British Irish Rights Watch

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MAKING A BILL OF RIGHTS

FOR NORTHERN IRELAND

A CONSULTATION BY THE

NORTHERN IRELAND HUMAN RIGHTS COMMISSION

Published September 2001

ISBN 1 903681 18 9

Northern Ireland Human Rights Commission

Temple Court

39 North Street

Belfast BT1 1NA

Tel: 028 9024 3987

Fax: 028 9024 7844

Email: nihrc@belfast.org.uk

Website: www.nihrc.org

CONTENTS

PART 1 Background and context

A. Introduction 1

The Commission’s consultation process 4

C. The Commission’s mandate 8

PART 2 The proposed rights

Preamble 12
Democratic rights 15
Rights concerning identity and communities 19
Equality and non-discrimination 25
The rights of women 31
Rights to life, freedom from torture, inhuman or degrading treatment

or punishment, freedom from slavery and freedom from forced labour 36

7. Criminal justice and administrative justice 40

8. The rights of victims 50

9. Rights to family life and private life 54

10. The rights of children 56

11. Education rights 66

12. Rights to freedom of thought, expression, information and association 71

13. Language rights 73

14. Social, economic and environmental rights 78

15. Interpretation 87

16. Limitations 89

17. Emergencies 91

18. Enforcement 94

19. Entrenchment and amendment 100

PART 3 Appendices

Appendix 1: Clauses for consultation 104

Appendix 2: Questions for consideration 129

Appendix 3: Additional Protocols to the European Convention on Human Rights 132

Appendix 4: Glossary of terms 136

Appendix 5. Selected references 141

Appendix 6: Organisations which made submissions to the consultation process 145

There is a long history of demands for a Bill of Rights for Northern Ireland and prior to the current peace process there was consensus among the main political parties that a Bill of Rights for Northern Ireland would be a good thing. The Belfast (Good Friday) Agreement 1998 also indicated that a Bill of Rights should form part of a lasting settlement. The Secretary of State’s request to the Northern Ireland Human Rights Commission – under the terms of the Agreement and the Northern Ireland Act 1998 – to consult and advise the Secretary of State on the scope for such a Bill, is an important part of the settlement. But it is only a part. The final delivery of an effective and appropriate Bill of Rights is a matter for all those involved in the search for long-term peace and stability in Northern Ireland – the two governments, the political parties, civic society and indeed all the people of Northern Ireland.

The purpose of a Bill of Rights is to establish and guarantee the relationship between the state and its citizens. That means setting some limits to the powers of the Government and of public bodies to control the lives of ordinary people. That was the main focus of the most famous national bills of rights, such as the English Bill of Rights of 1688, the French Declaration of the Rights of Man and the Citizen of 1789 and the American Bill of Rights of 1791.

But a modern bill of rights should also set some more positive requirements for the Government, such as ensuring equality for all under the law, protecting everyone against discrimination and guaranteeing some essential public services. This is the focus of the increasing number of international human rights documents which now set the standard for national bills of rights. It is also the focus of the recent Charter of Rights and Fundamental Freedoms in Canada (1982) and of the Bill of Rights of South Africa (1996).

In a divided and multi-cultural society like Northern Ireland there will also be a need to establish and guarantee the rights of members of each community to equality and fair treatment and to ensure effective participation in government for all sections of the community.

None of this will make much difference unless the rights included can actually be relied upon by ordinary people, in particular by the most marginalised and disadvantaged members of the community who need them most. Effective provisions for dealing with individual complaints and for enforcement are therefore as essential as the rights themselves.

It should be remembered, of course, that a Bill of Rights cannot cure all ills. It merely provides a set of minimum standards. The effective protection of rights requires additional rights-based legislation and enforcement mechanisms. Furthermore, the protection of rights often involves a balancing exercise: as well as claiming our own rights we owe a responsibility to allow other people to claim theirs.

A Bill of Rights should not be thought of as just another piece of legislation to achieve a particular objective. It should set general standards against which all kinds of ordinary legislation and activity by the Government are to be judged. It should therefore be drafted in general terms, setting out basic principles for how the Government should operate but allowing a good deal of flexibility for the way in which the principles are implemented. It should also allow for changing interpretation as time passes and circumstances change. Finally it should be given a special constitutional status and special procedures for any future amendment so that the rights it protects cannot be chiseled away by future law-makers.

The Belfast (Good Friday) Agreement 1998 (the Agreement) sets some additional objectives for the Northern Ireland Bill of Rights. It is to provide rights that are not already guaranteed in the European Convention on Human Rights. It must also reflect the particular circumstances of Northern Ireland and provide effective guarantees for the rights of all its peoples and communities. So it must recognise and guarantee parity of treatment and esteem for members of the two main communities. But it must also avoid the risk of institutionalising the division between these communities. And it must protect the rights of members of smaller communities and of those who do not want to be treated as belonging to any particular community. Finally it must take account of the possibility that there could be constitutional change in Northern Ireland by consensus. The British and Irish Governments have each committed themselves to protecting the rights of all persons living in Northern Ireland as well as the identity, ethos and aspirations of both “main communities”.

The Northern Ireland Human Rights Commission has enthusiastically undertaken the task given to it under the Agreement (and the Northern Ireland Act 1998, section 69(7)) of consulting and advising the Government on what should be included in the proposed Bill of Rights. It believes that a Bill of Rights is an essential building block in the peace process in Northern Ireland and that it has the potential to be a rallying point for all sections of the community regardless of their political beliefs or past grievances. That means that it must make a real difference to the lives of everyone in Northern Ireland – young and old, rich and poor, long established and newly arrived.

