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response to the draft bill of rights for Northern Ireland
1. introduction
1.1 British Irish rights watch is an independent non-governmental organisation and registered charity that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.
1.2 It has long been our position that, rather than only having a Bill of Rights for Northern Ireland, we would prefer to see a UK-wide Bill, with a similar (preferably identical) Bill for the Republic of Ireland, so that human rights guarantees throughout these islands were the same. Our reason for holding this view lies in the demographic realities of the island of Ireland.
1.3 The Protestant/unionist/loyalist grouping is in the majority in Northern Ireland but is in a minority in the island of Ireland as a whole - and, indeed, within the United Kingdom - whereas the Catholic/nationalist/republican grouping is in the minority in Northern Ireland but can count itself part of the majority of Ireland. At present, Catholics make up around 38% of the population of Northern Ireland (although the results of the recent census may show this percentage to be out of date), while Protestants make up about 20% of the population of Ireland as a whole. Considering that the population of Northern Ireland is only 1.6 million, while that of all Ireland is 5 million, these are minorities to be reckoned with. This simple set of proportions has profound consequences for the peace process.
1.4 Whatever the eventual outcome of the peace process, it will be necessary to guarantee the rights of whichever grouping finds itself in the - presumably perpetual – minority, if there is to be lasting peace. The vital importance of such guarantees is underlined by the fact that, whatever model is adopted, the minority grouping will form a substantial proportion of the population as a whole. Human rights guarantees, and therefore a Bill of Rights, lie at the heart of the peace process.
1.5 However, while we would have preferred an islands-wide Bill of Rights, we recognise that we are bucking the trend of devolution. Better a Bill of Rights for Northern Ireland alone than no Bill of Rights at all, so we welcome this opportunity to comment on the draft drawn up by the Northern Ireland Human Rights Commission. Our comments are divided between general comments on the Bill as a whole and comments on specific clauses in the draft Bill.
2. comments on the draft bill as a whole
2.1 We appreciate than a great deal of work on the part of many people has gone into drafting the proposed Bill. We also believe strongly that Bills of Rights should be drafted by the people whose rights they are intended to protect, since if people have no sense of ownership the Bill will have no impact and will fail in its job of enhancing people’s rights. We therefore commend the wide consultation exercise carried out by the Commission and its attempt to be as inclusive as possible. Such an approach has its difficulties in a society as divided as Northern Ireland, but is all the more vital because of those divisions.
2.2 It is perhaps because British Irish Rights Watch is based outside Northern Ireland in England that we were not included in the first round of consultations. We mention this not to because we wish to complain about that oversight, but lest anyone thinks that we were not interested enough to comment before now. There may also be those who think that we have no right to comment, but we hope that the very fact that we are external observers of the situation in Northern Ireland may mean that we can supply a disinterested, but by no means uninterested, perspective on the draft Bill.
2.3 We do, though, have one complaint about the consultation process. We received the draft on 17th September. The Commission has asked for comments by 1st December 2001. Given the complexity of the draft Bill and the 45 separate questions the Commission has asked, we fear that many potential commentators will be hard pushed to respond as fully as they would like in such a short timespan.
2.4 It may seem churlish, given our praise of the Commission’s wide consultations, that our first criticism of the draft Bill is that it bears all the hallmarks of a document put together by committee. What we mean by that is that the draft Bill seems to us to lack any overall cohesion or defining theoretical model. It is not clear what sort of Bill of Rights it is intended to be. We recall that at a meeting intended to launch the Bill of Rights in December 1999, to which the Commission kindly invited us, an immediate division emerged among Commission members. On the one hand, there were those who saw the Bill as an opportunity to provide a paradigm for the rest of the country, or even for the world, of a wide-ranging, comprehensive Bill covering social, economic, cultural, civil and political rights. On the other hand, there were those who believed that the Commission should come up with a Bill that would be acceptable to government because it would be more likely to be enacted than an “all singing all dancing” Bill that might simply gather dust on a shelf. On the face of it, the draft Bill is very wide-ranging, but on a close reading it is full of compromises and fudges – for instance, talking about rights to reproductive and sexual health care, information and education, while leaving it unclear whether a woman has the right to an abortion if she wants one. There is much borrowing of language from other international and domestic human rights instruments, without always importing the true effect of those provisions, for example in the huge confusion between minority and majority rights which we discuss below.
2.5 Our two major criticisms of the draft Bill stem from this lack of any evident overview. The first criticism is that it is unclear from the draft whether the Bill is taking the European Convention of Human Rights as a starting point from which to elaborate a set of enhanced rights, that improve on the ECHR and go beyond it, or whether the ECHR is seen as a ceiling beneath which existing rights can be better articulated but above which it is not possible to venture. In our view, the ECHR is settled law, incorporated into domestic law, and the only point in any domestic Bill of Rights would be to improve upon the ECHR, which is by now a fairly elderly instrument that sets out minimum standards. It ought not to be necessary to include portions of the ECHR in the draft Bill, but if that is thought necessary, then there can be no rhyme or reason in including portions of the ECHR selectively, as the draft Bill does. The pitfalls of such an approach are evident in draft Clause 6 on the right to life, where the draft Bill incorporates two apparently contradictory paragraphs from the sixth Protocol to the ECHR concerning the death penalty.
