Joint Committee On Human Rights Written Evidence


2. Memorandum from the Northern Ireland Human Rights Commission (NIHRC)

QUESTIONS FROM THE JOINT PARLIAMENTARY COMMITTEE

THE BILL OF RIGHTS PROCESS

How does the Human Rights Commission see the Bill of Rights process developing from now until submission of the final draft to the Secretary of State?

  The Commission held a consultative meeting on this matter, attended by over 100 people, on 2 December 2002. Commissioners and staff then met on 6 and 7 December to consider what was said at that event and to discuss how best to proceed with the development of the Bill of Rights process. At the end of that discussion the Commissioners decided that a letter should be sent to the political parties in Northern Ireland explaining how the Commission intended to proceed and that a further letter (not as detailed concerning the prospective engagement with political parties) should be sent to others who attended the event on 2 December or who were invited to it. Once the political parties, in particular, have had a chance to respond to the suggestions made in the letter, the Commission will issue a press statement giving notice of its intentions.

  For the benefit of the Committee, the main part of the letter sent to the political parties on 11 December is set out below:

    "Taking into account the points made at the Malone House meeting, we have decided to proceed with our work on a Bill of Rights in the following manner.

    —  Commissioners will continue to meet to discuss particular types of issues dealt with in submissions already made to the Commission in response to its consultation document Making a Bill of Rights for Northern Ireland.

    —  Early in the New Year the Commission will publish a summary of the hundreds of submissions made to the Commission to date.

    —  Building on its commitment to engage with political parties, the Commission will encourage the parties in Northern Ireland to set up a comprehensive roundtable process on a Bill of Rights and will itself participate in that process. We would see such a process operating within agreed parameters—still to be discussed in more detail—which might include the following:

      —  it would be open to all political parties in Northern Ireland;

      —  it would make acceptable provision for participation by others, including non-governmental organisations, churches, trade unions and the Commission itself;

      —  it would be underpinned by the provision of appropriate resources;

      —  it would be chaired by an agreed appropriate chairperson;

      —  it would operate in accordance with agreed rules of procedures; and

      —  the Commission would take receipt of the conclusions of the process in advance of giving its final advice to the Secretary of State.

    —  The Commission will hold a series of information and focussed discussion sessions on the "key" issues listed at the event on 2 December (set out in the Annex to this letter). The objectives of these sessions will be to:

      —  help build capacity to debate the key issues among different sectors of society in Northern Ireland;

      —  provide accessible information about the pros and cons of some possible approaches to the key issues;

      —  bring people together for debate; and

      —  inform Commissioners as to how people and groups in Northern Ireland are thinking about these key issues.

    —  The Commission will seek, and disseminate, the views and experience of experts from other countries and international organisations.

    —  To facilitate the information and discussion sessions mentioned above the Commission will produce various papers which will explain and explore the issues at stake in an accessible way. These should help participants in the sessions to discuss the issues in an informed and respectful manner.

    The Commission would very much welcome your party's views on how we are proposing to proceed and would like to meet with you to discuss the matter. It would be particularly helpful to hear back from you before 13 January 2003, the date of our next Commission meeting."

How, in the Commission's view, should the process be taken forward following its submission of its final Draft Bill of Rights to the Secretary of State?

  The Commission hopes that, after it has submitted its final Draft Bill of Rights to the Secretary of State, the UK government will take forward the process quickly and supportively. It is also the Commission's hope that it will be able to submit to the Secretary of State a Draft Bill of Rights which already has a broad measure of support amongst the political parties in Northern Ireland as well as amongst many elements of civic society there, including the voluntary and community sectors of society. The Commission hopes that such a broadly backed Draft Bill of Rights will allow the UK government to proceed with its enactment almost immediately. We do not think it will be necessary for the government to delay the process further by publishing, for example, a White Paper on the topic. The Commission's own consultation process on the Bill of Rights, as the government itself has acknowledged, has already been very deep and wide.

  It would be helpful if the Draft Bill of Rights could be considered in detail by the Northern Ireland Assembly prior to any debates in the Westminster Parliament. This is already the practice regarding other Westminster Bills and proposed Orders in Council intended to apply only in Northern Ireland. Assembly support for the Bill of Rights will, we hope, make its passage through Westminster much easier.

Following submission of its final advice, how does the Human Rights Commission see its continuing role in relation to the Bill of Rights?

  The Human Rights Commission envisages having to continue to lobby (locally, nationally and internationally) for the acceptance and enactment of its final advice. It will also have to continue to publicise its advice within Northern Ireland and to seek to garner local support for the acceptance and implementation of the advice. If and when a Bill of Rights is eventually enacted the Commission sees itself as the body best placed to monitor its operation.

ECONOMIC AND SOCIAL RIGHTS

How does the Commission respond to criticism of the draft Bill of Rights, that the provisions on economic and social rights do not provide sufficiently substantial protection?

  The inclusion and formulation of protection for social and economic rights has been one of the most difficult issues for the Commission. The Commission has received a number of submissions to the effect that the protection of social and economic rights in Northern Ireland as opposed to the whole of the United Kingdom does not fall easily within the criteria of the "particular circumstances of Northern Ireland". On the other hand it is clear from many other submissions and from the Commission's public opinion surveys that most people in Northern Ireland regard the protection of rights to education, health and housing as an essential part of an effective Bill of Rights.

