would you get round those two problems? Do you think that the Australian way is the way to do it?
Professor Smith: As the speakers before said, Northern Ireland is a very particular case. What they are trying to do is part of a larger process. Victoria is a bit more like the situation here which is that there was a decision that they should investigate whether there should be a Bill of Rights. Because that was the first question: should there be a Bill of Rights? 90 per cent of people who were consulted said yes. Our situation in many ways is more similar to Victoria although we have to deal with the Northern Ireland issue. I have noticed in your discussions you could not decide whether it was a UK Bill of Rights or a British Bill of Rights. I do not know what the decision is on that one but it would seem to me that, because of the fact that we are in a stable political position generally, we are similar to Victoria. We are trying to create a document where there is not necessarily a groundswell of demand for it. We do not have that kind of political conflict which is underneath it.
Q169 Earl of Onslow: The corollary of that is that if you do set these time limits and the consultative body comes to no conclusion, you then say that obviously it is not necessary to have a Bill of Rights, do you, or would you give them more time or what? Am I being illogical?
Professor Smith: No, you are not. Six months is probably too short because we are talking about Victoria compared to the United Kingdom and a difference in terms of scale and numbers. I think you can give a commission a charge for what it is expected to do. In Victoria they came up with a draft bill which they gave to the government. I can imagine a situation where you could have a draft bill and if there was a disagreement amongst the commissioners you would say, "These are the areas of disagreement." That would be an extremely worthwhile thing to do. What happened in Victoria was that there was general agreement within the confines of what the government allowed them to do. For example, there was criticism that there could be little substantive discussion of social and economic rights. That was a decision that was made that framed the debate. That is something you need to be aware of. When you start a consultation process, how do you frame the debate? What is allowed to be discussed and what is not has to be explained to citizens; otherwise, they are going to say, "Why cannot we talk about this particular issue?". You have to be careful about the scope of the consultation. You have to ensure that hard to reach groups are reached and that the consultation is well resourced. One of the problems with government consultation is that they have tended not to resource consultation very well. If you are going to do it, do not do it badly.
Q170 Earl of Onslow: Should the process be aimed at achieving a broad consensus or, if there is not consensus, should a fairly large minority be ignored?
Professor Smith: In the end, that is a political judgment. That is part of the decision about the scope of the consultation process. If you are looking for 100 per cent consensus, you are not going to get it. In Victoria they were extremely pleased at a 90 per cent consensus. If you find that you have a consensus except for one particular social group all of whom think it is a bad idea, then you need to be thinking quite carefully.
Q171 Earl of Onslow: This is like God arguing with Abraham over Sodom and Gomorrah, is it not? Peradventure there will be just one man in all of Sodom and he starts at a much higher level. At what level do you start ignoring the minority?
Professor Smith: I cannot give you an answer to that. That will be part of the work of the Commission to ensure that in any result it produces it expresses quite clearly if and where there were systematic disagreements within a particular community. Because of the type of political system we have, this is going to be something that comes back before Parliament, so that people are aware of where any divisions lie.
Lord Dubs: I am a bit nervous of asking this question on a day when the Commons are discussing the Lisbon Treaty. Do you think a popular referendum should be part of the process?
Chairman: Not the Lisbon Treaty.
Q172 Lord Dubs: You have talked a lot about the method of consultation. I ask the question without any personal enthusiasm, but still.
Professor Smith: It is an interesting question. I have no firm answer for you. It very much depends on what we are doing. My feeling is that on this particular issue, because there is not political conflict around it and it is not a salient political issue in that sense, if you had a referendum you would get a pretty poor turn out, to be honest. It is not like devolution. What you are talking about here is, in a sense, moving a few things around from other bills, maybe adding a bit extra but making sure that you have the right things covered in one document. The worst things are referendums that have incredibly low turn outs. I just do not see this as an issue that is going to capture the public imagination in the same way. The only way I could imagine it could capture the public imagination is if you did something really innovative in the consultation process. Even then I would be concerned that people would not necessarily use the referendum for the reason of looking at that particular legislation. It may well be more of a case of being able to vote on a range of other issues. That is part of the public information process. I often am a supporter of referendums. It just depends very much on the issue. I feel on this issue we are not facing political conflict here at the moment, but I would like to see clearly that public engagement has an effect. This is one of the problems that public authorities have. They engage people and there is no clear relationship between the engagement they have and the decision that is made. Some of the best local authorities were looked at by the Audit Commission and in 75 per cent of the decisions they made they could not show how the consultation related to the decision. They just did the consultation because that was what was expected of them. If you are going to do it, do it well. If not, do not.