2.6 Our second criticism, which is crucial, is the confusion on the face of the draft between minority and majority rights. We understand that those drafting the Bill believed it was important to recognise the rights of the two main communities in Northern Ireland equally. Although we can understand the appeal of such an approach, we think it is mistaken. A Bill of Rights for Northern Ireland needs to be about, and for, everyone in Northern Ireland, not just Protestants and Catholics. It also needs to reflect the fact that everyone in Northern Ireland is a member of many different majorities and minorities. Both Catholics and Protestants are in a majority in being Christian. A Protestant may be in a majority in being a Protestant, but in a minority be virtue of having a disability. A Catholic may be in a minority in being a Catholic, but in a majority in speaking English.
2.7 One of the besetting problems in Northern Ireland is the insistence of people who are in fact in a majority on viewing themselves and behaving as if they are in a minority. Furthermore, the fact that the largest minority, that of the Catholic/nationalist/republican community, is so large has meant that smaller minorities, such as ethnic minorities, have been almost drowned out when it comes to rights.
2.8 Bills of Rights need not only to protect individuals from governments, but to protect minorities from majorities. This is perhaps particularly so in a democracy, where the majority have the final say in many important matters affecting the lives of the minority. It is therefore vital that a Bill of Rights draws a clear distinction between rights that apply to everyone in a society and additional rights that apply to minorities in order to protect, in essence, their identity and their right not to conform to the majority norms. Yet the draft Bill does not do this. It adopts many of the concepts included in the Framework Convention on the Protection of National Minorities, but – fatally, in our view – substitutes the notion of “members of communities” for that of minorities, thus at a stroke creating minority rights for the majority. This flaw is so grave, in our opinion, that unless it is rectified we will not be able to support the Bill of Rights because it will deepen the existing divides in Northern Ireland rather than helping to heal them.
3. comments on specific clauses in the draft bill
3.1 PREAMBLE
3.1.1 We would prefer “human race” to “human family” in the first paragraph. Unfortunately, the human race is not a family, particularly at the moment in the aftermath of events in the USA on September 11th, but also that part of the human race that resides in Northern Ireland is hardly a family either, and no amount of wishful use of such language will make it so. Secondly, not everyone lives in a family and, although its use here is clearly meant to be inclusive, it could be interpreted as exclusive by those who do not live in families or who have lost family members because of the violence of the past thirty years.
3.1.2 Similarly, we would prefer “society” to “community” in the second paragraph. As currently drafted, the preamble seems to suggest that people in Northern Ireland only owe duties to other individuals and to members of their own communities.
3.1.3 In the third paragraph, we would add “and friends” after “families”, in acknowledgement that it is not only families who have suffered and that not everyone lives in a family. We also suggest “profound and deeply regrettable legacy” rather than “deep and profoundly regrettable legacy”, because “profound” is more serious than “deep” and the effect of the conflict on people is more important than the regret it may have engendered.
3.1.4 It is most regrettable that the very name of the Northern Ireland peace agreement has become politicised. We understand that the Commission is trying to square the circle by referring to it as the “Belfast (Good Friday) Agreement”, but we fear that this solution will please no-one, but particularly nationalists, who may feel that placing “Good Friday” in brackets suggests a preference for the unionist “Belfast Agreement” version. We also believe that it is a mistake to incorporate into a Bill of Rights language that is itself politicised if it can be avoided. It is for that reason that we have no objection to the dropping of the phrase “parity of esteem”. Such language will look dated and benighted to future generations. We therefore suggest that in the fourth paragraph the agreement is described as “the Northern Ireland peace agreement” or, if necessary, as “the Northern Ireland peace agreement, adopted on Good Friday in Belfast in 1998”.
3.1.5 Just because the drafters of the peace agreement chose to use the words “total and absolute” does not mean that the draft Bill needs to commit the same solecism. “Total” means “absolute”, and vice versa. One or the other will suffice in the sixth paragraph.
3.1.6 The Commission has asked what we understand the phrase “reflect the particular circumstances of Northern Ireland” to mean, and what are the consequences of our understanding for what should be included in the Bill. Given our predilection for an all-islands Bill of Rights, it will come as no surprise that we favour the broader interpretation set out in the Commission’s consultation document, and a wide-ranging Bill of Rights. It seems to us self-evident that Northern Ireland is a society in transition from conflict to what will hopefully be peace. A Bill of Rights as envisaged by the peace agreement, if properly drafted, can be come a powerful tool for promoting such a transition. We fear that, as currently drafted, the Bill reflects the divisions and uncomfortable compromises that exist in Northern Ireland today all too accurately, and our suggested amendments aim to correct that. The way in which we think the Bill of Rights should reflect the particular circumstances of Northern Ireland is by laying down those rights, over and above what is laid down in the ECHR and the Human Rights Act, which will enable people in Northern Ireland to live together normally in a just and peaceful society and in an atmosphere of mutual respect. The reflection it casts should be inspirational rather than prosaic.
