PROGRESSING
A BILL OF RIGHTS
FOR NORTHERN IRELAND
AN UPDATE
Published April 2004
ISBN 1 903681 42 1

Northern Ireland Human Rights Commission
Temple Court
39 North Street
Belfast BT1 1NA

Tel: 028 9024 3987
Fax: 028 9024 7844
Email: information@nihrc.org
Website: www.nihrc.org
 

Progressing a Bill of Rights for Northern Ireland: An Update
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Progressing a Bill of Rights for Northern Ireland: An Update
If you would like to submit comments on anything contained in this report, please do so by 1 August 2004.
Write to:

The Chief Executive
Northern Ireland Human Rights Commission
Temple Court
39 North Street
Belfast BT1 1NA

Or email the Commission at:
information@nihrc.org
Or send a fax to the Commission on:
(028) 9024 7844
If you would like further copies of this report please telephone the Commission on:
(028) 9024 3987

This document is accessible on the Commission’s website at www.nihrc.org. It can be made available in other formats on request to the Northern Ireland Human Rights Commission.
 

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Progressing a Bill of Rights for Northern Ireland: An Update
 

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Progressing a Bill of Rights for Northern Ireland: An Update
CONTENTS
Page
Introduction 7
The Preamble to the Bill of Rights 17
Section 1 Interpretation 21
Section 2 Democratic rights 25
Section 3 Identity and community rights 29
Section 4 The right to equality and non-discrimination 35
Section 5 The right to life 41
Section 6 The right to be protected against violence 43
Section 7 The right to liberty 45
Section 8 The right to a fair trial 49
Section 9 Civil and administrative justice 53
Section 10 The rights of victims 55
Section 11 The rights to a family life and a private life 59
Section 12 The rights of children 61
Section 13 Education rights 65
Section 14 Language rights 67
Section 15 Social, economic and environmental rights 71
Section 16 Limitations 77
Section 17 Emergencies 79
Section 18 Enforcement 83
Section 19 Amendments 85
Section 20 Short title and European Convention rights 87
Appendix 1 The proposed Bill of Rights
for Northern Ireland Act 2004 93
Appendix 2 The Commission’s 2001 proposals for
a Bill of Rights for Northern Ireland 109
Appendix 3 The text of the European Convention rights 135
Appendix 4 Results from a 2004 opinion survey 145
 

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Progressing a Bill of Rights for Northern Ireland: An Update
 

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Progressing a Bill of Rights for Northern Ireland: An Update
INTRODUCTION
A widespread consultation
The Commission was given the task under the Belfast (Good Friday) Agreement and the Northern Ireland Act 1998 of consulting and reporting on the scope for defining rights in a Bill of Rights for Northern Ireland. It has been encouraged by the number and quality of the submissions it has received both before and after the publication in September 2001 of its consultation paper Making a Bill of Rights for Northern Ireland. As part of this consultation the Commission has organised a series of public seminars at which some of the more difficult issues have been openly discussed with the groups and individuals most directly concerned. It has also benefited from a series of public and private discussions with leading international human rights lawyers and judges. The overwhelming majority of those involved in the consultation have supported the idea of a Bill of Rights for Northern Ireland which reflects its particular circumstances. This is borne out by the results of opinion surveys. But there are of course differences on precisely what a Bill of Rights should contain.
Purpose of this progress report
The purpose of this progress report is to respond positively to the various comments and criticisms made about the Commission’s 2001 consultation paper in the light of this widespread consultation and to give an up-to-date account of developments on the Bill of Rights process. The report was initially intended as a working paper to assist the participants in the proposed “Roundtable” which was under discussion with the political parties throughout 2003. However, despite repeated consultations with the parties and the two Governments, and a measure of agreement with some of the potential participants, it did not prove possible to establish an inclusive political forum devoted to the formulation of the Bill of Rights. As it now seems unlikely that an initiative of this kind can be taken forward while the review of the Agreement is under way, the Commission wishes to restore some momentum to public debate on the Bill of Rights by identifying the issues on which there appears to be some consensus and setting out the possibilities in respect of those on which there is not yet consensus.
Appendix 1 in this report brings together all of the Commission’s latest proposals, while Appendix 2, for ease of reference, reproduces the 2001 proposals. Appendix 3 contains the rights currently protected by the European Convention on Human Rights and its Protocols. Appendix 4 summarises the results of the most recently commissioned public opinion poll on a Bill of Rights.
If you would like to comment on anything said in this report, please do by 1 August 2004. Write to: The Chief Executive, Northern Ireland Human Rights Commission, Temple Court, 39 North Street, Belfast BT1 1NA. Or email the Commission to information@nihrc.org. Or send a fax on (028) 9024 7844.
 

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Progressing a Bill of Rights for Northern Ireland: An Update
The current intention of the Commission is to develop the proposals in this report in the light of responses made to it and to publish a further report by the end of 2004. This would set out the conclusions which the present Commissioners have reached on the scope for a Northern Ireland Bill of Rights and their recommendations on particular issues. To date the Northern Ireland Office has neglected to fill a number of vacancies on the Commission which have arisen since September 2002. The Commission finds this extremely regrettable and wishes to see appointments made as soon as possible in accordance with the criteria suggested by the Commission last year. New Commissioners will require some time to familiarise themselves with the work of the Commission on the Bill of Rights and to decide whether they agree with the positions so far adopted.
Major criticisms and concerns
Despite the general support for the idea of a Northern Ireland Bill of Rights there have been some significant and strongly expressed criticisms of the proposals in the consultation document. The Commission wishes to respond positively to these concerns. The essentials of the criticisms that have been made from various points of view can be summarised as follows:
(a) Not doing what the Agreement required and/or undermining its main purpose
This criticism has been made by the main nationalist parties and some others, including former Commissioners who have resigned from the Commission. The central concern is that the Commission has not given sufficient focus to guaranteeing parity of esteem for the two communities which is said to be the essential basis of the Agreement. An associated complaint is that the Commission’s proposal that individuals should have the right not to be treated as a member of either main community may undermine the equality provisions of the Agreement since it may make it more difficult to monitor fair participation by Catholics and Protestants in the workforce and more generally.
(b) Doing what the Agreement did not prescribe or authorise
A second major criticism which has been made by the main unionist parties and others is that the Commission has exceeded its mandate by proposing a comprehensive Bill of Rights that deals with issues that have nothing to do with the particular circumstances of Northern Ireland. An associated concern is that the Commission’s proposals would result in the protection of rights in Northern Ireland that would not be protected in the rest of the United Kingdom. It has also been argued from this perspective that the inclusion of a wide range of social and economic rights would interfere with the proper responsibilities of politicians in the allocation of scarce resources.
 