The Commission has also been inspired by the pronouncements on human rights contained in the Northern Ireland Executive’s Programme for Government 2001-2004. We welcome the statement, for example, that the Executive is committed to policies “which actively promote equality of opportunity and adhere to international standards of human Rights”. (p8)

The consultation process on the Bill of Rights to date has been extremely valuable in itself. The Human Rights Commission wants the Bill of Rights to emerge from a process, not to be imposed from on high. We want the people of Northern Ireland to feel that, having helped to mould the Bill of Rights, they own it and that it is a document which could be a basic foundation stone for a stable future.

The purpose of this consultation paper is to draw on the many submissions the Commission has already received and to set out the Commission’s initial views on what rights a Bill of Rights should include and how they could be enforced. On some issues the Commission has reached provisional conclusions. On others it has not yet made up its mind and has therefore set out what it sees as the main options. But it wants to have your views on all the issues involved before it makes its final recommendations to the Government.

From almost the day of its creation in March 1999 the Northern Ireland Human Rights Commission has promised to conduct a very deep and broad consultation process relating to the proposed Bill of Rights for Northern Ireland. The process was officially launched on 1 March 2000, the first birthday of the Commission, with high profile events in Belfast and Derry / Londonderry addressed by Mr Brian Keenan, the writer and former Beirut hostage. During the succeeding 12 months the Commission undertook a series of measures to canvas views on the Bill of Rights. These included the following:

· Training sessions for over 400 potential trainers. Many of these trainers have then been involved in spreading awareness of the Bill of Rights consultation within their own communities or organisations. There have been countless workshops, discussion groups and information events.

· The production of a training video. This 30-minute video outlines the history of human rights protection internationally and explains in particular the European Convention on Human Rights. It goes on to stimulate ideas as to what rights additional to those in that Convention may still need to be better protected in Northern Ireland.

· The production of a trainers’ manual. The manual contains a number of exercises which people can undertake when attending training sessions. They are designed to make people think about their current rights and what extra rights they need but do not yet have.

· The publication of 11 explanatory pamphlets. As well as an Introduction to the Bill of Rights, and one on Implementation issues, these pamphlets covered Children and Young People, Criminal Justice, Culture and Identity, Education, Equality, Language, Social and Economic Rights, Victims and Women. They have been widely distributed and have provoked a great deal of discussion around the various questions posed in each of them. Comment sheets were included in each pamphlet to make it easier for readers to send their views on particular rights to the Commission.

· The establishment of nine advisory Working Groups on different types of rights. These were chaired by, and were almost entirely composed of, persons from outside the Commission. They operated independently from the Commission and within three or four months submitted advisory reports to the Commission, which were collectively published in January 2001, when the Groups were disbanded. The Working Groups covered Children and Young People, Criminal Justice, Culture and Identity, Education, Equality, Implementation issues, Language, Social and Economic Rights and Victims’ Rights.

· Meetings with representatives of political parties. Nearly every party has met with the Commission, some on several occasions. A small number have refused to do so, but the Commission is still hopeful that they will submit their views on the Bill of Rights in the near future. Several presentations have been made to district councils.

· Meetings with numerous other interest groups. A large number of these meetings have taken place throughout Northern Ireland. They have included many meetings with victims’ groups, church groups, community groups and statutory bodies.

· Attendance at conferences and seminars. The Commission has spoken at numerous such events in order to explain the way in which it is going about its consultation process and what a Bill of Rights could eventually mean for everyone in Northern Ireland.

· Addresses by the President of the Constitutional Court of South Africa. Judge Arthur Chaskalson visited Northern Ireland as the guest of the Commission in December 2000. He spoke at several events where he explained how important South Africa’s Bill of Rights had been to the establishment of a more harmonious and tolerant society.

By the end of February 2001 – the initial deadline for receipt of comments – the Commission had received over 130 written submissions on what should be contained in the Bill of Rights. More than 85 further submissions were received between March and July 2001. A list of the organisations that made submissions can be found in Appendix 6 of this consultation document.

The Commission was enormously impressed by the work which had gone into the submissions received. What shone out above all else was the excitement at the prospect of a Bill of Rights actually becoming part of our law. Nearly every comment we received was positive and enthusiastic.

The Commission acknowledges the assistance it has received from the submissions, the Working Groups whose members gave their time and expertise voluntarily, and its many meetings, informal and formal, with organisations, groups and individuals. The Commission is grateful to everyone involved in the drafting process of this consultation document. The participation of Brian Keenan, Arthur Chaskalson and Albie Sachs has been particularly inspiring.

During the past three months members of the Commission have carefully considered all the submissions and have discussed at length what should go into the Commission’s preliminary advice to the Secretary of State. This document represents the fruits of those considerations and discussions. Not all of the proposals in the document have been unanimously agreed within the Commission – on some matters one or two Commissioners have reserved their position – and the Commission would now welcome a lively debate on the proposals within the community at large.

This document is being published at this stage so that members of the public can examine its contents and respond to the Commission with their views before 1 December 2001. You can respond by contacting the Commission by post, email, telephone or fax. Our contact details are as follows:

The consultation document has been set out in three parts. Part 1 provides the background and context to the Commission’s Bill of Rights project. Part 2 contains 19 chapters on different types of rights which the Commission believes could be better protected by a Bill of Rights for Northern Ireland. Part 3 provides a series of appendices for reference or for additional information.

Part 1 describes the origin and intentions of the document and is a necessary induction to responding to its recommendations.

In Part 2, each chapter begins by looking at existing law or rights, whether enshrined in legislation or protected by the European Convention on Human Rights or other international human rights documents. The Convention’s Articles are identified by numbers in square brackets. The chapters then explain the Commission’s approach to each of the topics and set out, in colour, the clauses recommended for inclusion in the Bill of Rights which are supplementary to those in the European Convention. The chapters also explore some of the implications of adopting the clauses in question.

All of the Commission’s proposed supplementary clauses, together with relevant European Convention rights, can be read in their entirety in Appendix 1 – clauses for consultation. This is, in effect, the list of rights that could be protected in a Bill of Rights for Northern Ireland.