3.1.7 We are fundamentally opposed to paragraph 11 of the preamble, which sets as an aim for the Bill of Rights to “guarantee the rights of both main communities and all other communities in Northern Ireland”, for the reasons explained at paragraphs 2.6 to 2.8 above. If this approach is allowed to remain, it will help to ensure that Northern Ireland is forever a place of “two main communities”, to the disbenefit of both communities and especially of the smaller minorities in Northern Ireland. Margaret Thatcher once memorably claimed that there was no such thing as society, only families. The Northern Ireland Human Rights Commission seems to consider that in Northern Ireland there is no such thing as society, only communities. Such a notion is antipathetic to the concept of human rights, which vest first and foremost, and principally, in the individual. The Universal Declaration of Human Rights was adopted by the United Nations in 1948 in the wake of the Nazis’ acts of genocide and attempts to wipe out other non-racial groups. The drafters of the Universal Declaration recognised the need to safeguard what is human about every single human being. Group or community rights were only safeguarded later, in response to other crimes against humanity, such as apartheid in South Africa. Later still, the need to safeguard minority rights was recognised. To treat the two main communities in Northern Ireland as equal is to distort the true situation and to preserve aspects of the conflict in amber. Many of the problems that still exist in Northern Ireland today, such as the wide disparity in unemployment figures between the two main communities, stem from a history of the Protestant majority consciously and deliberately legislating to oppress the Catholic minority. That history must not be re-written and cannot be ignored. Conferring what are essentially minority rights on the majority by calling them a community is a nonsense. The political aspirations of the two main communities may be “equally legitimate”, in the words of the preamble, but they are not equal. The majority, under the terms of the peace agreement, are secure in having their aspiration to remain within the United Kingdom regarded as the status quo unless and until a majority of people within Northern Ireland decide by peaceful and democratic needs to alter that situation. The minority aspiration of a united Ireland will only ever be achieved under the agreement if they can win the hearts, minds and votes of the majority. In a democratic society, the majority will always prevail over the minority; the majority can, in a very real sense, decide the minority’s fate. It would be a cardinal error to fail to recognise that there is a majority and a minority in Northern Ireland, where the very core of the peace agreement is built on that reality. For a Bill of Rights to be used to perpetuate such an error would be wholly unacceptable.
3.1.8 The above comments constitute our answers the Commission’s questions numbers 1 to 5.
3.2 DEMOCRATIC RIGHTS
3.2.1 Elections
a. Paragraph [1] is not needed here because it merely reproduces (although the order of the words is slightly different) Article 3 of the first Protocol to the ECHR, which is already part of the domestic law by virtue of the Human Rights Act. In the rest of this response, we will not comment on any provision of the ECHR which is contained in the Human Rights Act, but it can be taken that the same comment as is made here would apply.
b. We agree that proportional representation should be extended to Westminster elections.
3.2.2 PARTICIPATION IN GOVERNMENT
a. In answer to the Commission’s question 6, we agree that elected representatives in Northern Ireland should have
the right to fair, full and effective participation in the governance of Northern Ireland. The prevention of such
participation would frustrate the will of the people who elected those representatives and would be thoroughly
undemocratic.
b. In proposed paragraph 2, we suggest the inclusion of “and other disadvantaged groups” after “women”, because other sections of society, such as people with disabilities, are also under-represented in public life.
c. Although we do not support the inclusion in the Bill of Rights of rights already entrenched by the Human Rights Act, if it is decided to retain paragraph 3, we believe it could be fruitfully amended to speak of restrictions on the political “participation of non-citizens”, rather than “activity of aliens”. In these days of the European citizen, it seems almost medieval to speak of restricting political activity by people from outside the country. Equally, the term “alien” is outmoded. It is probably a wise precaution to allow governments to prevent non-citizens from standing for election, or voting, in other words from participating in forming the government of a country, particularly in light of the Northern Ireland peace agreement, which prospectively allows for referenda on its constitutional status, but it is draconian to provide for the banning of all political activity on their part.
3.2.3 VOTING AND CANDIDACY RIGHTS
In answer to question 7, despite the large population of young people in Northern Ireland, we do not think that the
age at which people are allowed to vote should be different in Northern Ireland than it is in the rest of the UK (or, for
that matter, the Republic of Ireland). The age at which people may vote is bound up with other issues, such as the
age of majority. We are aware that there remain anomalies in the different ages at which people may take
important decisions in their life, but we do not feel that situation would be improved by creating further anomalies.
3.2.4 In answer to question 8, we certainly believe that the people of Northern Ireland, and elsewhere, are entitled to open and accountable government. However, we are not convinced that a Bill of Rights is an apt vehicle to articulate such rights. A Freedom of Information Act that is not littered with exceptions, a much more open and transparent civil service, the repeal of the Official Secrets Act and many other reforms are necessary to bring about a truly open and accountable system of government.
3.3 RIGHTS CONCERNING IDENTITY AND COMMUNITIES
3,3,1 In response to question 9, as we have already indicated, we agree with the decision not to use the phrase “parity of esteem” in the draft Bill for the reasons given at paragraph 3.1.4 above. Esteem is not something that can be legislated for, it can only be earned.
3.3.2 The right to a national identity
a. It is regrettable that the realpolitik of Northern Ireland is such that it has been thought necessary to include this clause. While it is the legal position that people in Northern Ireland can define themselves as British or Irish or both, it is not obvious that there exists a right to do so, other than the right created by the legal position. In any event, if the majority of people in Northern Ireland should in the future vote to join a united Ireland, this provision will become, presumably, otiose. The creation of a such a right in a Bill of Rights carries with it the danger of ossifying what is hopefully a temporary dispensation, in that while most normal societies allow for dual nationality the majority of those living within its borders are usually of the same nationality as the country itself. We do not mean to suggest that we hope that there will be a united Ireland, but we do hope that which nationality individuals choose to espouse in Northern Ireland will eventually become a dead letter, whatever the constitutional position. If Ireland were to become united, a right enshrined in a Bill of Rights to retain British citizenship could provide a bone of contention in what would be a new country. On balance, we would favour leaving this clause out because it merely reflects established law and does nothing to advance human rights.
b. It follows that our answer to question 10 would be not to include a right not to be treated as a member of a particular community. In our view, an important test for the inclusion or not of any right in a Bill of Rights is whether the right it would confer is a positive right. Rights which may sound negative, such as the right not to be discriminated against, are capable of being cast in a positive way, e.g. the right to freedom from discrimination. Negative rights cannot be re-cast positively. The right not to be treated as a member of a particular community is a negative right. It can be re-cast by the creation of a different, positive right, as the Commission has attempted in Clause 1, but it cannot be re-written positively without actually changing its meaning. In our view, negative rights have no place in a Bill of Rights.