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Progressing a Bill of Rights for Northern Ireland: An Update
(c) Not giving a sufficient broad interpretation of its mandate
Many non-governmental pressure groups, on the other hand, have criticised the Commission for not giving a sufficiently broad interpretation of its mandate to take account of international standards. A number of bodies representing disadvantaged groups, notably those concerned with disability, with minority ethnic and religious communities and with victims and ex-prisoners, have argued that the Commission’s proposals would not give effective protection to their particular needs.
The Commission’s view of the human rights aspects of the Agreement
In responding to these criticisms and concerns the Commission has sought to bear in mind the full range of human rights and related provisions in the Agreement, some of which have not always been given equal weight in the responses to the Commission’s initial proposals. The provisions can be categorised into two main groups: those which are included in the section of the Agreement which refers to the Commission’s duty to advise the Secretary of State on the scope for a Bill of Rights and those which are referred to in other parts of the Agreement.
The provisions of the Agreement directly related to the proposed Bill of Rights
The first group of provisions raise a number of issues relating to the possible addition of rights to those contained in the European Convention on Human Rights:
(a) The particular circumstances of Northern Ireland
This has proved to be one of the most difficult issues facing the Commission. The responses to the consultation have ranged widely from a restrictive to an expansive approach to the wording of the Agreement. Those who have favoured a restrictive approach have argued that the wording was intended to limit the proposed Bill to a few additional provisions in respect of the two main communities which are not adequately covered in the European Convention on Human Rights. Those who have favoured an expansive approach have argued that because of factors such as the conflict and hurt experienced in Northern Ireland, the relative socio-economic deprivation of the area and the indivisibility of the concept of human rights, a comprehensive Bill of Rights is needed covering the full range of internationally accepted human rights.
The Commission’s provisional conclusion on this issue is that it is not possible to resolve these differences by any detailed analysis of the actual words used by those who negotiated this part of the Agreement. It seems likely that they differed amongst themselves as to the intended meaning of those words. But the Commission’s consultation to date has indicated that the preferred approach of the vast majority of those who have taken an interest in the matter is to adopt a Bill that covers not only rights of particular concern to the two main communities but
 

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Progressing a Bill of Rights for Northern Ireland: An Update
also those of other disadvantaged communities and individuals. For its part the Commission prefers to focus attention on the kind of Bill that may best assist in ensuring lasting peace and stability in a divided and disadvantaged society that faces an uncertain constitutional future. It is conscious that as well as having a duty to advise the Secretary of State on the scope for a Bill of Rights in Northern Ireland it has a duty (imposed by section 69(3)(b) of the Northern Ireland Act 1998) to advise the Secretary of State and the Executive Committee of the Northern Ireland Assembly of the measures which ought to be taken to protect human rights in Northern Ireland.
(b) Parity of esteem for the two communities
This is clearly one of the fundamental principles of the Agreement and (quite apart from the Agreement) an essential prerequisite for future peace and stability. But from the start of its consultation the Commission has made it clear that international standards and common justice require that other ethnic and religious minority communities must also be protected. It has also been concerned not to institutionalise sectarian or communal divisions so that it can protect the rights and interests of those who wish to assert other or multiple identities, which is also clearly prescribed in all the relevant international standards. These approaches have received clear endorsement in opinion surveys conducted on behalf of the Commission (see Appendix 4 at page 145). In its consultation paper the Commission sought to combine these objectives by proposing a formulation aimed at guaranteeing the rights and interests of all ethnic and religious communities as well as of those who do not wish to be treated in that way. This has clearly not met with general approval. In the light of the strong representations on the issue, the Commission is considering an alternative approach which would seek to give explicit and effective protection to members of the two main communities as such, and separate but effective protection to members of minority ethnic and religious communities. The details of these revised proposals are explained at Section 3 below (see page 29).
(c) Equality duties and rights
The Agreement requires the Commission to consider the inclusion in the proposed Bill of a general duty on government and public bodies to respect and treat equally the identity and ethos of both communities and of a right not to be discriminated against and to equality of opportunity in both the public and private sectors. However, these provisions were adopted before the enactment of sections 75 and 76 of the Northern Ireland Act 1998, which have already imposed statutory duties of this kind. The subsequent adoption of two new European Union Equality Directives and the associated proposals for a new Single Equality Act are also relevant.
The Commission has had a series of discussions with the Equality Commission for Northern Ireland on how the equality provisions of a Bill of Rights and more

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Progressing a Bill of Rights for Northern Ireland: An Update
specific legislation can best be co-ordinated. The general consensus has been that any equality clause in the proposed Bill should be in general terms, leaving it to the Equality Commission to propose and implement appropriate legislation on matters of detail. These discussions have also raised issues of how the existing regulations on monitoring employees and applicants for employment could be amended to take account of the internationally recognised right not to be treated as a member of a minority community against one’s will without undermining the fair participation provisions of the current equality legislation. One way of achieving this that has been suggested would be to expand the categories for monitoring from the current limited range (Protestant/Catholic/Undetermined) to take account of voluntarily asserted communal or ethnic or multiple identities, while preserving the prohibition on the assertion of a false affiliation.
(d) Drawing on international standards and experience
It is clear that any provisions of a Northern Ireland Bill of Rights must be compatible not only with the European Convention on Human Rights (ECHR) but with other international human rights standards to which the British and Irish Governments are committed. Neither Government could enact or endorse a Bill that was incompatible with those commitments. On the other hand it would clearly be impractical to attempt to incorporate into the Bill the full range of international standards. Many of the detailed provisions of international human rights conventions would not make sense if they were made directly enforceable in Northern Ireland law, not least because many are directed at progressive action by national governments and some contain a wide range of possible measures to choose from.
However there are some general trends in recent international developments, both within the United Nations and in Europe, notably the European Union’s Charter of Fundamental Rights, that provide a useful foundation for a specific Northern Ireland Bill. One is the international consensus that social and economic rights form an indispensable element in the protection of human rights. Another is the increasing recognition of the need for positive action to ensure effective equality for previously disadvantaged groups. A third is the recognition of the need for a balance between state duties to recognise and protect distinctive ethnic, religious and linguistic communities, which may be expressed as a form of group right, and the rights of individuals either to practise their religion, enjoy their culture and use their language as members of such communities or to choose not to be treated as such without suffering any disadvantage.
The Commission’s general approach is that it is better to follow these general trends in the development of a specific Northern Ireland Bill rather than attempt to incorporate substantial sections of a number of international conventions. In line with those trends, the only two international human rights treaties which the Commission has chosen to incorporate within the Bill of Rights are the European Framework Convention for the Protection of National Minorities (see Section 3(4)
 