Appendix 2 lists the questions, 1 to 45, which are posed throughout the text. These questions are designed to help you to respond, not in any way to curtail debate. However, they reflect concerns expressed during the consultation process to date and if in your response you can refer to some or all of the points raised it would be helpful.

Appendix 3 sets out the rights protected by the Protocols to the European Convention on Human Rights which have not yet been ratified by the UK Government and which are therefore not yet effective in Northern Ireland. The Commission has not yet made a decision on whether these unratified Protocols should be included in its final advice on the Bill of Rights. It would welcome views on this matter.

An explanation of key technical words and phrases used in the document is given in

Appendix 4, the glossary of terms. This should be a useful reference point when you are considering the recommendations and preparing a response.

Appendix 5 lists the international instruments which have influenced the Commission’s thinking to date and the legislation, cases and research which have been relevant to the production of this draft advice.

Appendix 6 lists the organisations which made a formal submission to the Commission during the first phase of consultation. Copies of these submissions are available for review in the Commission’s library.

Further copies of this consultation document can be supplied free of charge. It can also be made available in a range of formats, including large-type, Braille, audio-tape and floppy disk. A version for children will be available. A summary of the document will be available in English, Irish, Ulster-Scots, and Cantonese. This consultation document is also available on the Commission’s website: www.nihrc.org.

Throughout the consultation period the Commission will be actively promoting debate around this document and will be organising public and private events and seminars, conferences and training sessions and hopefully more creative opportunities for as many people as possible, all over Northern Ireland, to take part in this consultation process and to contribute to the eventual outcome of our deliberations.

The Commission will reflect on the responses it receives to this document before formulating its final advice to the Secretary of State in February 2002. The Secretary of State will then have to decide which parts of the advice to accept and will in due course announce how and when the UK Government would go about enacting any necessary legislation.

The Commission will continue to press the Government to accept its advice after the final document is submitted in February 2002. We would like the necessary legislation to be debated in Parliament as soon as possible thereafter and we hope there will be little or no delay in bringing the agreed legislation into force. The Commission will be active in organising events around the Bill of Rights consultation so as to keep the project in the public eye throughout 2002 and into 2003 if necessary. We expect to be actively engaging with Government Ministers and officials during that period too.

In the Belfast (Good Friday) Agreement of 10 April 1998 there is a section headed “Rights, Safeguards and Equality of Opportunity”. In paragraph 4 of that section, under the sub-heading “UK legislation”, provision is made for a Bill of Rights for Northern Ireland. It reads as follows:

“The new Northern Ireland 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, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland. Among the issues for consideration by the Commission will be:

• the formulation of a general obligation on Government and public bodies fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland; and

• a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors.”

The Northern Ireland Human Rights Commission was formally established by the Northern Ireland Act 1998 and section 69(7) of that Act required the Secretary of State to request the Commission to provide advice of the kind referred to in the above paragraph. In March 1999 the then Secretary of State for Northern Ireland, Dr Marjorie Mowlam, duly wrote to the Commission to ask it to consult and advise in accordance with the paragraph. The Commission has been working on the project ever since. It officially launched its consultation process in March 2000 and the present consultation document represents the Commission’s preliminary advice to the UK Government. After the Commission has considered responses to this consultation document it will issue its final advice to the Government early in 2002.

The Commission included the full text of the above paragraph from the Agreement in all its explanatory pamphlets about the Bill of Rights. By doing so it was seeking to highlight an initial difficulty with the mandate given to the Commission, namely the need to define what is meant by “reflect the particular circumstances of Northern Ireland”. In fact, relatively few of those involved in the consultation process to date (apart from the working groups) have addressed the specific issue of the Commission’s legal mandate. But it is clear that there is a spectrum of different approaches which could be adopted.

At one end of the spectrum the rights supplementary to those in the European Convention on Human Rights (the European Convention) can cover a fairly broad range of rights of a civil, political, social, economic and cultural nature. On this view the reference in the Agreement to “the particular circumstances of Northern Ireland” does not imply that any category of rights should be excluded from the outset, but rather that any rights which emerge from, or can be justified in terms of, the particular circumstances of Northern Ireland, may be included. Most of those who dealt with the mandate issue at all in their submissions to the Commission, and all of the working groups appointed by the Commission to advise it on the different types of rights which might be included in the Bill of Rights, supported an approach which tended to favour this end of the spectrum of approaches to the Commission’s mandate.

The main points to be made regarding this kind of approach to the Bill of Rights are as follows:

· the particular circumstances of Northern Ireland include the facts that the area is emerging from a lengthy period of violent conflict and that a multi-party agreement has been reached built on principles of non-violence, equality and participation; these are circumstances which the Bill of Rights should address;

· the Belfast (Good Friday) Agreement 1998 as a whole contemplates a range of protections for a range of human rights issues, from social and economic provisions to equality provisions and provisions dealing with the treatment of victims; this again suggests that a breadth of rights is permissible and/or contemplated under the wording of paragraph 4;

· paragraph 4 says the Bill of Rights should reflect “the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience” (emphasis added); international instruments and bodies have repeatedly stressed that all human rights are indivisible and interdependent, meaning, for example, that civil and political rights should not be separated from social, economic and cultural rights;

· in providing particular issues which the rights should reflect, and issues “among” those to be considered by the Commission, paragraph 4 provides the Commission with guidance rather than limitations as to what it has to address; in any case, mutual respect and parity of esteem can be reflected only by providing a range of rights addressing a range of issues.

At the other end of the spectrum of possible approaches, the rights supplementary to those in the European Convention should be much less numerous. On this view the phrase “the particular circumstances of Northern Ireland” is to be interpreted as imposing quite a definite limit on the scope of the proposed Bill, and only rights which very obviously reflect the particular circumstances of Northern Ireland deserve to be included in the Bill.