3.3.3 The rights of members of communities
a. This is where we take issue with the draft Bill, for the reasons set out at paragraphs 2.6 to 2.8 and 3.1.7 above. Perhaps Clause 2, which confers on the majority community the right to use their own language, best illustrates our misgivings about creating equal community rights between unequal majority and minority groups. The majority community in Northern Ireland do not need the right to speak English guaranteed; it is a right they enjoy by virtue of being in the majority. Irish speakers, on the other hand, who are in a minority in Northern Ireland but have members in both the majority and the minority communities, do need protection of their right to speak Irish. Articulated as minority rights, this makes sense; expressed in terms of community rights it makes no sense.
b. We therefore suggest that the title of this section of the Bill be changed and that the provisions of this section be clearly divided between minority rights and other rights.
c. In Clause 2, we advocate the substitution of “minority” for “community” in both places.
d. We support the creation of a right in Clause 3 to be nomadic or sedentary.
e. Clause 4 makes sense only in terms of minorities. If it were to apply to communities it would drive a coach and horses through equality plans and positive actions provisions, especially if the clause on the right to national identity remains in the Bill - a person need only amend his or her designation to gain access to services intended for a disadvantaged group. In a divided society like Northern Ireland, it can be important for people to be allowed to describe themselves as “other”, rather than as Catholic or Protestant for example. Equally, members of ethnic minorities should be entitled to assimilate into mainstream society if they so choose. However, in order for public authorities to monitor the services they provide and ensure that they are not discriminating, they must be allowed to attach a designation to an individual that the person concerned might reject. Furthermore, we cannot see how the quota system designed to increase Catholic representation within the Police Service of Northern Ireland could survive the passing into law of such a provision.
f. In Clause 5, once again “minorities” must be substituted for ”communities”. We cannot emphasis too strongly that in a democracy majority rights do not need protection.
g. It follows from the above that in answer to question 11 we do not agree with any of the proposed rights for people by virtue of their membership of a community.
3.4 EQUALITY AND NON-DISCRIMINATION
3.4.1 In response to question 12, we do not consider that status as a victim should be included in this section. While we
support the inclusion in the draft Bill of a section on victims’ rights, it is important not to lose sight of the major causes
of discrimination in society, which are race, gender, and disability. The creation of long lists of potential victims of
discrimination is not always helpful, although a case can be made for some additions to the list, particularly in the
Northern Ireland context. Although there have been many victims of the situation in Northern Ireland, those victims
do not form a class of people in the same way that, say, women do. Victims are more likely to encounter
discrimination because of membership of some other group than because they are victims as such.
3.4.2 By the same reasoning, we have some concerns about the very long list at Clause 4 of this section. There is a failure to distinguish between groups of people who may suffer discrimination and characteristics of people or their lives that may give rise to discrimination. In Northern Ireland, a person may be discriminated against on grounds of language because of their membership of an ethnic minority, or on grounds of residence because of their membership of a religion. We note that the Commission has chosen, wisely we feel, to exclude property as a ground for discrimination, even though it is included in Protocol 12 to the ECHR. We are not sure why birth has been included, the relevance of which in the Northern Ireland context is not obvious. Given that there is a catchall “any other status”, we feel that the list could be pared to place greater emphasis on membership of a group that faces discrimination rather than on characteristics.
3.4.3 In particular, we believe that the inclusion of possession of a criminal conviction in Clause 4 is unsustainable. There are provisions in the legislation for convictions to be treated as spent. While we support the right of those convicted of crimes to be rehabilitated, to change, and to have the fact that they have paid their debt to society acknowledged, there are some situations in which it is necessary and right to discriminate against certain persons with convictions. For instance, child abusers cannot be allowed to have the care of children.
3.4.4 Clause 9 of this section might meet the concerns expressed in the previous paragraph if the words “or prohibition” were added after “determining requirement”.
3.4.5 In answer to question 13, in view of the considerable debate that surrounds affirmative action, we think that such action should be permitted but not required. Whether affirmative action is appropriate in any given set of circumstances may involve fine judgements. Also, affirmative action that is imposed can often be counter-productive.
3.5 RIGHTS OF WOMEN
3.5.1 In response to question 14, we believe that the Bill should include a separate section on women’s rights. This is
partly because women’s rights are in many respects in need of advancement in Northern Ireland, and partly
because if the lengthy section on children’s rights is to be retained in the Bill, then the failure to include a section on
women’s rights would appear to send a message that children’s rights matter whereas women’s rights do not.
3.5.2 We would suggest that Clauses 4 (3), 8c (1) and 2b (2) would sit comfortably in a new section on women’s rights, while Clause 14b (5) should remain where it is because it does not refer exclusively to women.
