UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 360-ii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

NORTHERN IRELAND AFFAIRS COMMITTEE

 

 

A BILL OF RIGHTS FOR NORTHERN IRELAND

 

 

Wednesday 1 July 2009

LADY TRIMBLE

Evidence heard in Public Questions 74 - 118

 

 

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Oral Evidence

Taken before the Northern Ireland Affairs Committee

on Wednesday 1 July 2009

Members present

Sir Patrick Cormack, in the Chair

Rosie Cooper

Christopher Fraser

Mr John Grogan

Mr Stephen Hepburn

Mr Denis Murphy

Dr Alasdair McDonnell

David Simpson

________________

Witness: Lady Trimble, Commissioner, Northern Ireland Human Rights Commission, gave evidence.

Q74 Chairman: Lady Trimble, on behalf of the Northern Ireland Affairs Committee, could I welcome you and thank you very much indeed for coming. You will know that the Committee is engaged on an inquiry into the whole business of the Human Rights Bill in Northern Ireland. We have met and taken formal evidence from the Commission following its report, and because you entered a powerful note of dissent, we thought it only fair to give you the opportunity of speaking to the Committee, and answering our questions, so that we can take fully into account your views and your misgivings and concerns before we make up our own minds and make our report to Parliament, so you are most welcome. Did you wish to make anything in the way of a brief opening statement before we move on to questions?

Lady Trimble: I have prepared a very brief statement which may cover some of the areas that you propose to question me on. I will start by saying that I am a member of the Northern Ireland Human Rights Commission, but my evidence to this Committee is given in a personal capacity as one of the two Commissioners who dissented from the advice delivered by the Commission to the Secretary of State on 10 December 2008. I would also say that I am personally committed to human rights, and that I remain a loyal member of the Northern Ireland Human Rights Commission. I have prepared some further words, but I suspect that they may come up in questioning in any event.

Q75 Chairman: I am sure that is the case, and probably the most sensible thing is for us to proceed on this basis: of course we accept that you are appearing here in your own right; as a loyal member, as you say, of the Commission, but as one who has some fairly significant differences of opinion with the majority view of the Commission as expressed in its pre-Christmas report. If at the end of questioning, you feel that there are any points that have not been adequately addressed from your point of view, then of course, feel free to make a final comment, or, if you think it is more appropriate, to write to the Committee afterwards if there are several things that you wish to pick up on. Can I begin by asking you whether you believe the Secretary of State for Northern Ireland is right to say that the advice provided by the Human Rights Commission goes well beyond the brief that they were given; that is his view, would you like to tell us your view on that?

Lady Trimble: Yes. I do, in many senses, agree with the Secretary of State in his views. The task that we were given was to give advice to the Secretary of State under section 69(7) of the Northern Ireland Act of 1998. The Commission does have the general duty to advise the Secretary of State and the Executive Committee of the Assembly of whatever legislative and other measures they feel ought to be taken to protect human rights, and that duty is under section 69(3) of the Northern Ireland Act, but this was not the section under which the Commission was carrying out its report. The task that led to the Commission's report was very specifically under section 69(7) of the Northern Ireland Act, and that section refers directly to paragraph 4 of the rights section of the Belfast Agreement, which sets out that the Human Rights Commission will be invited to consult and to advise on the scope for defining in Westminster legislation rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, and drawing as appropriate on international instruments and experiences; "these additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem." Now the agreement links the particular circumstances with the principles of mutual respect for the identity and ethos of the two communities. The phrase "to reflect" appears twice. My belief is that that phrase is prescriptive and mandatory, that we have to reflect those particular circumstances and the mutual respect, that those are mandatory and compulsory on the Commission, and that is where I feel that the Commission went too far in carrying out its remit.

Q76 Chairman: So could you just say, before I turn to my colleague, Rosie Cooper, to continue the questioning, very briefly, what form, in your view, should an ideal Bill of Rights for Northern Ireland take?

Lady Trimble: That is an extremely difficult question to answer. I lack the wisdom of Solomon, but I do ---

Q77 Chairman: Well, have a go.