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Progressing a Bill of Rights for Northern Ireland: An Update
at page 30 below) and the UN’s Convention on the Rights of the Child (see Section 12(1)(c) at page 62 below).
Other provisions of the Agreement relating to human rights
The second group of references to human rights in the Agreement are concerned with the following additional issues:
(a) The commitment by the two Governments to continuing protection of civil, political, social and cultural rights in Northern Ireland.
This commitment is contained in the new British-Irish Agreement which is appended to the main Agreement. It has been formally adopted as an international treaty replacing the Anglo-Irish Agreement of 1985. The underlying purpose is to require both the British Government and the Irish Government, in the event of a change in the constitutional status of Northern Ireland, to guarantee continuing protection not only of parity of esteem and just and equal treatment for the identity, ethos and aspirations of both communities but also of full respect for and equality of civil, political, social and cultural rights and freedom from discrimination for all citizens. The Commission considers that the provisions of a Bill of Rights for Northern Ireland should in principle form the basis of this continuing protection. The reference to full respect for social and cultural as well as civil and political rights gives further support to the view that a broad interpretation should be given not only to the particular circumstances of Northern Ireland but also to international standards and experience.
(b) The commitment by the pro-Agreement parties to a specified list of rights
The human rights section of the Agreement also contains a list of rights to which the political parties, but apparently not the two Governments, affirmed their commitment:
• the right to 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 of freedom from sectarian harassment,
• the right of women to full and equal political participation.
Most of these rights were set out in the Downing Street Declaration of 1993, following discussions between the Taoiseach and a delegation of loyalists. The two final items, however, were added by parties to the Agreement. In its consultation paper the Commission did not draw attention to this list, although it
 

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Progressing a Bill of Rights for Northern Ireland: An Update
did recommend specific provisions on sectarian harassment and women’s participation. It took the view that the other items, notably the rights to free political thought and to seek constitutional change, were clearly covered by the general formulations in the European Convention on Human Rights. In the light of some responses to the consultation document and the continuing ambivalence by some sections of both main communities to the use of violence in pursuit of political objectives, there may be a case for including more specific provisions in respect of the underlying concept that these rights may be legitimately pursued only by democratic and peaceful means.
(c) The proposed joint Charter of Rights for the island of Ireland
The reference in the Agreement to a possible all-Ireland charter of rights to be drawn up by the two human rights commissions in Northern Ireland and the Republic of Ireland may also be traced back to earlier inter-governmental documents. But there is clearly a potential overlap between the proposed Bill of Rights for Northern Ireland and the idea of an all-Ireland charter. The two human rights commissions have recently begun the process of discussing and consulting on how work on the two might best be co-ordinated and what the relationship between them should be in substance and content. Copies of a pre-consultation document setting out three possible approaches have already been circulated to the political parties and other interested bodies, and are available from either Commission.
(d) The rights of victims
In its consultation paper the Commission suggested that a distinction might be made between victims of the (past) conflict and future victims of human rights violations. A number of responses have criticised this distinction as both wrong in principle and difficult to apply in practice. As will be seen below (at Section 10), the Commission has revised its approach to the issue and is suggesting a unified approach to all relevant victims.
(e) The need to encourage tolerance and reconciliation and to create space for integration
Although this is not strictly part of the human rights agenda in the Agreement or more generally, the promotion of tolerance, reconciliation and integration figure prominently in other parts of the Agreement. The Commission is anxious that its proposal for a Bill of Rights should encourage tolerance and reconciliation and should not entrench communal divisions. Experience in some other divided societies suggests that emphasising exclusive and unchangeable communal identity may perpetuate and exacerbate communal divisions and increase the risk of political deadlock. In a divided society it is important to maintain a balance between the protection of the rights of the two main communities and permitting or encouraging individuals to assert a shared or non-communal identity.
 

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Progressing a Bill of Rights for Northern Ireland: An Update
There is therefore good reason in the interests of longer term political and social stability to include in any bill of rights for a divided society specific provisions to assist those who do not wish to be defined solely (or at all) in terms of their communal roots, and provisions designed to play a positive role in encouraging more general integration, whether in education, housing or local or regional politics. The right not to be treated as a member of an ethnic, religious or linguistic community or minority or to suffer any disadvantage from exercising that choice, which is included in all the recent international documents on minority rights, is only one aspect of this wider objective. There may also be a need for positive measures to promote mutual tolerance and respect between members of the main and smaller communities, to encourage integration for those who wish it and to make space in terms of identity and equality for those who reject any communal affiliation.
Socio-economic rights and disadvantaged groups
There are two other issues that have figured prominently in the consultation on the Bill of Rights, though they are not directly derived from the provisions of the Agreement: whether and to what extent socio-economic rights should be included in the Bill and whether and to what extent special provisions should be included for disadvantaged or vulnerable groups, such as those who are have a physical, sensory, mental or learning disability, women and children. The Commission’s proposals in its consultation document on both issues have been widely criticised, first on the ground that it has exceeded its mandate and trespassed on issues that should be left to the political process, secondly because its proposals on socio-economic rights are insufficiently precise and thirdly because its proposals have given undue prominence to the rights of children and insufficient attention to other disadvantaged and vulnerable groups.
The Commission has been reviewing its approach to both issues. Pending further discussion with the political parties, and more generally, it may be best to draw attention to some major concerns and some ways in which they might be dealt with.
(a) Socio-economic rights
The responses that opposed the inclusion of socio-economic rights highlighted three major concerns: that decisions on the allocation of resources for health, housing and the environment are primarily political and cannot in practice be decided by judges; that there can be no justification for granting rights on such matters to people in Northern Ireland when they are not granted in the rest of the United Kingdom or (except as noted below) in the Republic of Ireland; and from a slightly different perspective that including necessarily limited and imprecise rights of this kind may raise expectations that cannot in practice be delivered. The main arguments in favour of their inclusion have been, first, that not to do so would be in conflict with current international standards and experience and, second, that the overwhelming body of responses and the public opinion surveys carried out for the Commission have supported provisions in this area (see 14
Progressing a Bill of Rights for Northern Ireland: An Update
Appendix 4 at page 145). But again from a slightly different perspective there has been some concern that the Commission’s initial proposals would not give directly enforceable rights to those affected.
The Commission has been attempting to find ways of meeting these divergent concerns. As will be seen in Section 15 below, it is suggesting three possible ways forward. The first is to include provisions in the Bill of Rights guaranteeing that essential minimum standards in this area will be directly enforceable through the courts. The second is to include provisions requiring a progressive realisation of a much broader set of social, economic and environmental rights, relying not primarily on implementation through the courts. The third possibility is to adopt a mixed approach – insisting that minimum standards be directly enforceable but requiring other standards to be achieved progressively over time in other ways. It is worth noting that socio-economic rights are dealt with in a programmatic way in Article 45 of the Irish Constitution, where they are set out as “Directive Principles of Social Policy”.