3.6 Rights to life, freedom from torture, inhuman or degrading treatment or punishment, freedom from slavery and freedom from forced labour
3.6.1 Right to life
a. Our answer to question 15 is yes. We support the inclusion of the proposed Clauses 3 and [4].
b. Proposed Clause [5] would go if our recommendation not to repeat what is already settled law were to be accepted. Notwithstanding that the provisions in Clause [5] appear in Protocol 6 to the ECHR and are enshrined in the Human Rights Act, we would like to see Northern Ireland (and, it goes without saying, the rest of the UK) free of the death penalty altogether.
3.6.2 Freedom from torture etc
a. Given the many substantiated allegations of ill-treatment of those detained under emergency laws during the conflict and the large amounts of compensation paid by the police to victims, we are surprised that the Commission has not incorporated the relevant provisions from the Code of Conduct for Law Enforcement Officials into the draft Bill. These are Article 3:
Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.
and Article 5:
No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment .
b. In relation to question 16, we believe that incorporation of the above two provisions would cover security of person.
3.6.3. Freedom from slavery or forced labour
a. It may not be considered necessary to include Northern Ireland specific provisions under this category. A problem here in England which may not exist in Northern Ireland is the importation by certain members of certain ethnic minorities of family members or servants who are in effect slaves. If this problem does exist, or could be envisaged as existing, in Northern Ireland, this would be the place to tackle it.
b. On re-visiting Article 4 (3) of the ECHR, it is not obvious to us that community service ordered by a court instead of a custodial sentence is permitted, since 3 (a) only speaks of work required to be done “in the ordinary course of detention”, in other words prison work or work done during release on parole. The Commission may wish to address this point.
3.7 CRIMINAL JUSTICE AND ADMINISTRATIVE JUSTICE
3.7.1 Right to liberty and security
a. In Clause 6 we think it would be better to spell out the categories of people covered by Article 5 (1) (e) of the
ECHR. Bills of Rights should be transparent, so that people can understand their rights just by reading them.
b. In answer to question 17, certainly in Clause 8 people should be entitled to a solicitor of their own choice, in line with Principle 1 of the United Nations Basic Principles on the Role of Lawyers.
c. In Clause 11, we suggest that “sanitary facilities” be added after “adequate accommodation”.
d. In Clause 12, we recommend the inclusion of the word “simultaneous” before “audio-recorded and video-recorded”. At the moment, video- and audio-recording are carried out separately, which is quite nonsensical.
e. We strongly support the restoration of the right of silence as envisaged by Clause 14.
f. We also strongly endorse Clause 15 on the length of detention.
g. We also strongly support Clause 16 on bail. We think it is particularly important that any deprivation of liberty should be based on admissible evidence rather than the opinion or unsubstantiated belief of a police officer.
3.7.2 Right to a fair trial
a. In Clause 4, we find it difficult to imagine a situation in which the interests of justice would clearly require the removal of the right to a prompt trial. We can envisage the prosecution regularly arguing that it needs more time to prepare its case, but we do not consider that to be an argument that invokes the interests of justice except in very exceptional circumstances. The Clause does not specify who has the right to remove the time limit, or in what circumstances it might be appropriate to do so. As a general principle, the Bill ought to encourage a situation where the police do not arrest someone unless they have a real case against them, the DPP makes swift decisions about whether to prosecute or not, and the prosecution prepares a case with all due expedition.
b. We strongly support Clause 5 on the right of silence.
c. In reply to question 18, we believe that the Bill should include the right to trial by jury. It should also include the right to waive trial by jury. In our view, rather than the test of “a serious criminal offence” (which needs to be defined if it is to remain), trial by jury should be available as of right for anyone who faces a prison sentence.
d. We strongly endorse the automatic right of appeal provided for in Clause 8.
e. We also support Clause 9 on witnesses’ rights.
f. Clause 10 is essential given the difficulties encountered by some defence lawyers in Northern Ireland.
g. Clause 11 on judges is rather weak and does not adequately reflect the United Nations Basic Principles on the Independence of the Judiciary. We suggest the following alternative wording:
“Judges shall decide cases impartially, on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. They and other court officials shall act fairly at all times and with due respect for the rights of the parties and any witnesses.”
h. We support the principle behind Clause 14, that prisoners should retain the rights they would have had while at
liberty as far as practicable. However, the Clause as currently drafted is a little vague. We recommend the following
alternative wording:
“Prisoners shall retain all the rights conferred by the Bill of Rights for Northern Ireland so far as is consistent with the fact of their imprisonment. Prisoners may only be denied any of those rights where there is a clearly justifiable reason for doing so. Prisoners who are denied any of those rights shall have the right of appeal.”
3.7.3 Non-retrospectivity of criminal laws
a. There is no need to include the ECHR provisions, which are settled law, especially Clause [2], which scarcely applies in Northern Ireland.
b. In response to question 19, we would support the inclusion in the Bill of a right not to be tried twice for the same offence. We are opposed to the weakening of the double jeopardy rule that has recently been introduced into the domestic law, because we believe that the chances of receiving a fair trial a second time round are greatly reduced.
3.7.4 Fair trials in administrative law proceedings
The title of this section is rather misleading, as the two draft Clauses refer to administrative action rather than administrative law proceedings. Otherwise, we support these two Clauses.