  The formulation which the Commission included in its consultation document is an attempt to reflect the current international standards which deal with most social and economic rights on a programmatic basis, to be achieved progressively within the available resources, while taking account of the particular circumstance that the allocation of resources on most social and economic issues in Northern Ireland is a devolved power. Some Commissioners did want to go further than this draft and there were some healthy debates about the relative pros and cons of different positions. But there does seem to be consensus within the Commission that the consultation document's formulation does not fall short of existing international standards, notably those in the International Covenant on Economic, Social and Cultural Rights, because it would impose an enforceable obligation on the government and public bodies in Northern Ireland to develop and implement programmes for the delivery of specific economic and social rights, as well as avoiding any discrimination in so doing.

  The Commission's consultation document proposes that the non-ECHR rights it contains may be limited "only to the extent that the limitation is prescribed by law, reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors". This is based almost exactly on section 36 of South Africa's Bill of Rights, widely acknowledged to be the best in the world. Recent decisions by South Africa's Constitutional Court (the Grootboom case on the right to housing and the Nevaripene case on the right to health care) show that the limitation clause does not prevent the judges sending clear messages to the Government as to how public money should be spent to protect social and economic rights. That is precisely the kind of judicial enforcement which the NIHRC's draft Bill of Rights would allow for.

  The Commission is satisfied that its initial proposals have assisted in clarifying the debate on this important issue. The Commission has identified it as one of the key issues on which further detailed discussion among the political parties and key constituencies will be essential to arrive at a sufficient degree of consensus to ensure that an effective provision is included in the Bill. The eventual outcome of the debate will of course depend, here as in other matters, on the attitude of the major political parties in Northern Ireland and of the British and Irish Governments.

STATUS OF THE BILL OF RIGHTS

How important are effective enforcement mechanisms to the Bill of Rights? Would there be any benefit in a Bill of Rights that was declaratory only?

  The Human Rights Commission believes that effective enforcement mechanisms are crucial for the Bill of Rights. Commissioners have already agreed that the Bill of Rights it recommends should have at least the same status as the Human Rights Act 1998. In other words, we envisage the Bill of Rights being a "superior" law which would permit judges and other enforcement agencies to disregard other laws (unless they were in Acts of the Westminster Parliament) that are incompatible with the Bill of Rights. The Commission has still to come to a final view on whether the enforcement mechanisms at present contained in the Human Rights Act 1998—if transplanted to the Bill of Rights and modified accordingly—would make the Bill of Rights effective.

  The Commission sees no benefit in having a Bill of Rights that was declaratory only. That is not the kind of Bill of Rights envisaged by the Belfast (Good Friday) Agreement.

THE BILL OF RIGHTS AND THE HUMAN RIGHTS ACT

Are there any potential conflicts between a Northern Ireland Bill of Rights and the Human Rights Act? How might any such difficulties be resolved?

  The Human Rights Commission has so far striven hard to ensure that there is no conflict between its advice on a Northern Ireland Bill of Rights and the Human Rights Act. The Belfast (Good Friday) Agreement presupposes that there will be no such conflict because it talks of the Bill of Rights comprising the rights in the European Convention on Human Rights plus the supplementary rights identified by the Commission. The Commission has been proceeding on the basis that there is nothing in the European Convention which prevents a state within the Council of Europe from protecting rights to a greater extent than that currently required by the Convention. This is already the case in Northern Ireland as regards the right not to be discriminated against on grounds of religious belief or political opinion when one is applying for employment.

  If on occasions the Northern Ireland Bill of Rights strikes a slightly different balance between individual rights and the rights of society from that struck by the European Convention as interpreted by the European Court, this is very likely to be within the "margin of appreciation" accorded to member states of the Council of Europe.


THE NORTHERN IRELAND BILL OF RIGHTS AND THE UK?

Has the Commission considered the influence or impact which a Northern Ireland Bill of Rights might have on the law, practice and culture of the UK as a whole?

  The Northern Ireland context is rather different from that applying elsewhere in the UK, even though there are some shared characteristics. The different political allegiances of the two main communities here is the feature which affects virtually everything. The Commission would therefore be acting outside its brief if it allowed the potential influence of a Northern Ireland Bill of Rights on the rest of the UK (or indeed on the Republic of Ireland) to affect unduly the advice it gives to the Secretary of State for Northern Ireland.

  Nevertheless the Human Rights Commission is of course aware of the potential influence or impact which a Northern Ireland Bill of Rights might have on the UK as a whole. Although the Northern Ireland Bill of Rights will reflect the particular circumstances of Northern Ireland, some of those circumstances are not unique to Northern Ireland but are shared by other parts of the UK, so there is therefore a good argument for protecting some of the rights in question throughout the UK. In so far as the Bill of Rights will draw upon and give effect in Northern Ireland to international obligations which the UK government has already signed up to, there is even greater justification for enacting broadly similar legislation for the other UK jurisdictions, taking account of their particular circumstances.

Are there any difficulties with the potential application of differential standards in Northern Ireland and the rest of the UK?

  The people of Northern Ireland live within a separate legal system from those of England and Wales or Scotland. The laws in the separate jurisdictions are often different. This has long been the case, for example, as regards discrimination law, anti-terrorism law and abortion law. At times the House of Lords, as the supreme court for the UK, has had to adjudicate in cases originating in Northern Ireland even though the law at issue is different from that in other parts of the UK. There has to date been no difficulty in according different rights to the people of Northern Ireland (whether greater or lesser than those accorded to people elsewhere in the UK) provided that the level of protection does not fall below that required by the European Convention.

10 January 2003


 
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