The Commission is also suggesting that, to avoid problems over a lack of parity with the rest of the United Kingdom or Ireland, any social, economic or environmental rights of this kind should be strictly limited to areas of responsibility which have been formally devolved to the Northern Ireland Assembly or Departments, so that any impact on the allocation of resources in Northern Ireland would be a matter for their annual budget and not a ground for insisting on additional funding from central government. This approach is fully in accord with the evolving structures for devolution throughout the United Kingdom and makes it clear to the political parties here that support for the inclusion of rights of this kind would involve some limitation on their own discretionary powers over the allocation of available resources.
(b) Disadvantaged and vulnerable groups
The major issue that remains to be resolved in this area is whether detailed provisions should be included in the Bill on each main disadvantaged or vulnerable group or whether an attempt should be made to achieve similar protections by ‘mainstreaming’ rights for all. It is clearly unsatisfactory and invidious to include detailed provisions for some but not all groups of this kind and the responses to the consultation document from a number of representative bodies have argued strongly for the inclusion of detailed and specific protections for those whom they represent. On the other hand it can be argued that detailed protections of this kind are better dealt with by specific legislation and that the proper role for a Bill of Rights is to guarantee effective equality of provision for all. The Commission has not completed its consultations on how this issue should be dealt with and looks forward to further discussions with the political parties and more generally.
 

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The Commission’s objectives
The Commission’s major objectives in publishing this progress report for further discussion with the political parties and others can be summarised as follows:
• There is a need to position the proposed Bill of Rights within the established and emerging structures and systems for human rights protection in the United Kingdom, the island of Ireland, the European Union and the United Nations.
• There is a need to ensure that the Bill provides an appropriate balance between the protection of communal rights and the protection of individual rights. The one does not necessarily preclude the other.
• There is a need to find an acceptable way of recognising the particular rights and interests of both main communities and also those of other minorities.
• There is a need in the interests of future peace and stability to recognise the right of individuals not to be treated as members of any communal group against their will, without undermining the equality and fair participation provisions of existing legislation or of the Agreement.
• There is a need to find an acceptable way of recognising and enforcing socio-economic rights and the rights of vulnerable and disadvantaged groups within those structures.
• There is a need to ensure that the Bill of Rights does not become too detailed a document.
The approach to each of these issues which the Commission currently favours is set out in the pages which follow, in an order which for the most part adopts that used in the Commission’s initial consultation document published in 2001. To make this paper concise and readable, it generally does not restate the 2001 proposals under each heading or give a detailed account of why each change has been made. As mentioned above, the 2004 proposals are consolidated in Appendix 1 and the 2001 proposals are set out in Appendix 2.
Equality impact assessment
In line with its obligations under section 75 of the Northern Ireland Act 1998, and with its commitments in its Equality Scheme, the Commission will be conducting an equality impact assessment of the proposals contained in this report.
 

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Progressing a Bill of Rights for Northern Ireland: An Update
THE PREAMBLE TO THE BILL OF RIGHTS
In Making a Bill of Rights for Northern Ireland (2001) the Human Rights Commission expressed the “firm view” that the Bill of Rights for Northern Ireland should be introduced by a Preamble. Having carefully considered responses to that proposal, and having further debated the matter amongst themselves, Commissioners have preferred to maintain that view, but they also wish to strengthen and give greater prominence to the interpretation section in the Bill of Rights. Including a Preamble would be customary if the Bill of Rights were to be adopted by an international treaty. If, on the other hand, the Bill of Rights were to be adopted in the form of an Act of the Westminster Parliament (which is all that the Belfast (Good Friday) Agreement actually suggests), a Preamble would not be customary. In this latter case it would be particularly important that the inspirational tone of a Preamble is reflected as much as possible in a strong interpretation clause.
The Commission continues to believe that a Bill of Rights for Northern Ireland should be adopted not only by an Act of Parliament at Westminster but also, as with the Belfast (Good Friday) Agreement, by an international treaty between the United Kingdom and the Republic of Ireland. A treaty could ensure, for example, that the Bill of Rights will continue to apply even if Northern Ireland were to become part of the Republic of Ireland. (Lest there be any doubt, the Commission holds no views on what the future constitutional status of Northern Ireland should in fact be, except that it may only be decided in a manner that respects the human right to self-determination of peoples.)
In the law of the United Kingdom, Irish law and international law, Preambles to legal texts do not have the full force of law. They are merely meant to “guide” judges, and others, who have to apply the legal text in question – they do not dictate how the contents of the document are to be applied. A Preamble is usually couched in more inspirational terms than an interpretation section, thereby helping to embed the purpose and spirit of the document (rather than its precise content) in people’s consciousness. An interpretation section, on the other hand, whether in the law of the United Kingdom, Irish law or international law, does require the rest of the document to be applied in a certain way.
The Commission prefers to have both a Preamble and a strong interpretation clause so that whatever way the Bill is embedded into law it will achieve the purposes underlying it. It has been particularly influenced by two examples of existing clauses, in the South African Bill of Rights and in the United Kingdom’s Human Rights Act. It has also looked at Preambles in international treaties on human rights.
The Human Rights Commission now believes that the Preamble to a Bill of Rights for Northern Ireland should read as set out below. This version is shorter than that set out in the consultation document of 2001, but it is intended to capture the same ideas and to be just as influential on persons interpreting and applying the Bill.
 

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Progressing a Bill of Rights for Northern Ireland: An Update
Preamble
This Bill of Rights is based on the following principles:
(a) that everyone is entitled to live free from violence, fear, oppression and intimidation, with differences on political issues to be resolved through exclusively democratic means without the use or threat of force,
(b) that the tragedies of the past have left a legacy of suffering in Northern Ireland 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 tolerance, reconciliation and mutual respect,
(c) that the inherent dignity and the equal and inalienable rights of all members of the human family are the foundation of freedom, justice and peace in the world,
(d) that poverty and social exclusion represent a fundamental denial of dignity and human rights,
(e) that each individual, having duties to other individuals and to society, is under a responsibility to strive for the protection and vindication of the human rights of all.
Paragraph (a) is intended to say something fundamental about the type of society that we want, and the duties that lie on government and on each of us to secure and maintain such a society.
Paragraph (b) is closely based on paragraph 2 of the “Declaration of Support” at the beginning of the Belfast (Good Friday) Agreement 1998. Whether one is a supporter of that Agreement or not, the Commission believes that the sentiments expressed in the paragraph should command almost universal support in Northern Ireland.
The wording of paragraphs (c) and (e) is based on the Preambles to the UN’s Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966), with (e) borrowing some additional wording from the “Declaration of Support”.
Paragraph (d) represents the view of the UN’s Commission on Human Rights and of the UN High Commissioner on Human Rights and is very much the view of all members of the Northern Ireland Human Rights Commission.
The Commission has dropped its original proposal to refer to “The People of Northern Ireland… requesting this Bill of Rights” because it is not yet clear how the Bill of Rights is to be officially adopted. Most of the Commissioners would prefer the Bill of Rights to be adopted as an international treaty, approved by a referendum of all the people of
 

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Progressing a Bill of Rights for Northern Ireland: An Update
Northern Ireland and enacted through an Act of the Westminster Parliament after a resolution passed by a cross-community vote in the Northern Ireland Assembly, but there is not unanimity on this. The Commission agrees, however, that the adoption process should not form the subject matter of the Bill itself, even of its Preamble. It believes that an express affirmation of the foundational principles on which the Bill of Rights is based should suffice in this context, regardless of the manner in which the Bill is eventually adopted. The Commission would welcome further views on this point.
It may also be that the suggested wording of the Preamble is not “inspirational” enough. The Commission will be considering ways in which it can be made so without the Preamble losing its legal significance.

