British Irish RIGHTS WATCH (BIRW)

SUBMISSION TO THE NORTHERN IRELAND AFFAIRS COMMITTEE: HUMAN RIGHTS BILL FOR NORTHERN IRELAND

1.         INTRODUCTION

1.1       British Irish RIGHTS WATCH (BIRW) is an independent non-governmental organisation that has been monitoring the human rights dimension of the conflict, and the peace process, in Northern Ireland since 1990.  Our vision is of a Northern Ireland in which respect for human rights is integral to all its institutions and experienced by all who live there.  Our mission is to secure respect for human rights in Northern Ireland and to disseminate the human rights lessons learned from the Northern Ireland conflict in order to promote peace, reconciliation and the prevention of conflict.  BIRW’s services are available, free of charge, to anyone whose human rights have been violated because of the conflict, regardless of religious, political or community affiliations.  BIRW takes no position on the eventual constitutional outcome of the conflict.

1.2       This submission is provided in response to the Northern Ireland Affairs Committee’s decision to consider written evidence in the matter of a short inquiry into the process toward a Human Rights Bill for Northern Ireland and focus on the scope which any such Bill should take.

1.3       We welcome the interest of the Committee in the important matter of a Human Rights Bill for Northern Ireland which we refer to, in accordance with the Good Friday Agreement, as A Bill of Rights for Northern Ireland.

2.         THE GOOD FRIDAY AGREEMENT AND POLITICAL COMMITMENT

2.1       We remind the Committee of the commitment made in the Good Friday Agreement of 1998 that, “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”.

2.2       The Northern Ireland Human Rights Commission presented its Advice to the Secretary of State on 10 December 2008 with an assurance of a three month consultation.  Since then the comments of the Secretary of State to the Committee on 1 April 2009 have not been helpful and the consultation process appears stalled.  We urge the Government to legislate for a Bill of Rights for Northern Ireland.  This legislation should incorporate many of the proposals of the Advice which was formulated after extensive consultation with the people of Northern Ireland and which should now be subject to further consultation and discussion.

2.3       We are aware that the Government has published a Green Paper “Rights and Responsibilities; developing our constitutional framework” (Cm 7577) March 2009 and that this document and other discussions form the basis of an initial consultation on introducing a Bill of Rights for all of the UK.  BIRW does not consider that this UK wide process should hinder the implementation of a Bill of Rights for Northern Ireland. We welcome the comment in the Government’s Green Paper at paragraph 4.38 page  60) that “Importantly, the Government does not wish the public debate around a UK instrument to detract from the process relating to a potential Bill relating to the particular circumstances of Northern Ireland.”

3.         A BILL OF RIGHTS FOR NORTHERN IRELAND AS PRIMARY LEGISLATION

3.1       It is the opinion of BIRW that a Bill of Rights for Northern Ireland must meet certain universally-applicable criteria.  These can be summarised as follows: ownership, relevance, protection of minority rights, entrenchment, enforcement, and flexibility.

3.2       BIRW stresses at the outset that a Bill of Rights for Northern Ireland must belong to as wide a cross-section of the public as possible, including in particular those who are marginalised in society and who by definition find it more difficult to access their rights.  In this regard a Bill of Rights for Northern Ireland must be relevant to the population it protects.  It must reflect their concerns and must deal with issues that matter to them fairly and equally.  A Bill of Rights for Northern Ireland must protect the disadvantaged and it must recognise that minorities need protection from the majority, especially in a democracy, where minorities can always be outvoted.  As the Committee is aware, this is especially pertinent given the demography of Northern Ireland.  A Bill of Rights for Northern Ireland must be capable of delivering change on the ground, not just for groups of people but also for individuals. 

3.3       Finally BIRW urges that a Bill of Rights for Northern Ireland must enjoy a statutory basis and must contain strong enforcement mechanisms whilst being capable of amendment to reflect changes for the better in society, while at the same time being protected from changes that are the result of political ideology or in response to moral panic.  Therefore, a Bill of Rights for Northern should be fully enforceable through the courts. 

3.4       A Bill of Rights for Northern Ireland would grant the people of Northern Ireland some fundamental rights that could not be removed, undermined or eroded by powerful institutions against which individuals have no defence.  This would give everyone a tangible stake in the society of Northern Ireland, undermining those elements both within and without who would like to subvert those who are weak and disenfranchised by lack of realisable rights.