Q173 Chairman: You mentioned the importance of the process. What about the issue of the content? Supposing there is something very innovative in the content - social and economic rights for example - would that make a difference? I am trying to draw a distinction between what you said about the importance of the process in terms of generating turn out and innovation in that respect. Equally, if there is significant innovation in the content - for example, social and economic rights, environmental rights, horizontal rights - would that make a significant difference?
Professor Smith: The difficulty for me with a referendum is that it is yes or no to everything. There is no sensitivity there. We have no idea whether people are voting it down because they just do not like the government, because they do not like the environmental rights or whatever. It is a very crude way of making a decision. If you are saying something like, "Should we change the electoral system?" that is very simple. When we are talking about a Bill of Rights which contains so much, unless you can think of a very careful way of doing the referendum so that you can work out what it is people are arguing against, almost doing it clause by clause, the referendum may not be the right way of doing things.
Q174 Chairman: If you were to look at the Lisbon Treaty as an example, putting aside what people may or may not have promised, that answer would be that it would be rather silly to have a referendum on the Lisbon Treaty.
Professor Smith: If we can show that something has major constitutional change, there are stronger arguments for referendums.
Q175 Chairman: A Bill of Rights would.
Professor Smith: Take the Australian referendum to become a republic. I think public opinion was that a republic was a good idea. They voted against it because of the format they were given. They did not want a president. They were given no choice, so lots of people voted it down because of the method of selecting a president. The problem with a referendum that we need to get around in some ways is, when people vote no, what is it they are voting no against? Unless you are willing to have quite a complicated referendum which started with say a minimal Bill of Rights and a maximal Bill of Rights. With the Lisbon Treaty it is not entirely clear to people what they would be voting on. It is a bit like the Human Rights Act. The amount of misinformation and misunderstanding around the Lisbon Treaty means that people do not have an informed opinion about it. If you have a referendum process, which I am not necessarily against, we have to make sure that there is a process of public education. I think we do not have that very well established at the moment.
Q176 John Austin: Was there not an example given earlier, the Canadian example, where you got a body of people together to create an informed opinion?
Professor Smith: Yes.
Q177 John Austin: You then had an informed opinion, put it in a referendum and it was lost?
Professor Smith: Yes. Most commentators say the reason it was lost is because the government did not put enough money into publicising it. When people were asked, "Do you agree with the Assembly's recommendation?" most people were voting without knowing even what the Assembly was.
Q178 Earl of Onslow: How do you know that most people did that?
Professor Smith: Because they did polling afterwards. The question was something along the lines of, "Do you agree with the Citizens' Assembly's recommendation that we should move to a single transferable vote?" and the pollsters afterwards said, "What did you vote? Do you know what the Citizens' Assembly is?". They found a significant proportion of people had no idea that the Citizens' Assembly even existed. The publicity issue becomes incredibly important.
Q179 Chairman: Does this not come back to the Earl of Onslow's original point about the nature of representative democracy? I suspect that, if you did opinion polling after people had voted in a General Election and asked them in detail about each party's political programme, they may know one or two headlines but the chances of knowing the full picture would be absolutely zero.
Professor Smith: This was a referendum on one thing. The recommendation had been put forward by a citizens' assembly, so you would have thought that that would be a case when people would know.
Q180 Chairman: That is the point. By extension, I am taking some of the more complicated issues where you are looking at a whole range of things. Ultimately, you come back to saying that in the end it is a representative democracy and they are deciding it.
Professor Smith: Are you trying to make a distinction here? I do not necessarily think a referendum undermines representative democracy. What you are saying is that, for one decision, we are having a referendum. I do not think there is a tension there. This may not answer your question but it goes back to the earlier question. The interesting thing about British Columbia was that those people who did know about the citizens' assembly were more likely to vote in favour because they knew that a group of citizens had come together and deliberated. The polling evidence there suggests that the more people had known about the assembly the more positive was the result. Those people who knew about the citizens' assembly were much more positive about electoral reform. Those who did not were not. That is my point about people being aware of it.