3.8 THE RIGHTS OF VICTIMS
3.8.1 Victims of the conflict
a. Our answer to question 20 is that, in practice, it is difficult for a Bill of Rights to have meaningful retrospective
effect. Conferring rights on the victims of all past crimes would probably not be possible and would create
expectations that could not be met and thus undermine respect for the Bill of Rights. So far as victims of the conflict
are concerned, the Northern Ireland peace agreement has already conferred special status on them, and
considerable sums of money have been made available to assist them. It is deeply regrettable that some elements
have sought to establish a hierarchy of victims, in which some are seen as more deserving than others. It is therefore
necessary to take steps to ensure that all victims are treated equally. For those reasons, we think it is appropriate
that the Bill of Rights should safeguard the rights of victims of the conflict.
b. Draft Clause1 appears to be an attempt to establish a truth and reconciliation commission by the back door. Although we believe that appropriate mechanisms need to be found for dealing with the past, ensuring the non-repetition of past abuses in the future, denying impunity to agencies and organs of the state who have been responsible for abuses, compensating victims, counselling victims, and allowing them to put closure on the past, we are not convinced that the Bill of Rights can achieve all of these aims on its own. We are also dubious about the link between truth and reconciliation. As currently drafted, this Clause does not adequately reflect the judgments of the European Court of Human Rights in the cases of Jordan, Shanaghan, Kelly & Ors, and McKerr, which established that some victims of the conflict have not had independent or effective investigations into their cases. The Court’s concerns were amplified recently by the United Nations Committee on Human Rights. The Clause also sets up a false equation between state and non-state responsibility for harm done during the conflict. Paramilitary violence has been designated as criminal throughout the conflict and has always been investigated. If the police have not been able to establish responsibility in the past, they are unlikely to be able to do so now just because the Bill of Rights says they should. Where the state has been responsible, victims have frequently not had the benefit of a proper investigation and have been denied the truth. There have also been deaths caused by paramilitaries where there are allegations of official collusion which remain unresolved. It should also not be forgotten that the state is under a duty under Article 2 of the ECHR to protect everyone’s life. In that sense, there is an element of state responsibility for every victim of the conflict.
c. We therefore suggest the following alternative wording for Clause 1, which is intended to be inclusive of all victims of the conflict:
“Every victim of the conflict is entitled to know the truth about what happened to them or their loved ones and to an independent and effective investigation into those events. Where no such investigation has taken place, the government will ensure that such an investigation is carried out. Victims shall be entitled to know the results of the investigation. All victims of the conflict shall be entitled to receive adequate compensation for their loss and suffering.”
d. We suggest adding the word “counselling” after “health care” in draft Clause 2.
3.8.2 The rights of victims for the future
a. The title of this section is rather odd. Perhaps “Victims’ rights generally” would be a better title.
b. Question 21 asked whether the definition of victims should include people who are not the victims of crime. We can think of situations where people have been victims of policies, and also victims of generalised violence, like rioting, where although a crime has been committed, the victim may not be the direct victim of that crime. Rather than extend the definition to include people who are not victims of crime, which we can see making the definition of victims extremely problematic, we suggest adding the words “directly or indirectly” after the word “collectively” in Clause 1.
c. We also suggest substituting “any familial” for “the familial” in Clause 1.
d. It seems to us that the definition of victims generally applies equally to victims of the conflict, and that therefore this definition could usefully come at the start of section 8 as a whole.
e. We recommend adding the word “effectively” after “”thoroughly” in draft Clause 2 (c), in order to comply with the rulings of the European Court of Human Rights mentioned above.
f. We would support Clause 2 (d) provided it is not intended to provide for the provision of witness impact statements in criminal trials or any opportunity for witnesses to influence sentencing. In our view victims’ desires for retribution are entirely natural but it is not appropriate for those desires to become part of the trial process, which is about society’s judgement about the best way to deal with a crime or an individual criminal rather than the personal feelings of the victim, which can never be relied upon to be objective.
3.9 RIGHTS TO FAMILY LIFE AND PRIVATE LIFE
3.9.1 Rights to family and private life
a. We support draft clauses 3 and 4.
b. We propose the following additional clause on surveillance:
“No-one shall be subjected to covert surveillance that is not properly authorised by law. Information that is obtained by means of surveillance that is not authorised by law shall not be used in evidence against any person. Information, including video- and audio-recordings, obtained during covert surveillance shall not be used for any other purpose than for which surveillance was authorised. Where people are placed under surveillance in a public place, clearly visible public notices must inform them of that fact. Any information obtained by such surveillance shall be used only for the purpose of the prevention and detection of crime.”
c. We propose the following additional clause on media intrusion:
“Everyone is entitled to protection from exposure of painful or embarrassing details of their private lives in the media, especially at times of bereavement and disharmony in personal relationships. The government will enact legislation to ensure that such personal details are not exposed in the media without the affected person’s express consent. Nothing in that legislation shall prevent the publication of any material where it is genuinely in the public interest that it should be made public.”
3.9.2 Right to marry
We support draft Clauses 2 and 3.
3.10 THE RIGHTS OF CHILDREN
3.10.1 General provisions
In response to questions 22 and 23, we think that it is right to have a separate section on children’s rights, rather than interspersing them around the Bill. However, we do not think that the draft Bill should repeat provisions that are settled law, such as those already included in the Children (Northern Ireland) Order 1995. Given that children’s rights do not fall within our area of expertise, we make the following general observation on the draft.