The main points to be made regarding this kind of approach to the Bill of Rights are as follows:

· the inclusion of the phrase in paragraph 4 in the Agreement suggests that the Bill of Rights should be limited to matters that are of special concern to Northern Ireland as opposed to the rest of the UK or Ireland;

· the two governments have already made it clear to the Commission that, while they do not wish to influence the Commission’s independent deliberations, it should consider carefully the wording of the Agreement in respect of the proposed Bill of Rights: the UK Government has indicated that “the key issues the Commission will have to address are the scope for a Bill of Rights for Northern Ireland and whether rights supplementary to the ECHR (the European Convention) are necessary in the particular circumstances of Northern Ireland” and the Irish Government has indicated that when the draft Bill of Rights is available it will “assess and evaluate it in terms of its compliance with the terms of the Good Friday Agreement, in particular those sections relating to the Bill of Rights”;

· if the Commission were to recommend a more general Bill this could raise expectations which are unlikely in practice to be met because the UK Government may be unwilling to provide for many rights to be guaranteed in Northern Ireland when they are not so guaranteed elsewhere in the UK; the Irish Government may likewise be reluctant to see rights guaranteed in Northern Ireland which are not yet guaranteed in the Irish Republic;

· adopting this interpretation of “the particular circumstances of Northern Ireland” could mean that some of the rights recommended in the rest of this document, such as some electoral rights, women’s rights, children’s rights, some education rights and social, economic and environmental rights, could not be justified in terms of the Agreement, however much they might otherwise be desirable.

The Commission’s approach

The Commission has always stated that it wishes to recommend provisions for the most extensive Bill of Rights which is consistent with the terms of paragraph 4 of the Agreement. Thus, for example, it has chosen not to confine itself to advising on “the scope for defining” the requisite rights but to advise on the requisite rights themselves.

Given the clear difference of views as to how that paragraph should be interpreted, especially the phrase “the particular circumstances of Northern Ireland”, the Commission has decided for the purposes of the present consultation document to include a discussion and a suggested formulation of the full range of rights which have been suggested in the reports of the working groups, in other submissions and in the Commission’s own deliberations.

In so far as a narrow interpretation of paragraph 4 might be thought to rule out the recommendation of certain rights, the Commission is satisfied that it can properly rely on its general power under section 69(3)(b) of the Northern Ireland Act 1998 to make recommendations for the better protection of human rights in Northern Ireland. We are of the firm view that these rights need to be protected in Northern Ireland – ideally through being guaranteed in a Bill of Rights but at the very least through being covered by ordinary legislation.

In this document the relevant provisions of the European Convention on Human Rights are set out in the appropriate chapters together with the proposed supplementary rights. Rights contained in Protocols to the European Convention which have been incorporated into UK law by the Human Rights Act 1998 are included where appropriate in the following chapters. Protocols 4, 7 and 12, not yet ratified by the UK, can be found in Appendix 3. The Commission welcomes comments on whether these rights should be included as well.

Before it prepares and delivers its final advice to the Secretary of State in 2002, the Human Rights Commission would particularly welcome responses on which sort of approach to the content of a Bill of Rights is to be preferred. Having carefully considered all the views put to it, the Commission will take its own decisions and set out the reasons behind them.

It is customary for important legal documents such as Bills of Rights to begin with a Preamble which attempts to locate the Bill in its historical context and to guide future users of the Bill as to how it should be interpreted. The great international documents on human rights – such as the Universal Declaration of 1948, the European Convention on Human Rights of 1950 and the two United Nations (UN) International Covenants on Civil and Political Rights and Social, Economic and Cultural Rights of 1966 – all have inspirational Preambles which emphasise their origins and importance.

The Northern Ireland Human Rights Commission is of the firm view that a Preamble should introduce the Bill of Rights for Northern Ireland. It proposes the following wording, which is explained in the text below.

considering that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world;

realising that each individual in Northern Ireland, having duties to other individuals and to the community to which he or she belongs, is under a responsibility to strive for the promotion and observance of the rights recognised in the present Bill of Rights;

recognising that the tragedies of the past have left a deep and profoundly regrettable legacy of suffering and that those who have died or been injured, and their families, can best be honoured through a fresh start dedicated to the achievement of reconciliation, tolerance, mutual trust and the protection and vindication of the human rights of all;

building on the principles enshrined in the Belfast (Good Friday) Agreement, namely:

a commitment to partnership, equality and mutual respect as the basis of relationships within Northern Ireland;

a total and absolute commitment to exclusively democratic and peaceful means of resolving differences on political issues and an opposition to any use or threat of force by others for any political purpose;

an acknowledgement of the substantial differences between the competing and equally legitimate political aspirations in Northern Ireland and a commitment to strive in every practical way towards reconciliation and rapprochement within the framework of democratic and agreed arrangements; and

the better protection of the human rights of all men, women and children in Northern Ireland;

accepting therefore the need for a Bill of Rights building on the established protections under the European Convention on Human Rights, the European Union Charter of Fundamental Rights and other international human rights conventions, which will:

guarantee the rights of both main communities and all other communities in Northern Ireland;

ensure the effective delivery of those rights to all people, including those suffering during the conflict and the most disadvantaged and vulnerable people in Northern Ireland;

The proposed Preamble is worded in such a way as to indicate the wish of the people of Northern Ireland for the Bill to be adopted and adhered to whichever government is responsible for the content of the law of Northern Ireland. It seems to the Commission that the best way in which the wish of the people of Northern Ireland could be determined would be through a resolution of their elected representatives adopted by a cross-community vote in the Northern Ireland Assembly.

The first two sub-clauses of the Preamble are based upon paragraphs in the Preambles to the UN’s International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966). Many people have commented to the Commission that the concepts of “dignity” and “responsibility” should be integral to the way in which the Bill of Rights operates in practice in Northern Ireland and the Commission believes these concepts can best be integrated by making them part of the Preamble.