Lady Trimble: I feel that we should have been looking at the circumstances under which the Agreement was made, where we have a society coming out of a period of protracted conflict. The agreement sets out, if you like, a constitutional modus vivendi for people to work together and to live together, so it was that conflict that the agreement was addressing, and the Commission was being asked, I believe, to see if there were some areas that could contribute to the alleviation of that conflict. Now I realise that is a rather circular response, but I am not being specific, because I find it very difficult to actually say what ought to be in a Bill of Rights, and that has been a huge difficulty for a lot of people.

Chairman: I will let my friend and colleague, Rosie Cooper, take up the questioning on those points.

Q78 Rosie Cooper: Thank you. I would like to perhaps ask two questions if I may. Firstly, I would like to just ask you generally, do you support the concept of a Bill of Rights, and did you agree with the methodology for the final stages, I think that was determined around June 2008? If I may, I will come back and ask you another question.

Lady Trimble: The methodology was something that we as a Commission spent several months trying to perfect, and we came up with a rather complex set of tests which I played as full a part as anybody else in setting, in coming to that methodology, but we did actually take counsel's opinion as to our methodology, and he came back with a suggestion that we should adopt a simpler test, a threefold test, instead of our rather complex sevenfold test. I do not know whether, if we had adopted his methodology, instead of ours, we would have come up with anything different at the end of the day, so that is just one of those things that one cannot know.

Q79 Rosie Cooper: I will not continue down that line about corporate governance and how you get there. If you say that, I suppose, many of the proposals put to the Secretary of State, the 80 new statutory rights proposed by the Human Rights Commission, go well beyond the proposals in either the Joint Declaration or the Good Friday Agreement, how do you feel about that? Do you agree that is the case? If you do, could you perhaps give us some examples of that?

Lady Trimble: I do think that that is the case. If you look at the proposals around the socio-economic rights, the areas that those are addressing are by and large common societal problems right across the UK; if you look at housing, that is a problem right across the UK, it is not specific to Northern Ireland; ditto the environment, and rights to social security. So it seems to me to be rather difficult to come up with a proposal that there should be rights around these areas in Northern Ireland when there are not similar rights in the rest of the UK, and I feel concerned that we may lead to rights tourists coming to Northern Ireland to avail of these proposed rights which are not necessarily going to be available to people in other parts of the UK, or even in other parts of Europe, because what is proposed goes so much beyond what is in the European Convention, and so much beyond what is in the Human Rights Act, that we would be in a very, very particular standalone bubble, if you like, and I just am not at all sure that the consequences of that would be particularly good.

Q80 Mr Murphy: Lady Trimble, the Commission actually disputes your view that its advice suggests introducing the principle of positive discrimination when discussing a greater role for women in public life; indeed, the Commissioner Ann Hope told the Committee, and I quote, "We have not, I understand, in our advice recommended quotas, et cetera, but we have recommended actions that would address [the question of greater participation of women in public life]." Do you stand by your original statement in your note of dissent?

Lady Trimble: I am all for participation by women in public life, I am very much a supporter of participation by women, but I am not sure that it needs to be enshrined in a Bill of Rights in a greater way than participation by men or participation by any other group.

Q81 Mr Murphy: Would you agree though that the Commission have explained that part of their remit was to take forth this issue of lack of participation of women in public life in particular, and that whilst they certainly did not suggest a quota should be introduced, they felt that it should be written in that action needed to be taken; do you think that was a reasonable position for them to take?

Lady Trimble: It is certainly reasonable to look at the question of participation of women in public life, which does lead to some action, but does it need to be enshrined in a fundamental Bill of Rights? Is this something that could be looked at from year to year and changed perhaps from year to year? Does it need to be in what ought to be an absolutely foundational document, that is my --

Q82 Chairman: So what you are saying is you endorse the principle, but you do not believe it needs a statutory statement?

Lady Trimble: Indeed, I would even go further than that, it does not need a statutory statement in what is intended to be a foundational document, which should not be tinkered with on a regular basis.