3.10.2 Participation rights
In relation to questions 24 and 25, draft Clause 3 seems to us to cover two different things. The first sentence is about children playing a constructive role in society and in the future, while the second sentence seems to limit their role to participation in the protection of their own rights. While we empathise with the aspiration that children should be able to play an appropriate part in Northern Ireland’s future, we are not sure that such an aim can be realised by a Bill of Rights. Children are by definition deprived of a number of rights that deprive them from playing a role in civic society, such as standing for office. This does not mean that they cannot play a role in civil society, but it does not seem to us necessary to enshrine their ability to do so in a Bill of Rights. Rights also imply duties, and children have the right to be children, and not to take on quasi adult responsibilities.
3.10.3 The family
a. In answer to question 26, we prefer the second formulation of draft Clause 1 to the first, because the second recognises that not every child has a family and not every family can function properly.
b. We suggest the addition of the words “or wishes” at the end of draft Clause 3. Although we can see the point of giving children rights of access to their parents, rather than vice versa, some of the bitterest conflicts between separated partners are about access, and as presently formulated, this Clause could potentially fuel such conflicts. If children are to have a right to access to their parents, they should have a corresponding right not to see a parent if they prefer not to do so.
3.10.4 Children in conflict with the law
a. We support the raising of the age of criminal responsibility from 10 to 12, as per draft Clause 1, in reply to question 27. So far as question 28 is concerned, we fear that if the state keeps the age of criminal responsibility under review it will be continually lowered. Twelve is quite young enough as it is. With children superficially maturing at an earlier age, and subjected as they are to relentless consumerism and access to drugs which tempts some of them into crime, we would prefer the age of criminal responsibility to be harder to change rather than easier.
b. We support draft Clause 3 (d), which distinguishes between the roles of the solicitor and the appropriate adult. We can envisage situations where the two roles can conflict. For example an appropriate adult (usually a parent), knowing the child concerned, may want to advise a child to confess to a crime, even though the solicitor’s purely legal advice is to remain silent.
c. We suggest substituting “where it would not be in his or her best interests or it is against his or her wishes” for “in exceptional circumstances”.
3.10.5 Children with disabilities
We prefer “society” to “community” in draft Clause 1, because it is wider.
3.10.6 Education
We propose an additional new Clause, as follows:
“The government will legislate to ensure that education in human rights is made part of the Northern Ireland Curriculum and that appropriate education on human rights is provided at all levels of primary and secondary education.”
Our proposal may entail some slight adjustment to draft Clause 1 under Awareness about rights.
3.10.7 Children’s economic rights
We propose an additional new Clause, as follows:
“ The State shall ensure that no child is deprived of any rights in the Bill of Rights for Northern Ireland because of poverty.”
3.11 EDUCATION RIGHTS
3.11.1 The right of effective and appropriate education for all
a. We suggest adding at the end of draft Clause 1 “except where to do so would result in a violation of that child’s
human rights”. It may seem unlikely at the moment that a Taliban refugee should find haven in Northern Ireland,
but given their views on the education of female children, any eventuality needs to be covered.
b. We recommend the addition of the words “or no” before “religious ethos” in draft Clause 3. This Clause may also
need the kind of exception we have suggested in draft Clause 1.
c. There is a reference to “clause (b) above” in draft Clause 4 that does not make sense.
3.11.3 Protection from discrimination
a. In response to question 29, there is obviously a tension between parents’ (and children’s) desires to send their children to schools that reflect their religion and ethos and their desires to ensure that their children receive the best possible education. It also seems to us that, for those schools that are organised on Catholic or Protestant lines, admission criteria are a key way of maintaining the school’s religious character. We are also aware of the debate surrounding the use of the 11-plus. We do not know the answer to this question, but suggest that a Bill of Rights cannot be used for social engineering that is very far ahead of the society in which it exists.
b. In relation to question 30, it is difficult to see how teachers in single-religion schools could promote their faith if they were open to legal action on the grounds of religious or political discrimination, perhaps by a pupil of another religion who had exercised their right to attend the school under draft Clause 1 in this section. Such a proposal might be appropriate if Northern Ireland was moving towards entirely secular or at any rate non-denominational or integrated schooling, but so long as significant numbers of parents choose single-religion schooling, teachers are entitled to retain their existing protection.
3.11.3 Human rights education
This Clause is about much more than human rights education, which makes the title somewhat misleading.
3.12 RIGHTS TO FREEDOM OF THOUGHT, EXPRESSION, INFORMATION AND ASSOCIATION
3.12.1 Freedom of thought
Rather than merely repeating the settled law of the ECHR, we believe that the Bill of Rights should establish a new right, as follows:
“All the freedoms of thought, conscience and religion protected by the Human Rights Act shall apply equally to those who profess or belong to no religion.”
3.12.2 Freedom of expression
Those involved in the controversy surrounding some parades in Northern Ireland, whether as marchers or residents, will be disappointed that the Commission has not treated with the human rights issues they give rise to, either in this section of the Draft Bill or in the section on freedom of assembly and association. We suggest the following:
“The rights to freedom of expression and freedom of assembly and association protected by the Human Rights Act include the right to peacefully parade and demonstrate, subject to any restrictions imposed by law. Those participating in peaceful parades and demonstrations shall respect the rights of those living in the areas where parades and demonstrations take place, especially the right to life, the right to freedom from inhuman and degrading treatment, the right to family and private life, and the right themselves to peacefully parade and demonstrate.”
3.12.3 Freedom of assembly
Please see the comments above.