Q181 Chairman: Is the consequence of that perhaps that a referendum should never be seen as binding but as informative for the representative democracy in the end to make the decision?
Professor Smith: That is our way of doing things. People mistakenly think that the fact that the Scots voted for devolution was the reason they were devolved. It was not. It was because there was an Act of Parliament.
Q182 Earl of Onslow: They voted after the Act of Parliament.
Professor Smith: Parliament had to enact it afterwards. As far as I am aware, all referendums in this country have been advisory. The government has said that it will respond but they have been advisory. We do not have a Californian or Swiss approach to this.
Q183 Earl of Onslow: Is that simply because whatever it is no parliament can be bound by anything outside parliament?
Professor Smith: Yes. It is the nature of the system.
Q184 Earl of Onslow: That is a Magna Carta right.
Professor Smith: It is the nature of our political system, yes. I am not sure it mentions referendums in the Magna Carta.
Q185 Chairman: It does not mention elections either.
Professor Smith: We have to be realistic. Any referendum is advisory in this country. If the Labour Party had not enacted devolution it would have been in all sorts of trouble. There was a political will there. I do not want to argue the case that there should not be a referendum. I am just thinking about how it is structured and the fact that referendums only work well when people are informed. Around Europe at the moment people are not necessarily well informed and you have to think very carefully about how you do that.
Q186 Chairman: Can you, no matter how hard you work, create sufficient information to the public to make a decision through a referendum on an incredibly complex issue? The Lisbon Treaty is incredibly complex. Could you ever get to the stage where the public is sufficiently well informed to make a decision on it as opposed to the representative democracy model where in theory at least we have to go away and do our homework and make sure we know what we are voting about?
Professor Smith: One of the problems I was trying to get at with the idea of a Bill of Rights is that there are so many different reasons why people might be against a Bill of Rights. A referendum is a fairly insensitive way of dealing with it, unless you offer two or three different alternatives. Are people informed enough? Are politicians informed enough? I sometimes wonder. That is one of the reasons why something like a citizens' assembly is interesting because at least it gives you a sense of informed opinion. Citizens can look at this assembly and say, "These are my peers. They spent however many months deliberating over this issue. They believe this. There are good reasons why that would also be what I would believe." It is a different kind of input. It is not the kind of input we are used to.
Q187 Lord Dubs: Going back to the other methods of consultation and deliberation you have been talking about before we talked about a referendum, how would you judge whether such a process had been a success or not?
Professor Smith: For a referendum?
Q188 Lord Dubs: No, not for a referendum. I am talking about the process of consultation that you have talked about before we got on to the question of a referendum, which I think is your favoured approach. If you want to answer by way of an example using Victoria, please do so.
Professor Smith: Where we can see that whoever is undertaking the consultation has gone out of their way to engage the different sections of the community, where we have had a process where the scope of consultation is clear to citizens who are engaging in it, those are the sorts of criteria I would use. One of the problems with consultation in the past is people do not know why they are engaging and very often we do not hit the hard to reach groups. Has it been a process that has been inclusive? Have we managed to reach different black and minority ethnic groups, groups of different age, groups of different gender etc? Were they clear about what they were being engaged on? If you are going to go down the commission route, the idea of charging a commission to go and do that is clear. The success of that is that people who felt they wanted to say something on this issue were able to. And people who did not know they had a view on it were able to as well.
Q189 Chairman: Is there anything you would like to add to the discussion?
Professor Smith: No. I wish you great success with your deliberations.
Chairman: Thank you very much.
 I have been advised by a representative of the Ulster Unionist Party on the Bill of Rights Forum that I did not correctly state the position of his party on the Bill of Rights. He advised me that his party was one of the earliest proponents of a Bill of Rights for Northern Ireland and that it considered that most of its concerns had been met by the passage of the UK Human Rights Act. Accordingly, the scope for further protection for human rights through a Bill of rights specific to Northern Ireland at this point was limited. He also advised me that his party supported economic and social rights but did not consider a Bill of Rights as necessarily the best means to achieve their implementation and fulfilment.
 See footnote 1.