Q83 David Simpson: If I can just take the first question in relation to the Government's response to this, and I quote from the briefing notes that we received from the Secretary of State: "I am not quite sure that it actually sets Northern Ireland apart from the rest of the United Kingdom, and insofar as it does it raises a whole set of issues about how actually you would implement it without implementing it across the whole of the United Kingdom." So really the question I am coming to is: does Northern Ireland require a Bill of Rights when the whole of the United Kingdom is about to put one forward?

Lady Trimble: In an ideal world, I would see Northern Ireland as having the same rights as the rest of the United Kingdom, and I believe that what we were asked to do was to look and see if there were any specific issues relating to our conflict which might be added into a United Kingdom Bill of Rights, and there was, in my view, a particular small set of rights that might have been achievable, but we have not managed to achieve that.

Q84 Chairman: You would like those bolted on, added to a UK statute, if you had your way?

Lady Trimble: Yes, if any such rights can be identified, and I am not convinced that they have been identified as yet.

Q85 David Simpson: To follow on from that, to deal with the particular circumstances, and again quoting, a significant part of the rationale for proposing a separate Bill of Rights for Northern Ireland was that it should include rights relating to the "particular circumstances of Northern Ireland"; could you tell us how much discussion was there in the Commission meetings of how the phrase "particular circumstances" should be interpreted?

Lady Trimble: There was quite considerable discussion around the meaning of "particular circumstances", but there was also quite a broad division in terms of views as to what the particular circumstances were that should be taken into account, so I cannot say that the Commission ignored the question of "particular circumstances", that would be totally unfair to say that, but in my view, they went much beyond what my interpretation of "particular circumstances" were. But the other thing that did not get mentioned sufficiently in my view was the "mutual respect for the identity and ethos of the two communities and parity of esteem", and in my view, those areas are of equal importance as the "particular circumstances", they are described equally in our remit, and yet they were not given equal value.

Q86 David Simpson: Very briefly, in relation to all the work that the Commission is doing, and I think the Committee Chairman met with representatives of the Commission in the Assembly, and I put the same question to them: if when the report is finished, and there is a paper put before the Assembly or the Executive, if they reject it, does that mean that Bill of Rights for Northern Ireland is dead in the water?

Lady Trimble: Well, the remit referred to Westminster legislation, but I would find it very difficult to believe that Westminster would enact legislation if the Assembly had turned it down, so to speak.

Q87 Chairman: I think we would find that a little difficult to envisage as well. Further to one of Mr Simpson's very important questions, you talked about the discussion within the Commission, and the divisions, perfectly honest, honourable divisions; were those meetings minuted, and if so, are the minutes available?

Lady Trimble: The meetings were minuted, and the record of discussions was taken. I have not brought the minutes with me.

Q88 Chairman: No, of course not.

Lady Trimble: But they certainly were minuted within the Commission.

Q89 Chairman: This would be something that our Committee could have a look at, obviously?

Lady Trimble: Yes, sometimes the minutes were, how shall I say, the minutes may not have reflected the entirety of the discussion. The minutes were shortish, shall we say.

Q90 Chairman: We are well aware of cabinet minutes, for instance, which will record a decision, but not necessarily the discussion leading up to the decision. Do you feel that at all times, when you were discussing these matters with your fellow Commissioners, that you were given adequate and proper opportunity to express your doubts and misgivings?

Lady Trimble: I certainly did express them. There was no attempt to stifle me.

Q91 Chairman: I should think that would be pretty difficult anyhow, but could I move on then to Dr McDonnell?

Lady Trimble: Sorry, except once, when we were discussing the equality provision, I was cut off in mid sentence.

Q92 Chairman: Oh really? Was that because it was a long sentence?

Lady Trimble: It was because I was going down a route that perhaps others in the Commission did not want to go down, but that was the only time when I was cut off in my prime, so to speak.

Q93 Dr McDonnell: I am trying to get my head around -- because I am not still fully clear, what I would like to ask you is: do you reject all of the proposals? You have indicated that you are committed to human rights and to the Commission; do you reject all of the stuff that they produced broadly, or is it just some parts of it you object to, some parts of the advice they gave?