The third sub-clause (“recognising that the tragedies…”) is based almost word-for-word on paragraph 2 of the “Declaration of Support” at the beginning of the Belfast (Good Friday) Agreement 1998.

The next two sub-clauses are also based on paragraphs in the Agreement, in particular paragraphs 3, 4 and 5 of the “Declaration of Support” at the beginning of the Agreement and paragraphs 1 to 8 of the section headed “Rights, Safeguards and Equality of Opportunity”.

The Preamble makes no express reference to how the Bill of Rights should be adopted. The Commission believes that a sensible option in this regard would be adoption by Act of Parliament and, as with the Belfast (Good Friday) Agreement, entrenchment in an international treaty between the UK and the Republic of Ireland in such a way as to guarantee the continued protection of the Bill’s provisions by whichever state has jurisdiction over the territory of Northern Ireland. The Commission, of course, holds no views on what the future constitutional status of Northern Ireland should be.

Introduction

The Belfast (Good Friday) Agreement 1998 establishes new structures for the governance of Northern Ireland, both internally and in its relationships with the rest of the UK and the rest of Ireland. Within Northern Ireland it provides for proportional representation, both in the Executive and in the operation of the Assembly, where mutual vetoes are also provided for. On the island of Ireland it provides for formal structures for co-operation and decision-making in selected areas. East-West structures are also provided for, between Northern Ireland, Scotland, Wales and England. In addition the Agreement sets out principles of self-determination.

The question which faces the Commission is whether any of the Agreement’s complex constitutional arrangements should be reflected and guaranteed in the proposed Bill of Rights. The Commission did not establish a Working Group to discuss these issues, although some relevant aspects were considered by the Working Group on Implementation. But a number of submissions made during the initial consultation process called for the entrenchment in the Bill of Rights of the structures set out in the Agreement in respect of self-determination, partnership in government and the operation of cross-border and all-Ireland institutions. Others called for the inclusion of more general guarantees for proportional representation in elections and for effective participation of all sections of the community, as opposed to representatives of unionists and nationalists, in the structures of government and administration.

The Commission’s approach

The Commission’s initial approach is that it is preferable to include the essential principles of the Agreement in the proposed Bill of Rights rather than to seek to entrench the specific and detailed arrangements which have been agreed and put in place under the Northern Ireland Act 1998 and other legislation. This is clearly an area where there are particular circumstances of Northern Ireland which deserve to be reflected in the Bill of Rights.

It is essential, in the view of the Commission, in a divided society like Northern Ireland to provide some guarantee for members of the two main communities – and others – that their right of effective participation in government, as recognised in the Framework Convention on the Protection of National Minorities and other international standards, cannot be overridden by the assertion of simple majority rule. But it is equally important to leave some flexibility for the future amendment or development of the particular arrangements for elections and for participation in the Assembly and the Executive set out in the Agreement and the Northern Ireland Act. As the Agreement itself provides for periodic review of these arrangements, it would in any case be inappropriate to seek to entrench them in a Bill of Rights.

The Commission’s preliminary proposals

[1] The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

2. Elections to the European Parliament, the Westminster Parliament, the Northern Ireland Assembly and local government shall be by a system of proportional representation to be determined by legislation.

Clause 2 is intended to supplement Article 3 of Protocol 1 to the European Convention on Human Rights. The principle that in the particular circumstances of Northern Ireland fair representation of the two main communities and others can be achieved only by a system of proportional representation has already been accepted for elections to the European Parliament, the Northern Ireland Assembly and local government. The Commission is strongly of the view that this should be extended to Westminster elections and that proportional representation should be protected against future repeal for short-term political advantage by its inclusion in the proposed Bill of Rights. The objective of this clause is to guarantee the principle without prescribing the particular method of elections, which in the view of the Commission should be left to detailed legislation.

1. Elected representatives shall be entitled to fair, full and effective participation in the governance of Northern Ireland.

2. The State shall take all appropriate measures to promote the right of women to fair, full and equal participation in public life, including participation in decision-making processes and access to power.

These clauses follow the principle set out in the Framework Convention and the United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. As explained above, the Commission considers it better to guarantee the underlying principle of fair, full and effective participation for all those elected rather than to seek to entrench any particular form for the proportional allocation of positions on the Executive or within the Assembly. The inclusion of the word ‘fair’ is intended to strengthen the formulation in the Framework Convention without imposing any form of strict mathematical proportionality. The Commission remains open to suggestions as to how the principle of fair, full and effective participation at all levels of government can best be formulated. In Chapter 5 the Commission provides further explanation concerning the participation of women in the public life of Northern Ireland. In Chapter 10 it suggests clauses concerning the participation rights of children.

It notes, moreover, Article 16 of the European Convention on Human Rights, which permits the state to impose restrictions on the political activity of aliens, which the Commission has decided not to supplement at this point.

Article 16 of the European Convention – Restrictions on Political Activity of Aliens

[3] Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.

1. All persons aged 17 or over shall have the right to vote in elections to local and regional Government bodies and referendums at local and regional level within Northern Ireland, provided that they satisfy the requirements of legislation as to residence or other local connection. All persons who are entitled to vote are also entitled to present themselves as candidates for election and to nominate, second or support candidates.

Creating a stable system of democratic governance for Northern Ireland entails protecting every individual’s right to vote and impact on the political process. As such, special attention is due to those persons whose right to participate is currently restricted by law. Existing legislation provides many grounds for disqualification from standing for certain elected offices. For example, people who are EU or Commonwealth citizens cannot stand for the Northern Ireland Assembly, nor can those who have been declared bankrupt. The clause could mean that some persons who are currently barred by law from presenting themselves as candidates at elections will now be able to do so, including police officers, civil servants, those who have been declared bankrupt and those who have been certified as mentally ill. Whether the laws which currently bar them from standing would be acceptable under the limitations clause included in this Bill of Rights (see Chapter 16) will depend on judicial interpretation of that clause, guided by the case-law of the European Court of Human Rights.