3.5       On this point BIRW argue that A Bill of Rights for Northern Ireland should not simply replicate what is contained in the Human Rights Act 1998 or in any measure reduce the level of protection provided by that Act, but in fact adds protection to the rights enshrined in the Convention.  A Bill of Rights for Northern Ireland should be an instrument that builds on the platform provided by the Act and the Convention to strengthen and augment those rights.  In addition, A Bill of Rights for Northern Ireland should be able to rectify defects in the Human Rights Act, such as the omission of Article 13, which provides for effective remedies.

4.         RIGHTS AND RESPONSIBILITIES

4.1       BIRW is aware that most human rights imply some kind of responsibility.  For example, the right to freedom from discrimination implies that others must not exercise discrimination.  However, the responsibility for enforcing rights lies with the state and with emanations of the state.  A Bill of Rights for Northern Ireland should be just that, a bill which confers rights on all the people of Northern Ireland.  It should not seek to lay responsibility for upholding human rights on individual citizens by creating a set of responsibilities.  In our view, the idea that with rights come responsibilities, or that rights have to be earned, are essentially questions of morality, which cannot be legislated for.  Rights, in our view, belong to everyone equally.  These standards are the mark of a civilized democracy, and should not be diluted by importing into rights legislation any exchange for responsibilities.  For example, we do not deny criminals a fair trial because their behaviour has been irresponsible.

 

4.2       BIRW does not agree with the position of the Government on this matter when it states that any new constitutional instrument should encapsulate the responsibilities we owe to one another (CM 7577 paragraph 2.1 page 14).  The incorporation of responsibilities was not within the mandate of the Northern Ireland Human Rights Commission.  The enforcement of responsibilities would mean gross intrusions into the privacy of individuals.

 

5.         THE PARTICULAR CIRCUMSTANCES OF NORTHERN IRELAND

 

5.1       The particular circumstances of Northern Ireland were indicated in the Good Friday Agreement of 1998 and it is important that they are stated again.  The Agreement listed five principles: mutual respect; parity of esteem; commitment to the principles of partnership, equality and mutual respect and to the protection of civil, political, social, economic and cultural rights; a culture of tolerance; and non-violence.  The Committee will be aware that the Agreement also set out a number of specific rights that must be considered part of Northern Ireland’s particular circumstances and which now serve to add value to the rights protected by the Convention incorporating as they do social, economic and cultural rights.  These include:

 

- the right of free political thought

- the right to freedom and expression of religion

- the right to pursue democratically national and political aspirations

     - the right to seek constitutional change by peaceful and legitimate means

- the right to freely choose one’s place of residence

     - the right to equal opportunity in all social and economic activity regardless of class, creed, disability, gender

       or ethnicity

- the right to freedom from sectarian harassment, and

- the right of women to full and equal political participation.

5.2       The Good Friday Agreement also included general references to issues that have a human rights basis:

    - equality and non-discrimination, including ‘in relation to religion and political opinion, gender, race, disability,

      age, marital status, dependants and sexual orientation

- reconciliation

- rights of victims

- religion, language, culture and heritage

- citizenship, nationality and minorities

- poverty, social exclusion and economic disadvantage

- housing

- education

- employment

- criminal justice, policing and prisoners

- political representation and participation

- parading and the use of symbols and emblems.

5.3       In line with the recommendations of the Northern Ireland Human Rights Commission BIRW supports the inclusion of the following additional rights:

- right to the highest standard of healthcare

-  right to a standard of living

- right to a sustainable environment

- right to work

- right to social security

- rights of women and children

5.4       The way in which BIRW think the Bill of Rights should reflect the particular circumstances of Northern Ireland is by laying down those rights stated above, over and above what is covered by the Convention and the Human Rights Act 1998, thus enabling 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 and this is justly so given Northern Ireland’s conflict ridden past and the possibility of a fully integrated rights based culture for the future.

6.         RIGHTS, JUSTICABILITY AND ENFORCEMENT

6.1       BIRW strongly advocate that all the rights contained in a Bill of Rights for Northern Ireland are justicable, meaning that all rights are capable of judicial enforcement.  One of the major weaknesses of the Human Rights Act 1998 lies in the area of enforceability.  If a court is unable to interpret a piece of primary legislation so as to make it compatible with the Convention, it has no power to strike that legislation down, but may only declare it to be incompatible.  It is then for Parliament to decide whether to repeal or amend the legislation.  While this preserves the doctrine of parliamentary supremacy, it undermines the rule of law which is crucial in providing a Bill of Rights with the force to protect the individual from the vagaries of state interference.