Lady Trimble: There are some good elements in the report, but I objected to the entirety of the report, because if you look at the proposals around implementation and amendment and the question of standing, I felt that I could not agree to those elements, and those elements read back to the entirety of the substantive proposals. For example, the bill was to be enacted by Westminster, but the suggestion was that it could be amended jointly by Westminster and a cross-community vote of the Assembly. Now I felt that I could not support that, and that would apply to not just the supplementary proposals, but to the entirety of the current contents of the Human Rights Act, because the proposal was that it would be re-enacted as a Bill of Rights which incorporated the current sections of the Human Rights Act together with the supplementary sections. The amendment proposals would attach to both the existing and the new provisions. As well as that, there was a question of standing of people who would be enabled to go to court, and under the Human Rights Act, a person needs to be a victim or a perceived victim of a human rights abuse in order to go to court, the 2007 Justice And Security Act gave the Northern Ireland Human Rights Commission the opportunity to do likewise, but the new Bill would actually allow "any person or body who has a sufficient interest in the matter may bring legal proceedings" claiming that a public authority has acted incompatibly with the Bill of Rights for Northern Ireland. Now to me, that goes so far beyond -- that allows not just the Human Rights Commission, but it allows people like NGOs to bring an action which in the rest of the UK is restricted to a victim. So it is not just the courts interfering in what in my view ought to be the remit of Parliament or the Assembly, but it is allowing other people to bring the action before the courts, and to be specific about what they can do to bring, say, a case about housing.

Q94 Chairman: Do you fear it could encourage frivolous or vexatious or inconsequential and trivial complaints?

Lady Trimble: Not so much frivolous or vexatious, but that it might prevent the Executive from having certainty in terms of their policies, that is really the point that I have.

Q95 Dr McDonnell: Just to follow on with the broad thrusts, you indicated that you agreed with the broad thrust of the Bill, the broad principles of the Bill, and some of the aspects of it. Are you happy enough with the proposals on the rights of victims of crime, for instance, are those acceptable enough? I am trying to just tease out what bits of it might work.

Lady Trimble: Yes, we did discuss victims at some length, and we started off talking about victims of the conflict in Northern Ireland, and how you might include them in a Bill of Rights. We actually came to the view that there was nothing that they, as victims of the conflict, could gain from being in a Bill of Rights, because how do you give them a right which is not given to other people? So I am about to say yes to you, but I just -- yes. The third element on the victims issue, which is legislation must be enacted to recognise all the victims of the Northern Ireland conflict, and to ensure that their rights are protected, these rights include rights to redress and to "appropriate material, medical, psychological and social assistance"; that is terribly wide, and I feel that that possibly goes beyond what I would feel appropriate. The right to be informed about the progress of an investigation and relevant legal proceedings, that seems fair enough, but I would like to see teased out exactly what the implications of each of these would be, so that I could have a clear picture of precisely what that would involve, and as I have no doubt people in the Secretary of State's office are doing before they come up with a consultation.

Q96 Dr McDonnell: I am thinking more in terms of victims of crime generally, rather than just victims of the conflict, but again, just to take another example, are you happy enough with the right to be free from violence, exploitation or harassment that is contained in the document, or is that too loose as well?

Lady Trimble: I think everyone wants to be free from violence, harassment and so on. The question that I have is just how does that translate into an enforceable or justiciable right, and I do not have answers to some of these questions.

Q97 Dr McDonnell: Could I maybe tease it on a bit further? Broadly you are telling us, and I accept that, that you see the need for a Bill of Rights; you dissented, at what point did you feel the need to dissent? Was it early, middle or at a late stage in the proceedings?

Lady Trimble: As we progressed through our discussions, and it was late September before we were coming on to the socio-economic rights and the implementation areas, so it was around then that I started to become uneasy, and at the beginning of November, I wrote to the Chief Commissioner and said that it might be necessary for me to seek a minority report, and just to give her a heads-up as to where I was coming from.

Q98 Dr McDonnell: Did you, in that note of dissent, make any suggestions or give any alternatives in terms of what might be included in the Bill or how it might be rewritten, in terms of narrowing some of the points?