Some people are even denied the right to vote, including convicted prisoners (while they are detained or are unlawfully at large) and people who are detained because they are mentally ill. The Commission intends the clause set out above to be interpreted in such a way as to guarantee voting rights for everyone and to remove unjustifiable legal restrictions on people standing for election. It is also intended to supplement Article 3 of Protocol 1 to the European Convention on Human Rights as noted above.

A number of submissions argued strongly that in the particular circumstances of Northern Ireland, as a region emerging from a long period of conflict and with a higher proportion of young persons than elsewhere in Western Europe, it is necessary to ensure that young people have a real sense of belonging to and participating in society and that they should be accorded the rights, responsibilities and respect due to them as citizens. These submissions emphasised that by the age of 17 young persons are entitled to work, to marry, to drive and even to join the armed forces and that they are required to pay taxes and are subject to full criminal responsibility for their actions. They also referred to the fact that in nine other countries the voting age has been set at 15 or 16 and that in one German state it has been set at 16 for regional elections. The objective of the above formulation is to reduce the voting age to 17 for elections in Northern Ireland, other than those for the Westminster and European Parliaments.

It has also been strongly argued, on the other hand, that any change of this kind, however desirable in itself, should be debated and adopted by ordinary legislation and that it would be inappropriate to include it in the proposed Bill of Rights. There is no international standard in this respect and all other European countries currently set their voting age for national elections at 18.

The Commission seeks comments and suggestions on this general issue and also on whether if a provision is to be included the age should be set at 17 (rather than 16).

A number of issues were also raised with the Commission concerning the right to an accountable and transparent government. Several submissions made reference to this right. It was seen as something which could complement and strengthen the existing process of judicial review by which an individual may question a decision taken by a public authority. The Commission, however, did not have the opportunity to address this matter in the necessary depth and it has therefore decided not to make any specific proposal in relation to it at this stage but to ask for views on whether such a right should be included in the Bill of Rights and, if so, how exactly it should be worded.

The Belfast (Good Friday) Agreement 1998 seeks to protect and promote the identity and interests of both main communities in a number of specific ways:

The Agreement, however, also contains a number of more general and specific commitments by the two Governments and the parties to respect the equality and the civil, political, social and cultural rights of all citizens.

The Northern Ireland Executive’s Programme for Government 2001-2004 also recognises the importance of rights and responsibilities in this context:

“Only if we are confident in our rights and responsibilities, only if we create security for the individual from poverty and communities from disadvantage, only if we can help the confidence of a community to express its needs can we build a firm foundation for tackling the divisions in our society. In short we must create a feeling of justice for all, and ensure that there can be real inclusion of all individuals before we can fully secure a cohesive society”. (p15)

One of the principal issues for the Commission in making recommendations for a Bill of Rights is the balance between two objectives: on the one hand recognising and protecting the two main communities and on the other hand protecting the rights of all on an equal basis. The Working Group on Culture and Identity drew the Commission’s attention to the dangers of entrenching communal differences and the need to recognise the increasingly multi-cultural nature of society in Northern Ireland, as in the rest of the UK and Ireland. It therefore recommended guarantees for the rights of all ethnic and religious communities. The Working Group and a number of others during the consultation process also revealed strong support for the right of individuals not to be classified as members of a particular community against their wishes. But some others emphasised the need to take account of their perception that the core of the conflict in Northern Ireland is the existence of two main communities with divergent identities, cultures and aspirations.

The Commission’s initial recommendation is that so far as is possible both these positions should be reflected in the Bill of Rights. The Bill should therefore include some specific guarantees for the two main communities along the lines of the commitments already undertaken by the two Governments. But the main emphasis, as recommended in the Working Group report and the bulk of submissions, should be on the incorporation of relevant provisions of the Framework Convention for the Protection of National Minorities, with a view to guaranteeing the rights of members of all communities.

A similar approach should be adopted in respect of more specific language rights, as recommended in Chapter 13, by the incorporation of relevant provisions of the Framework Convention and of the European Charter for Regional or Minority Languages, to which the UK Government is already committed.

The balance between the recognition and accommodation of the two major communities and the guarantee of the rights of all can then be maintained by drawing on the distinction which is reflected in both the Framework Convention and the Charter for Languages, as well as in other minority rights conventions, between the general duties of states to recognise and protect communal groups and the more specific rights concerning culture and identity of individuals belonging to those groups.

The commitments already made by both Governments in the new British-Irish Agreement to ensure parity of esteem for both communities could be reflected in the Bill of Rights either as a general clause in a Preamble or as a series of specific duties imposed on whichever government has sovereignty in Northern Ireland.

Restricting what is a reference in the Agreement to a general objective of ensuring “parity of esteem and just and equal treatment for the identity, ethos and aspirations of both communities” to a clause in a Preamble to the Bill of Rights would provide guidance to judges and others on the interpretation of the more general provisions of the Bill without imposing any specific enforceable duties on government or public bodies. Given the difficulties outlined below of providing for parity of esteem as a right, there may be an advantage in this approach.

The alternative of imposing an enforceable duty on government and public bodies to give parity of treatment and esteem to both communities, while initially attractive, would be difficult to enforce, as the interpretations and implications of what “parity of esteem” means vary greatly. It is hard to envisage how the Government could guarantee that the two communities feel respected by each other.

The Commission therefore prefers to set out the specific rights which in its view underlie the concepts of parity of esteem and mutual respect. This approach is in line with that adopted by the Framework Convention on the Protection of National Minorities, which sets out certain standards which are to be taken as programmatic duties to be fulfilled by governments. Article 20, for example, states that: “In the exercise of the rights and freedoms flowing from the principles enshrined in the present Framework Convention, any person belonging to a national minority shall respect the national legislation and the rights of others, in particular those of persons belonging to the majority or to other national minorities”. It should be noted, moreover, that, while the rights below are more explicitly aimed at parity of esteem, the Commission views the entire range of rights recommended for the Bill of Rights as providing a basis for parity of esteem among all communities in Northern Ireland. The Commission would welcome comments on whether its approach to the parity of esteem issue is the correct one.