6.2       In our view, a Bill of Rights for Northern should be fully enforceable through the courts.  It should therefore be binding on the Executive and have the power to strike down incompatible legislation.  A Bill of Rights for Northern Ireland should therefore be an instrument of primary legislation against which any other legislation must be measured in terms of compatibility.

6.3       BIRW accept that some economic and social rights cannot always impose immediate obligations on the state.  Some economic and social rights frequently impose an obligation of ‘progressive realisation’ rather than of immediate effect upon the state.  We accept this as a political reality in the process of resource allocation and decision making by the organs of the state. However, progressive realisation should require that all appropriate measures be taken to achieve the full effectiveness of these economic and social rights. 

6.4       A Bill of Rights for Northern Ireland needs embedded within it strong enforcement mechanisms.              Rights on paper are worthless unless they can be enforced.  BIRW maintain that enforcement through the judicial system is the most effective way to ensure compliance, compatibility and enforcement.  A robust judicial appointments process having utmost integrity and public confidence would ensure the validity of rights enforcement through the legal system. 

6. 5      BIRW urges the Committee to consider the failings in the process of the incorporation of the Convention through the Human Rights Act 1998 and that the lessons of this failure be learnt in the process of introducing a Bill of Rights for Northern Ireland.  You will be aware that the Human Rights Act1998 omitted Article 13 of the Convention.  Article 13 states “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”  This omission must be avoided in introducing a Bill of Rights for Northern Ireland.

6.6       A Bill of Rights for Northern Ireland would therefore be an instrument fully incorporating, enhancing and supplementing the provisions of the Convention.

6.7       Finally, BIRW advocate that for full effectiveness the Human Rights Act 1998 and a Bill of Rights for Northern Ireland require the mechanisms of a written constitution incorporating a constitutional court.  Admittedly this proposal goes beyond the remit of the Committee’s brief but BIRW maintains that the complexities of the contemporary state demands a written statement amounting to a covenant with its people.  

7.         CONCLUSION

7.1       The Committee is aware of the Advice to the Secretary of State for Northern Ireland on “A Bill of Rights for Northern Ireland” prepared by the Northern Ireland Human Rights Commission (10 December 2008).  The Advice was prepared after an extensive period of consultation with the people of Northern Ireland.  The Advice was provided in response to the commitment made in the Good Friday Agreement and under section 69(7) of the Northern Ireland Act 1998 (“The Secretary of State shall request the Commission to provide advice of the kind referred to in paragraph 4 of the Human Rights section of the Belfast Agreement.”). BIRW contributed to the consultation process in the production of the Advice and welcomed the publication of the Advice.

7.2       BIRW reminds the Committee of the compelling nature of the Advice and urges that its recommendations, together with those made in this submission by BIRW and no doubt by others, form the core of the Committee’s consideration and informs both further consultation and its own recommendations to the Secretary of State and Parliament.

7.3              We conclude our submission by offering a summary of our advice to the Committee. First and foremost, a crucial measure of success for a Bill of Rights for Northern Ireland is that the majority of people in society, whatever their race, religion, ethnicity, or political or community affiliations, can say, ‘This is my Bill of Rights.’  Secondly, a Bill of Rights for Northern Ireland must be relevant to the population it protects.  It must reflect their concerns and must deal fairly and equally with issues that matter to them. It must be comprehensive and incorporate fundamental economic, social and cultural rights as well as vital civil and political rights.  Thirdly, it must protect the disadvantaged in Northern Ireland society.  Fourthly, a Bill of Rights must be capable of delivering change on the ground, for groups of people and for individuals.  A Bill of Rights for Northern Ireland must enjoy a primary statutory basis and must contain strong enforcement mechanisms avoiding the mistakes made in the partial incorporation of the Convention in the Human Rights Act 1998. Finally, a Bill of Rights for Northern Ireland must be capable of amendment to reflect changes for the better in society, while also being protected from changes that are the result of the overarching exercise of executive authority, political whimsy or misplaced public pressure.

APRIL 2009