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Progressing a Bill of Rights for Northern Ireland: An Update
 

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Progressing a Bill of Rights for Northern Ireland: An Update
SECTION 1
INTERPRETATION
The Commission’s draft Bill of Rights, as set out in Making a Bill of Rights for Northern Ireland, provided for the interpretation of children’s rights and of social and economic rights, as well as for the more general interpretation of the Bill of Rights. In the light of its further deliberations, the Commission now wishes to merge some of those provisions into one interpretation section and to add other features to it.
This new section should be placed at the start of the Bill of Rights, directly after the Preamble (to which it refers in sub-section (1)(b)). Locating it here will help to set the tone for the whole document. A suggested wording of this interpretation section is the following:
Section 1 Interpretation
(1) Without prejudice to any more specific provisions on interpretation contained in this Bill of Rights, a court, tribunal or other body, when interpreting the Bill of Rights for Northern Ireland, must:
(a) promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
(b) have due regard to the content of the Belfast Agreement of 10 April 1998, to the Preamble to this Bill of Rights and to the intention of this Bill of Rights as set out in sub-section (2); and
(c) have due regard to international law and practice and to the law and practice of other countries.
(2) This Bill of Rights is intended to reflect the particular circumstances of Northern Ireland, to guarantee the rights of both main communities and all other communities in Northern Ireland, to promote mutual tolerance and respect among all communities and to ensure the effective delivery of rights to all people in Northern Ireland, including those who have suffered during the conflict and those who are most disadvantaged and marginalised.
(3) A court, tribunal or other body, when interpreting any legislation or when developing the common law, must, so far as it is possible to do so, read and give effect to the legislation or common law in a way which is compatible with the rights contained in this Bill of Rights.
 

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(4) This Bill of Rights does not limit the application of any other rights or freedoms which are recognised or conferred by legislation or the common law, to the extent that they are not inconsistent with the Bill.
This whole section is based largely on the interpretation section in the South African Bill of Rights (its section 39).
“International law” in section 1(1)(c) is intended to refer to the international human rights treaties drawn up by inter-governmental bodies such as the United Nations, the Council of Europe and the European Union. “International practice” is intended to refer to those other documents issued by such bodies (in the form of “Basic Principles”, “Codes of Conduct” and “Declarations”, etc) which give guidance as to what best practice should be on certain human rights matters. These latter documents are sometimes said to contain “soft law” standards as opposed to the “hard law” standards laid down by binding treaties.
Section 1(2) borrows significantly, at least in its first four lines, from language used in the Belfast (Good Friday) Agreement. The last two lines reflect the wish of the Human Rights Commission that the Bill of Rights should in particular have meaningful consequences for people who have suffered during the troubles, or conflict, in Northern Ireland as well as for those who, for whatever reason, feel that they are not treated as full and equal members of society.
Section 1(3) is largely based on section 3 of the United Kingdom’s Human Rights Act 1998, which requires primary and subordinate legislation to be interpreted, so far as it is possible to do so, in a way which is compatible with the Convention rights. It goes further in that it requires the common law (i.e. the law made through the precedents set by judges) to be interpreted in the same way. This is in line with the corresponding interpretation section in the Republic of Ireland’s European Convention on Human Rights Act 2003 (section 2(1)). Such an approach will help to ensure that the whole of the law in Northern Ireland will be rendered consistent with the Bill of Rights. It will mean, moreover, that the Bill of Rights will affect all relationships in Northern Ireland – those between individuals or between individuals and private organisations, as well as those between individuals or private organisations on the one hand and state bodies on the other. Section 18(2) – see page 83 below – is relevant here too, since it makes it clear that the Bill of Rights will, where appropriate, be binding on non-state entities.
Section 1(4) is comparable to such clauses in many other Bills of Rights in the world and to Article 53 of the European Convention on Human Rights. It ensures that existing rights are not affected by the enactment of the Bill, provided they are not inconsistent with the Bill. The ordinary law of Northern Ireland already protects many rights and freedoms and these must not be in any way diminished just because they were not expressly repeated in the Bill of Rights.
It is difficult to give examples here of how this interpretation section might work in practice, because so much will depend on the circumstances of each particular case. But

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the overall effect of the section should be to produce decisions which are well grounded in agreed principles and values.
 

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SECTION 2
DEMOCRATIC RIGHTS
In Making a Bill of Rights for Northern Ireland (2001) the Human Rights Commission proposed that provisions on democratic rights should be included in the Bill of Rights. As a result of considering the submissions made on these proposals the Commission identified the following issues as particularly worthy of greater consideration:
• Should a right to inclusive and equitable governance be included?
• Should a right to participation in government – whether of elected officials or of all persons – be guaranteed?
• Should the Bill of Rights provide for voting systems based on the principle of proportional representation?
• Should the issue of elected persons who may have links to terrorism be dealt with here?
• Should democratic rights apply to asylum-seekers and refugees?
Having reflected on and discussed these questions, and bearing in mind its decision not to include in this version of the proposed Bill of Rights sections based directly on the text of European Convention rights (see Section 20 at page 87 below), the Commission wishes to put forward the following provisions for further debate.
Section 2 Democratic rights
(1) Elections in Northern Ireland to the European Parliament, the Westminster Parliament, the Northern Ireland Assembly and local government shall be by systems which ensure proportional representation, in a manner to be determined by legislation.
(2) Elected representatives shall be entitled to equitable and inclusive participation in the governance of Northern Ireland in a manner to be determined by legislation. Only representatives who are committed to democratic and peaceful means of resolving differences on political issues shall be entitled to exercise ministerial or executive authority.
(3) The State shall take all appropriate measures to promote the right of under-represented sectors of society, in particular women, to fair, full and equal participation in public life, including participation in decision-making processes.
(4) All persons of legal voting age shall have the right to vote in elections to local and regional government bodies and in referendums at local and regional level, provided that they satisfy the requirements of legislation as to residence or other local connection. All persons who are entitled to
 