In accordance with Article 1(vi) of the Agreement between the UK and Ireland, the Human Rights Commission suggests that the following right should be contained in the Bill of Rights:

1. Individuals born in Northern Ireland have the right to identify themselves and be accepted as Irish or British citizens, or both, as they may so choose.

During the initial period of consultation the Working Group on Culture and Identity and most others who addressed this issue urged the Commission to give equal protection to the identity and cultural rights of members of all distinctive ethnic and religious communities in Northern Ireland. This would give formal recognition to the increasingly multi-cultural nature of society in Northern Ireland. It should also help to avoid the dangers of entrenching the apparently simple division between the two communities by recognising the fact that many individuals have a number of different affiliations.

The prevailing view, which is shared by the Commission, is that the best means of achieving these objectives is to incorporate into the law of Northern Ireland relevant provisions of the Framework Convention on the Protection of National Minorities, to which both the British and Irish Governments are already committed. The most important of these provisions is the right, initially formulated in Article 27 of the UN’s International Covenant on Civil and Political Rights, for members of national, ethnic, religious and linguistic minorities to practice their religion, use their language and enjoy their culture.

But the Framework Convention and other recent international instruments, notably the UN’s Declaration on the Rights of Persons belonging to National or Ethnic, Religious or Linguistic Minorities, go further by imposing on states a duty to take appropriate positive measures to promote full and effective equality for members of minorities and to promote the conditions necessary for them to maintain and develop their culture and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage, and to avoid policies or practices aimed at assimilating into the dominant culture against their will. These rights and duties are balanced by further provisions guaranteeing the rights of individuals not to be treated as members of a minority against their will and requiring states to promote mutual tolerance and to ensure that members of each minority receive appropriate education on the identity and culture of other communities.

The Commission has decided in the light of advice from experts in the field, notably the legal adviser of the High Commissioner for Minorities at the OSCE (Organisation for Security and Co-operation in Europe), that in the particular circumstances of Northern Ireland it would be desirable to avoid the use of the term “minority” and to replace it with the term “community”. This would help to avoid complaints that one or other community is being given preference over others and should help to reassure members of the current majority community that recognising the rights of other communities does not involve any reduction of their own rights.

The Commission is also of the view that the term “community” should be given a broad definition with a view to including well-established immigrant communities such as the Chinese, Indians and Muslims, as well as those, such as the Travellers, who would more clearly be covered by the term “national minority” in the Framework Convention. The term ‘culture’ is not defined explicitly below, but is intended to be read broadly in interpreting rights of members of communities. In relation to Travellers, for example, the right to culture would include the right to a nomadic or semi-nomadic lifestyle. For clarification, however, the Commission recommends that a special clause be included in the Bill of Rights dealing with the right to be nomadic.

The conferring of a right freely to choose not to be treated as a member of a particular community would obviously have implications for existing monitoring requirements in Northern Ireland. The Commission does not want to undermine the rationale for such requirements and would therefore welcome comments on whether, and if so how, such a right should be conferred.

The Commission therefore recommends the inclusion in the Bill of Rights of the following clauses, which largely follow the wording of Article 27 of the UN’s Covenant and the Framework Convention. It would appreciate comments on whether it has struck the right balance in this context, particularly as this is a difficult area in which to frame appropriate legal provisions.

1. Nothing in this section shall be used to negate equality commitments, including positive action provisions in this Bill of Rights or in legislation.

2. Everyone belonging to a national, ethnic, religious or linguistic community shall have the right in common with other members of that community to enjoy his or her own culture, to profess and practise his or her own religion and to use his or her own language.

3. Everyone has the right to be nomadic or sedentary and a right to change from one mode of living to the other.

4. Everyone has the right freely to choose to be treated or not to be treated as a member of what might otherwise be perceived to be their national, ethnic, religious or linguistic community and no disadvantage shall result from this choice or from the exercise of the rights which are connected to this choice.

5. The Government and public bodies shall, without prejudice to existing legal requirements and to the positive action clause 4(8) of this Bill, adopt effective and appropriate measures to:

(a) promote equality in all areas of economic, social, cultural and political life among and between persons belonging to national, ethnic, religious or linguistic communities and the conditions necessary for them to maintain and develop their culture;

(b) preserve the essential elements of the identity of such persons, namely their religion, language, traditions and cultural heritage; and

(c) promote tolerance, mutual respect, understanding and co-operation among all persons living in Northern Ireland, irrespective of their cultural, ethnic, religious or linguistic identity, in particular in the fields of education, culture and the media.

The Commission believes that the above proposals would not provide a basis on which to challenge what is said in the Belfast (Good Friday) Agreement about voting mechanisms in Northern Ireland. However, some Commissioners wanted this to be made explicit by providing a second part to clause 1 above, stating:

Nor shall anything in this section negate voting mechanisms designed to ensure representativity in political institutions and decision-making.

Some Commissioners also believed that substituting the term “community” for “minority” in the Framework Convention changed the impact of that Convention and that the Agreement’s provisions relating to mutual respect and parity of esteem should be expressly built upon. On this view it would be possible to fashion what is in effect a right to parity of esteem which incorporates language from the Agreement and the Framework Convention standards, while still not using the language of “majority” or “minority”. Under this option, in place of clauses 2 to 4 above, the following clause would apply.

(a) mutual respect for all people in the diversity of their identities and traditions; and

(b) parity of esteem and just and equal treatment for the identity, ethos and aspirations of both communities; the programmatic standards in the Framework Convention shall provide a guide as to how this is to be achieved.

Other provisions of the Framework Convention more directly related to education and language rights are discussed below in Chapters 11 and 13 respectively.