Lady Trimble: I did not make specific suggestions, because I do find that this is a terribly difficult area. I felt that what was intended that we should be looking at would be areas around freedom of assembly, on which we made no suggestion whatsoever; the areas of language, where we made some suggestions; culture and identity; and education. On education, this has been an area of some difficulty within Northern Ireland, but we did not come up with any earth-shattering suggestion around education, because as we discussed the difficulties around education in Northern Ireland, we found that we could not actually come up with something that could be put in a Bill of Rights, that would resolve any of our difficulties.

Q99 Dr McDonnell: You mentioned there just the right to assembly, and you felt that was not included. Is there anything else broader than just the parading and flags issues that you felt --

Lady Trimble: Those are issues which go to the heart of some of the difficulties that have surrounded us in Northern Ireland, so those would be areas that could be discussed. Whether, after discussion, you would come up with something that should be in a Bill of Rights, I do not know.

Q100 Chairman: But what would you advocate? Would you advocate the enshrining of the right to march and parade, or would you think that that is not something that should be in a Bill, just as you said you did not think the advancement of women's rights should be in the Bill?

Lady Trimble: Indeed. The more I looked at the European Convention on Human Rights, the more I thought, well, this is not bad.

Q101 Mr Hepburn: Lady Trimble, you are on record as saying that the Commission's proposals for amending a future Bill of Rights basically makes it unamendable. Can you explain your logic in that?

Lady Trimble: Well, if a Bill can only be amended by a procedure which would involve legislation at Westminster and a cross-community vote in the Assembly, I am afraid the assumption of those who are making that proposal was that there would not be cross-community support from the Assembly, so that that support might not be forthcoming.

Q102 Chairman: There has been some dispute between you and Professor McWilliams about the status of your minority report. She refuses to accept that it is a minority report. What do you say to that?

Lady Trimble: Well, technically, of course, it is not a minority report, it was not appended to the report. I and my fellow dissenter asked for permission to have a minority report put into the report, in the way that the Standing Advisory Commission on Human Rights had done for at least three reports, and that consent was refused. So clearly, there was not and cannot have been a minority report. What I published, I described as a note of dissent, I think the terminology is probably neither here nor there, to some degree, it is the content of what I said that matters.

Q103 Chairman: In the six or seven months that have passed, have you been able to gauge the feeling and how much support there is for the propositions you advanced as distinct from the proposition advanced in the official report?

Lady Trimble: Well, I found that rather difficult. I do speak to people, and some people have indicated their support to me.

Q104 Chairman: Yes, but did you get a great fan mail saying, "Well done, Lady Trimble"?

Lady Trimble: A small fan mail. No, my note of dissent did not get circulated with the report.

Q105 Chairman: No, I appreciate that.

Lady Trimble: So it has, in truth, not been seen by very many people.

Q106 Chairman: This is a very subjective question and a subjective answer, inevitably, but was it well reported in your view in the Northern Ireland press?

Lady Trimble: The fact of my dissent was reported widely in the Northern Ireland press.

Q107 Chairman: But not the content?

Lady Trimble: Not the contents.

Q108 Chairman: Did you write any articles, remind me, for the Northern Ireland papers?

Lady Trimble: No, I did not write any articles. I felt that in terms of relationships within the Commission, I should just -- I gave my note of dissent to the Secretary of State, circulated it to a small number of people, and that I should just leave it at that.

Q109 Chairman: Do you think the impact of your views, to which you clearly attach great importance, and that is right that you should, would have been greater had you resigned?

Lady Trimble: I am not sure that I can answer that question easily. I felt it was important to stay within the Commission because the Bill of Rights work is not the only work within the Commission, there is a lot of other work there, which is very good work, to which I feel I can make a major contribution, so I do not feel that this was necessarily a resigning matter for me. I would have been more than contented to have had my views tucked in at the back of the report, and to have just let them go out into the world --

Q110 Chairman: But the fact is they were not, so rather than be more than contented, you are less than contented?

Lady Trimble: Yes.

Q111 Chairman: Where do we go from here then, Lady Trimble?

Lady Trimble: Well, this is now for the Government to decide what it is going to do, and I do understand that the Government proposes to have a consultation, that it will consult on its own proposals, not on the advice from the Human Rights Commission. I also understand that the timescale of such consultation is -- we in the Commission had at one stage been given a potential date of early spring, and then late spring, and then early summer, and we are now at the beginning of July, and I am not getting any feeling that this is going to come before the recess.