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vote are also entitled to present themselves as candidates for election and to nominate, second or support candidates.
(5) The membership of public bodies based in Northern Ireland shall be broadly reflective of the make-up of society in Northern Ireland.
As regards section 2(1), the Commission has deliberated long and hard over the wisdom of entrenching a certain variety of voting system in the Bill of Rights. In the end it considered that the fact that Northern Ireland is still a society which is sharply divided along political lines, and likely to remain so for some time, is a justification for insisting that proportional representation should be used at elections. One Commissioner, however, dissents from this view and would prefer that the Bill did not deal with voting systems at all. The other Commissioners are agreed that the Bill of Rights should not specify what kind of PR system should be employed – that is a matter best left to Parliament to decide through specific legislation.
The objective of section 2(2) is to clarify and render enforceable the underlying principles of the Agreement, namely inclusive participation in the governance of Northern Ireland linked to an effective guarantee that all those exercising the powers of government are committed to the principles of democracy and have no direct or indirect association with unlawful paramilitary activity. The inclusion of these principles in the Bill of Rights would help to ensure that an objective judicial decision can be made on their continuing implementation and thus help remove the concern that they will be subordinated to political expediency. (A similar approach was adopted in South Africa, where the Constitutional Court was given the power to verify that the provisions of the final Constitution, including a Bill of Rights, were fully in accord with the principles set out in the interim Constitution.) The Commission is not in favour of conferring rights to participation in governance on groups or individuals other than elected representatives. It believes that a PR voting system, and extensive rights to vote and stand at elections, adequately guarantee rights to participation in the democratic system.
The Commission has also rejected the idea that the Bill of Rights should contain a provision similar to Article 15.6.2° of the Republic of Ireland’s Constitution, which prohibits non-state armies. It believes that the provisions of the proposed section 2(2), and the ordinary criminal laws and anti-terrorism laws, are sufficient in this context, although naturally all Commissioners are opposed to the maintenance of any “private” armies.
As indicated above the Commission is proposing that the Preamble to the Bill of Rights should make it clear that differences on political issues are to be resolved through exclusively democratic and peaceful means without the use or threat of force (see paragraph (a) of the proposed Preamble on page 18 above).
Section 2(3) is intended to protect not only women’s right to participation in public life (one of the points of agreement between the political parties in the Belfast (Good Friday)
 

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Agreement), but also the rights of other under-represented sectors of society in this respect. These sectors have been left unspecified because they could change over time. At present they would include the black and minority ethnic sector, the sector comprising people who have disabilities and the sector comprising children and young people.
In section 2(4) a reference to lowering the voting age has been omitted and the clause instead refers to “all persons” of legal voting age. The Commission considered that changing the voting age would be better achieved through ordinary legislation, and we note that both the British Labour Party and the British Liberal Democrat Party have recently made proposals in that regard. The majority of responses to the Commission’s 2001 proposals agreed with this approach. The Commission believes that the detail as to who exactly should qualify for voting rights is best left to be specified in legislation, but that the legislation in question should disqualify people only if they do not have an appropriate connection with the constituency in question. People should not be denied the right to vote merely because, for example, they have a criminal record or a learning disability. Section 2(4) would also sweep away the large number of disqualification provisions preventing people holding particular offices from standing for election to Parliament or the Assembly. The Commission shares the view of an Ad Hoc Committee of the last Assembly that individuals should not be discouraged from reasonable participation in electoral politics.
Section 2(5), which has no parallel in the Commission’s 2001 proposals, has been deemed necessary by the Commission because it believes that the people of Northern Ireland need to be reassured that no part of the extensive unelected “quango” sector here is likely to be politically biased. The Commission prefers the term “reflective of” rather than “representative of” the make-up of society, since “representative” suggests a more systematic selection process than might in practice be possible. Moreover persons appointed to public bodies are not asked to serve there in order to represent particular constituencies but rather because they can reflect the views of people who share their background.
 

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SECTION 3
IDENTITY AND COMMUNITY RIGHTS
The Commission’s 2001 proposals
In its consultation paper of 2001 the Commission tried to ensure that the draft Bill of Rights not only reinforced the prominence given in the Belfast (Good Friday) Agreement to the position of “the two communities” in Northern Ireland but also recognised and protected the rights of all communities in Northern Ireland. Believing, however, that it would be very difficult to protect effectively the right of any community to “parity of esteem” or “mutual respect”, two key phrases in the Agreement, the Commission instead sought to set out the specific rights which in its view underlie those concepts. As an alternative, it suggested a clause which specifically mentioned those concepts but which did not define them.
Issues arising from these proposals
Three aspects of the Commission’s proposals in this area proved to be particularly controversial. One was the Commission’s preference for the word “communities” over the word “minorities”. Representatives of various smaller black and minority ethnic sectors pointed out that omitting the word minority could undermine the protection they were entitled to under international documents on minorities which the United Kingdom has agreed to abide by, such as the Framework Convention for the Protection of National Minorities. Some respondents also claimed that the Catholic and/or nationalist and/or republican section of the population would prefer to be protected as a “minority” instead of, or perhaps as well as, a “community”. Most of these critics seemed to disagree with the advice the Commission received from the international organisation it had consulted on this subject, the Office of the High Commissioner for National Minorities within the Organisation for Security and Co-operation in Europe.
The second controversial aspect of the Commission’s original proposals was the fact that the draft clauses were worded in a way which seemed to give rights to individuals as members of communities rather than give rights to the communities themselves. This sparked a number of letters and articles in newspapers and magazines over the respective merits and demerits of an “individualistic” approach to rights as opposed to a “group rights” approach.
The third controversy focused on the Commission’s proposal that individuals should have the right to choose not to be treated as a member of a community if they did not wish to be so treated. Some commentators felt that this could endanger the existing laws requiring employers to monitor the community background of their employees and of applicants for jobs. They argued that the current laws on discrimination and on ensuring fair participation in the workforce could thereby be undermined. The suggestion was also made that this proposal could jeopardise the arrangements for cross-community voting in
 

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the Northern Ireland Assembly, or even the 50:50 recruitment arrangements for the Police Service of Northern Ireland.
The Commission’s latest thinking
In its further deliberations on this category of rights the Commission paid particular attention to the worries expressed on the three points mentioned above. To better inform their discussions the Commissioners, through the Northern Ireland Office, invited the assistance of experts from the Council of Europe, who visited Northern Ireland towards the end of October 2003. A report from those experts has just been delivered to the Commission; it has been taken into account for this progress report and is available from the Commission on request. The Commission also held further meetings, and conducted correspondence, with people who had expressed doubts about the Commission’s initial proposals.
As a result of its further deliberations the Commission now wishes to put forward the following provisions as section 3 of the proposed Bill of Rights:
Section 3 Identity and community rights
(1) Persons born in Northern Ireland have the right to identify themselves, and be accepted, in accordance with Article 1(vi) of the Agreement between the Governments of the United Kingdom and Ireland of 10 April 1998, as Irish or British, or both, as they may so choose.
(2) The law of Northern Ireland shall ensure just and equal treatment for the identities, ethos and aspirations of both main communities.
(3) Everyone belonging to a national, ethnic, religious, linguistic or cultural minority or community in Northern Ireland shall have the right, individually and 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.
(4) The law of Northern Ireland shall guarantee the rights conferred on minorities, and on individual members of minorities, by the Framework Convention for the Protection of National Minorities.
(5) Everyone in Northern Ireland has the right to express their culture except when such expression:
(a) promotes hatred, fear or intolerance,
(b) constitutes a threat or act of violence, intimidation, harassment or discrimination, or
 