4. Equality and non-discrimination

Introduction

One of the ‘gaps’ identified in the European Convention on Human Rights is the absence of a free-standing provision guaranteeing equality or imposing a positive obligation on the state to redress inequality. Article 14 of the Convention only provides a guarantee against discrimination for the rights included in the European Convention:

Article 14 of the European Convention – Prohibition of discrimination

[1] The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Protocol 12 to the Convention, which the UK Government has not signed or ratified, extends the non-discrimination provisions in Article 14 but still does not address equality more positively (see Appendix 3). But national constitutions drafted in the last 10 or 20 years, for example in Canada and South Africa, have included extensive equality rights, such as a free-standing right to equality “before and under” the law as well as “equal protection” of the law. On an international level, multilateral treaties have incorporated similar provisions, such as Article 26 of the UN’s International Covenant on Civil and Political Rights, which asserts that “all persons are equal before the law,” and Article 20 of the European Union’s Charter of Fundamental Rights, which reads “Everyone is equal before the law.”

The European Convention, drafted in 1950, does not reflect the present-day expectation that the state should not only respect, but also protect and advance, equality. Current legislation and obligations under the EU Directives on equal pay and treatment create a much stronger onus on the state to ensure that in practice everyone has fair access to employment, public resources and facilities. Northern Ireland is also subject to its own laws, soon to be consolidated into a Single Equality Act, which mandate programmes and monitoring to achieve equal treatment and equal opportunity in practice. The “particular circumstances” of Northern Ireland necessitate more extensive equality rights than those found in Article 14 of the European Convention. The question of equality has been one of the main issues during the conflict here. This is reflected in equality legislation and in the equality provisions of the Belfast (Good Friday) Agreement and the Northern Ireland Act 1998, in particular the statutory equality duty imposed by section 75. The Agreement specifically requires the Human Rights Commission to consider “a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors”. It also makes clear the commitment of all the parties to equality by referring to equal opportunity and equal treatment. Implicit in the commitment to the right to equal opportunity, to freedom from sectarian harassment and to the right to full and equal participation (as specifically enumerated for women in the Agreement) is the duty on the state actively to work towards the abolition of inequality of treatment before and under the law.

The Commission’s approach

The remit of the Commission, as stated in the Agreement, is to advise the government as to “a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors”. The Bill of Rights for Northern Ireland must therefore recognise this duty and help foster attitudes and mechanisms by which equality can be a reality for everyone. The Commission supports the draft language submitted by the Working Group on Equality and notes the broad public support for the right to equality and positive action as well as for the prohibition of direct and indirect discrimination.

Best international practice also highlights an approach to equality rights which uses both equality and non-discrimination provisions. The Commission has drawn particularly from the European Union Charter of Fundamental Rights, the Canadian Charter of Fundamental Rights and Freedoms and the Bill of Rights chapter in the South African Constitution. UN treaties which address gender and race issues also employ provisions which prohibit discrimination and which require states to enact measures to address inequality.

The Commission’s preliminary proposals

General equality

2. Everyone is equal before and under the law and has the right to equal protection and equal benefit of the law. Equality includes the full and equal access to and enjoyment of all rights and freedoms.

As discussed above, guarantees of equality are of primary importance in the aspirations of the Agreement. Equality pervades the current institutional and political arrangements of Northern Ireland, depicted in the duty to equality proof legislation and in the promise to serve equally contained in the Pledge of Office for Members of the Assembly. The Bill of Rights can entrench these rights, making them legally enforceable and conferring an element of permanence. “Equality before and under the law,” as well as rights to “equal protection and equal benefit of the law”, are phrases which should help courts and legislatures to consider whether the law provides effective equality in practice.

Equality between men and women

3. Equality between men and women must be ensured in all areas. The State shall take all necessary measures to promote the equal enjoyment, benefit and protection of all human rights and fundamental freedoms for women and girls.

The first element of this clause is taken from the European Union’s Charter of Fundamental Rights and the second is taken from the UN’s Convention on the Elimination of Discrimination Against Women. This provision is further discussed in Chapter 5 of this document, on the rights of women.

4. Everyone has the right to be protected against any direct or indirect discrimination whatsoever on any ground (or combination of grounds) such as race or ethnic origin, nationality, colour, gender, marital or family status, residence, language, religion or belief, political or other opinion, possession of a criminal conviction, national or social origin, birth, disability, age, parentage, sexual orientation, status as a victim or any other status.

Unlike Article 14 of the European Convention, the clause above extends to all rights guaranteed by law, not just to those listed in the European Convention or in this Bill of Rights. Protocol 12 to the Convention, although not yet ratified by the UK, works similarly to strengthen Article 14 by extending protection from discrimination to rights which are outside of the Convention (see Appendix 3 for the text of Protocol 12).

The Commission has chosen the phrase “right to be protected” in order to create a positive duty on the state to prevent discrimination rather than merely prohibit it.

The proposed clause includes grounds not listed in Article 14, such as ethnic origin, marital or family status, residence, possession of a conviction, disability, parentage and sexual orientation. These additional grounds reflect the need to protect vulnerable groups within Northern Ireland.

The list of grounds protected from discrimination is not exhaustive. “Other status” allows the clause to remain flexible as the groups needing protection change over time. For example, the family members of individuals convicted of crimes are often the object of discrimination because of their kinship with an ex-prisoner. People who are transgendered also frequently suffer from improper discrimination. The term “other status” would allow such individuals to be protected.

The inclusion of “status as a victim” as a ground for protection against discrimination needs further consideration in the next consultation period. Such status is not yet included as a protected ground in other international non-discrimination documents but the Commission has been made well aware that in Northern Ireland victims of crimes are often put at a disadvantage when, for example, they seek employment or access to social services and public facilities. This document addresses the topic of victims’ rights more specifically in Chapter 8.