Q112 Chairman: This Committee, of course, will be making a report, and we will have to say what we think about -- because this is Westminster legislation we are concerned with, as you appreciate. I think the general feeling is that we would not feel it was very practical to go forward if there was widespread dissent in Northern Ireland, but we will have to deliberate on this. What would it be your hope that this Committee should say when we report to Parliament and send our report to the Secretary of State, that there should be a Bill of Rights but it should be tightly drawn, and should not be in any way in conflict with what exists in the rest of the UK; that really on balance it is better not to have any report at all; or that having made your note of dissent and remained on the Commission, you are content for the Commission's views to prevail. What would you like us to come out and say? This does not guarantee we will, of course.

Lady Trimble: Yes, I think that what I would like to see is -- and here I pause to collect my thoughts. I feel that the 80 statutory proposals are so wide that they will be quite divisive within Northern Ireland, so I think a tightly drawn Bill of Rights which would be subsidiary or an appendage, if you like, to a UK wide Bill of Rights, would be the most appropriate thing to come up with in the end.

Chairman: That is very clear, and that is very helpful, and the Committee will obviously take that view very, very carefully into account. Are there any further questions any colleague wishes to put?

Q113 Dr McDonnell: Just for clarification, in the light of your later questions there, Chairman, I just wanted to follow through as to the position -- obviously you did not resign. You felt that nevertheless the Commission acted ultra vires at the time?

Lady Trimble: Yes, I felt they acted beyond the remit, beyond that specific remit that relates back to the Agreement, and the Agreement is something that I hold very dear.

Q114 Dr McDonnell: Do you feel comfortable remaining on the organisation and involved in the organisation, or do you feel that you have been marginalised or excluded as a result of that?

Lady Trimble: Well, there clearly have been differences within the Commission, and there have been robust discussions, but I do not feel that I thereby feel obliged to resign from the Commission.

Q115 Dr McDonnell: So you feel comfortable. The other thing I would like to clear, Chairman, is very simply: while Lady Trimble has given us evidence here very eloquently and all the rest, Jonathan Bell is mentioned; is he dissenting in conjunction with you, or on his own bat, or where does he fit in? Are there two of you, or are there two separate ones of you coming at different angles? Did he, for instance, agree with your dissenting note at the time?

Lady Trimble: Had we been permitted to have a minority report, he and I would have worked together to come up with an agreed text. We were not permitted that, so he came up with his own note of dissent, which differs from mine in some degrees, but we are generally singing from the same hymn tune, if you like.

Q116 Dr McDonnell: But you are presenting evidence here on your own behalf?

Lady Trimble: Solely on my own behalf.

Q117 Mr Grogan: Just to clarify, so you have indicated that you may see circumstances, in the particular circumstances of Northern Ireland, where an appendage to a UK Bill of Rights would have some advantages, and you have indicated some of the areas; you mentioned education, right of assembly, I think perhaps identity and culture, that it may apply, but is your position that no one yet has written the words or come up with the phrases that would give substance to those aspirations?

Lady Trimble: Yes, in the main, yes, that is my position. On the question of identity and culture, we have a proposal that people can identify themselves as British or Irish or both, and that actually went into the report at my request and others agreed with it. So I am comfortable with that, but there may well be other areas where there could be something that is specific to Northern Ireland which we have not got in any agreed wording.

Q118 Chairman: Thank you very much. Is there anything you would finally like to say to the Committee, Lady Trimble?

Lady Trimble: No, Sir Patrick, thank you for your courtesy in listening to me.

Chairman: We are very grateful to you, this is an important subject, and it is one on which the Committee must form a view, and in forming that view, we shall take carefully into account obviously what your fellow Commissioners have said, but what you have said as well, and we will try and come up with a report that makes some practical and workable and sensible suggestions, and suggestions that would commend themselves as being constructive to those in the Assembly who have to try and come to a collective view at some stage. We are very grateful to you, thank you very, very much indeed, and that concludes the session. I thank all my colleagues for taking part.