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(c) is contrary to internationally accepted human rights standards.
(6) Everyone has the right to be nomadic or sedentary and the right to change from one mode of living to the other.
[(7) The Government and public bodies shall, without prejudice to section 4(5) of this Bill [the positive action provision], adopt effective and appropriate measures to:
(a) promote equality in all areas of social, economic, cultural and political life among and between persons belonging to national, ethnic, religious, linguistic or cultural communities;
(b) preserve the essential elements of the identity of such persons, namely their nationality, traditions, religion, language and cultural heritage;
(c) promote mutual tolerance, respect, understanding and co-operation among all persons living in Northern Ireland, irrespective of their national, ethnic, religious, linguistic or cultural identity, in particular in the fields of education and the media; and
(d) protect persons who are or may be subject to threats or acts of discrimination, hostility or violence as a result of their national, ethnic, religious, linguistic or cultural identity.]
Section 3(1) reflects what is already provided for in the law of Northern Ireland, in the law of the Republic of Ireland and in the Belfast (Good Friday) Agreement. Persons born in Northern Ireland will be able to choose to be British citizens only if they otherwise satisfy the requirements of British nationality law, as provided for in the note at the end of the British-Irish Agreement which was agreed on the same day as the Belfast (Good Friday) Agreement. In that note the two Governments state that it is their joint understanding that in this context the term “the people of Northern Ireland” means those persons born there who, at the time of their birth, have at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence. It should be noted that the rule is different in the Republic of Ireland, where the first sentence of Article 2 of the Constitution (amended in 1999 to take account of the Belfast (Good Friday) Agreement of 1998) says that “It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation”. The Irish Nationality and Citizenship Act 2001 further elaborates upon who qualifies for Irish nationality and there is a government proposal to amend the Irish Constitution in a way which would limit the nationality rights of some persons born in Ireland.
Section 3(2), instead of using the phrase “parity of esteem”, refers instead to “just and equal treatment for the identities, ethos and aspirations of both main communities”. The
 

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Commission thinks that this is what is meant by the term “parity of esteem”. Apart from the word “main” and the plural form “identities”, the longer phrase is the one used in Article 1(v) of the Agreement between the United Kingdom and Irish Governments which was reached on the same day as the Belfast (Good Friday) Agreement. The Commission believes that the longer phrase more fully reflects the nature of the rights belonging to the two communities which the words “parity of esteem” are meant to convey and it has added the word “main” because it wishes to acknowledge that there are more than just two communities in Northern Ireland. Commissioners are content to leave the meaning of “identities, ethos and aspirations” to be developed through case-law if necessary. The Commission would welcome further views on whether the words “parity of esteem” still ought to be included in the Bill of Rights. It would also welcome views on whether the phrase means something other than “just and equal treatment for the identities, ethos and aspirations of both main communities” and, if so, what.
Section 3(3) guarantees rights to “all” the described minorities and communities, including of course “both” communities referred to in the Belfast (Good Friday) Agreement. The Commission wishes the Bill of Rights to protect all communities in Northern Ireland, not just the two main communities. The use of the terms “national” and “cultural” minority or community means that, in the Commission’s view at least, both unionism and nationalism will be protected even if they are not already deemed to be protected by the terms “ethnic” or “religious” minority or community. The terms “minority” and “community” have both been included in order to avoid any doubt that Catholics / nationalists / republicans or Protestants / unionists / loyalists would enjoy the rights in question. To the extent that there might be an overlap between sections 3(2) and 3(3) this is of no consequence, since they are in no respect contradictory.
Section 3(4) guarantees rights to all the described minorities in Northern Ireland, as already required by international law because of the United Kingdom’s ratification of the Framework Convention for the Protection of National Minorities. Including the rights in the Bill will make them enforceable through the local courts, which is not presently the case. There is in this instance a clear overlap between sections 3(3) and 3(4), because most if not all of the specific rights mentioned in section 3(3) are also mentioned in the Framework Convention. There is, however, no problem in the fact that section 3(3) may in some respects go beyond section 3(4), since nothing in the Framework Convention prevents states from conferring rights on groups, or on members of groups, supplementary to those rights listed in that Convention.
Sections 3(3) and 3(4) each reflect Article 3(2) of the Framework Convention for the Protection of National Minorities in that they both acknowledge that persons should be able to exercise their “community” or “minority” rights and freedoms individually as well as in community with others. The proposed Bill of Rights will therefore protect the identity rights of members of communities and minorities as well as the identity rights of the communities and minorities themselves. The Commission considers that groups should be entitled to seek enforcement of their rights and this is provided for in sections 18(3) and (4) of the Bill of Rights (see page 83 below).
 

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Section 3(5) is intended to ensure that people have the right to use (for example) flags, emblems, symbols and parades when they are expressing their culture. The Commission has been urged to include some provision on this matter because it is clearly a particular circumstance of Northern Ireland. The Commission is of course generally in favour of people being free to express themselves in this way but it believes that such a freedom should not be exercisable in a way which (for example) promotes hatred, fear or intolerance. That is why a number of limitations have been expressly imposed on the exercise of the right in this section, the exact scope of which will have to be determined by the courts in due course. The Commission believes that the limitations are justifiable in the particular circumstances of Northern Ireland and that they are within the limitations allowed on the rights to freedom of expression and freedom of assembly which are otherwise protected by Articles 10 and 11 of the European Convention on Human Rights. It notes, however, that the Council of Europe’s experts are more sceptical in this regard. Further views on this proposed sub-section are, therefore, particularly welcome.
Section 3(6) has been included primarily because the Commission considers that the cultural right of Travellers to be nomadic is best protected in this fashion rather than by the phrase “right to a nomadic lifestyle”. The Commission also wishes to assert the right to be sedentary in order to provide protection for Travellers who opt to cease to be nomadic.
Section 3(7) is an optional additional provision. The Commission is still considering whether to recommend its inclusion or not and would welcome further views on it. On the one hand the provision may not be necessary, given what is already provided in sections 3(4) and 3(5). On the other hand, the provision makes it explicit that rights are meaningful only if the State takes measures to allow them to be effectively exercised. The Commission is particularly conscious of the need at this time to protect members of minority racial and religious groups against manifestations of racism and sectarianism. Section 3(7)(d) is borrowed directly from Article 6(2) of the Framework Convention for the Protection of National Minorities, which reads:
The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.
However this may be deemed to be unnecessary in light of the proposed section 3(4) above.
The Commission has omitted from section 3 any reference to a person’s right not to be treated as a member of a minority if he or she does not wish to be. It remains of the view that such a right should be protected. As it is enshrined in Article 3(1) of the Framework Convention for the Protection of National Minorities, the whole of which is to be applied in Northern Ireland by virtue of section 3(4) of the proposed Bill of Rights, there is no need for it to be given a separate mention in the Bill.
 