3.12.4 It follows that our answer to question 31 is yes.
3.13 LANGUAGE RIGHTS
3.13.1 At the end of draft Clause 2, we recommend adding the words “or human rights”.
13.3.2 In draft Clause 4 we prefer “Northern Ireland peace agreement” to “Belfast (Good Friday) Agreement”.
13.3.3 With the above exceptions, our answer to question 32 is yes and question 33 therefore does not apply.
3.14 SOCIAL, ECONOMIC AND ENVIRONMENTAL RIGHTS
3.14.1 A general provision to govern social and economic rights
In response to question 34, the only truly effective way of protecting social and economic rights is to provide enough money to meet everyone’s social and economic needs in society. The reason that such rights tend to be less well protected than civil and political rights is that they cost more. It is cheaper, for instance, to provide everyone with a fair trial than it is to ensure that everyone has a decent roof over their heads. There is a danger, as has happened in England in relation to the policy of care in the community, that conferring these rights will mean that budgets that were inadequate in the first place will be diverted to meet the needs of those who make it first past the post to the courts.
3.14.2 Protection of property
It strikes us as rather strange that the very first social, economic or environmental right to be mentioned should be property. Also, since this clause adds nothing to the First Protocol of the ECHR, we see no need to include it. Moreover, its interaction with proposed draft Clause 1 above would mean that people had an enforceable right to protection of their property, which could severely deplete the resources available for the realisation of other rights covered in this section which many would regard as being much more important, such as the right to health care.
3.14.3 The right to an adequate standard of living
We do not know what is meant by “civic care” in draft Clause 3. The definition at page 90 of the Commission’s consultation document does not help, in our view, to distinguish civic from social care. We think it important not to create new terms that are not defined or obvious in their meaning. To do so will lead to expensive litigation and/or different bodies applying different definitions and standards.
3.14.4 The right to housing
Similarly, we are not sure what is meant by “secure establishment”, although we sympathise with the Commission’s remarks on page 91 about the technical meaning of the phrase “security of tenure”. “Secure tenure” might be better, or “live under a legal arrangement that guarantees security”.
3.15 INTERPRETATION
3.15.1 We note that the phrase “Belfast Agreement” has crept into draft Clause 1.
3.15.2 We recommend adding “to the extent that they are consistent with the Bill” at the end of draft Clause 1. The law and practices of other countries may be the last thing to which one would want the courts to have regard, whether “due” or otherwise!
3.16 LIMITATIONS
3.16.1 As a general principle, we consider that Bills of Rights should contain as few limitations as are possible. It follows that we strongly oppose a general limitation clause. A clause such as that contained in the draft Bill would allow the courts to dismantle rights that ought to be unqualified.
3.16.2 It also follows that we would not like to see any more individual limitation clauses sprinkled through the draft Bill than already appear.
3.16.3 The above remarks address questions 35 and 36.
3.17 EMERGENCIES
It is our view that the Bill of Rights should be non-derogable in its entirety. If the Commission accepts our advice not to repeat the provisions of the European Convention on Human Rights, then none of the new provisions proposed seem to us to be candidates for derogation, even in a genuine state of emergency.
3.18 ENFORCEMENT
3.18.1 In response to question 37, we would like to see a new constitutional court for Northern Ireland, which would hear all cases brought under the Human Rights Act, the Northern Ireland Bill of Rights, cases of judicial review and other constitutional cases. We believe that the Diplock courts violated the human rights of defendants by depriving them of trial by jury and by admitting evidence at a lower threshold than applies in the ordinary courts. The fact that the same judges who presided over the Diplock courts also hear cases in the High Court means that they also preside over human rights cases at the moment. This is not a satisfactory state of affairs, in our view. We would prefer to see a totally new court with new judges that could bring a fresh approach to such matters untainted by the past.
3.18.2 We agree (question 38) that the Bill should confer an effective remedy for violations of the rights contained in the Bill. We would also like to see the Human Rights Act amended so that Article 13 of the Convention is incorporated into domestic law. Failing that, then the Bill should include a provision giving an effective remedy for any violation of Convention rights as well as rights contained in the Bill.
3.18.3 So far as question 39 is concerned, we would like to see all human rights matters dealt with by a new constitutional court.
3.18.4 In reply to questions 40 and 41, we do not agree that any interested person or body should be able to litigate under the Bill of Rights. For that reason, we would omit the words “or body” from draft Clauses 1 and 2. In our view, only individuals who have been, or face the prospect of being, directly affected by human rights violations, or bodies who represent their interests and have been nominated by them, should be able to litigate. Otherwise, those who are inimical to human rights will try to use the law to undermine them.
3.18.5 Our reply to questions 42 and 43 is that there would only be any point in referring proposed legislation to the courts if the court concerned was a constitutional court along the lines that we have proposed.
3.19 ENTRENCHMENT
3.19.1 As the Bill is currently drafted, the mechanisms for making any changes to the Bill of Rights are predicated upon the existence of the Northern Ireland Assembly in its present form, including its provisions for cross-community votes. If Northern Ireland ever achieves a state of peaceful stability, or indeed if the Assembly collapses, those arrangements may not remain appropriate.
3.19.2 In any case, it is not desirable that politicians should be able to alter a Bill of Rights without the consent of the people. In reply to question 45, therefore, we are of the view that any changes to the Bill of Rights must secure a two thirds majority in a referendum of all those eligible and registered to vote in Northern Ireland elections.
NOVEMBER 2001
For Peace Justice & Human Rights