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The Commission understands that incorporation of Article 3(1) of the Framework Convention will not mean that the current requirements on employers in Northern Ireland to monitor the community background of their workforce, or of applicants for their workforce, will become unlawful. It will simply mean that employees and applicants, when being monitored, will be able to insist that their chosen community affiliation will be recorded, as well as any perceived community background. Under the existing Monitoring Regulations employees and applicants cannot be absolutely sure that the reality of their current community background is accurately recorded by the employer.
 

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Progressing a Bill of Rights for Northern Ireland: An Update
SECTION 4
THE RIGHT TO EQUALITY AND NON-DISCRIMINATION
The main issues which were raised as a result of the Commissioners’ deliberations on the submissions made on its 2001 proposals in this area were as follows:
• The commentary to this section of the Bill of Rights should more accurately address how the Bill of Rights will relate to further proposed equality legislation in Northern Ireland (in particular the proposed Single Equality Act) and European Union law.
• Should there be additional provisions protecting the rights of members of specific sectors of society, such as children, older persons, women, persons with disabilities and persons from the black and minority ethnic communities?
• Should the sub-section dealing with exceptions in this area be more tightly drawn and how should its relationship with a general limitations section in the Bill of Rights be explained?
• Should the sub-section dealing with positive action impose a duty on the State but leave it as a power for other bodies?
• Where should a sub-section dealing with harassment be located and how should it address the issues of incitement of hatred, intimidation and sectarianism?
The Single Equality Act and EU legislation
As regards the first of the above points, the Commission is acutely aware that the Office of the First Minister and Deputy First Minister is in the process of developing a Single Equality Act for Northern Ireland, which will bring together into one statute most if not all of the provisions dealing with equality and add to them. The passing of such a law has been delayed because of the suspension of the Northern Ireland Assembly, but if suspension looks like continuing indefinitely the law might well be introduced in the form of an Order in Council at Westminster.
The Commission is aware too that the European Union is particularly active in the field of equality: EU Directives usually have to be implemented in each member state within three years of having been agreed. For example, in December 2003 new laws dealing with discrimination based on sexual orientation and deriving from an EU Directive in 2000 came into force. As a result of that Directive there are further changes pending regarding discrimination based on disability and age. There is a further draft EU Directive on the equal treatment of men and women.
The Bill of Rights must not contradict these local and European developments. The Human Rights Commission considers that the Bill of Rights should provide the overall framework for the protection of equality and that more specific legislation should then provide the detailed protections required in particular situations. The intention of the Commission in this context is therefore to guarantee and build upon existing equality
 

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provisions in Northern Ireland law, and in the Belfast (Good Friday) Agreement, and to do so in general tones and in a way which is workable and understandable.
The rights of members of disadvantaged sectors of society
One of the major issues on which the Commission has yet to reach a conclusion is how best to provide protection for particular disadvantaged or vulnerable groups. In any Bill of Rights there is a choice to be made between providing equal protections for everyone on the same basis – known as ‘mainstreaming’ – or including more specific protections for particular groups. These groups could include women, children, older people, people with disabilities or people with mental health difficulties, and some other groups whose members face particular problems or risks.
The Commission’s 2001 consultation document was widely criticised on the ground that it failed to recommend a balanced or coherent approach on this issue. It included a lengthy section on specific rights for children, proposed mainstreaming for women with only a few specific protections and largely ignored the specific rights of people with disabilities.
International standards
International standards in this respect are equally disparate. The main international conventions and the European Convention on Human Rights generally provide the same rights for all. Particular groups are mentioned only to prohibit any form of discrimination against their members, with only a few more specific protections being granted. The specific international conventions on the rights of women and racial groups also concentrate on the prohibition of any form of discrimination. But there are a number of European Union Directives that go a good deal further in the protection of women and the new European Union Charter of Fundamental Rights adopts a similar approach. The UN’s Convention on the Rights of the Child, however, provides a lengthy list of specific rights for children and there is a current proposal for the adoption of a specific convention for the rights of people with disabilities.
The choice for a Northern Ireland Bill of Rights
The Commission is currently considering three possible approaches for the Northern Ireland Bill of Rights:
(a) Mainstreaming all rights
This would entail recognising that the word “everyone” in the various sections of the Bill includes every member of every disadvantaged sector. For some, perhaps people with disabilities, this would in itself be a step forward, since up to now they may have felt unrecognised even as full human beings. But the drawback with this approach is that the very specific rights which some disadvantaged groups are claiming (e.g. the right of people with disabilities to have access to
 

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public transport) would not be contained in the Bill because it does not confer any corresponding right on “everyone”.
(b) Mainstreaming most rights but adding a few specific rights
This approach would mean adopting the previous position but inserting in appropriate sections some specific rights which would otherwise be excluded. For example, people with disabilities could be guaranteed the specific right to have access to public transport, women could be guaranteed the specific right to participate in political decision-making, older people could be guaranteed the specific right to free nursing care, etc.
(c) Inserting specific rights for a number of specific groups
Protecting rights in this way would require wholly separate sections in the Bill of Rights dealing with the full range of rights which members of different disadvantaged groups should be entitled to. There would be fairly lengthy sections in the Bill of Rights covering the specific rights of children, older people, people with disabilities, etc.
The Commission wishes to arrange further more detailed discussion of these possible approaches with those who are most directly affected and plans to hold one or more seminars or roundtables on the matter in coming months. In this progress report it has generally adopted position (b) above: while mainstreaming the bulk of rights it has retained a separate, though reduced, section for children’s rights (see Section 12 at page 61 below) and has included in other sections some specific rights for women, for people with disabilities and for Travellers. The Commission will be consulting further on this matter and remains open to different approaches in the light of further discussion and debate.
The Commission’s new proposals
After considerable discussion of these and other related points, Commissioners decided to make a number of changes to the 2001 draft provisions. The new proposals are set out below, followed by a commentary which explains the rationale behind each provision.
Section 4 Equality and non-discrimination
(1) Everyone is equal before and under the law and has the right to equal protection and equal benefit of the law. Equality includes full and equal access to and enjoyment of all rights and freedoms set forth by law.
(2) 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.
 

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(3) Everyone has the right to be protected against any direct or indirect discrimination whatsoever on any ground (or combination of grounds) such as sex, marital or family status, sexual orientation, genetic features, race or ethnic origin, nationality, colour, language, religion or belief, political or other opinion, disability, possession of a criminal conviction, national or social origin, association with a national minority, property, birth, parentage, age, residence, status as a victim or any other status.
(4) A difference of treatment which is based on a characteristic related to any of the grounds referred to in sub-section (3) above shall not constitute discrimination where, by reason of the nature of the particular activities concerned, or of the context in which they are carried out, such a characteristic constitutes a genuine and determining requirement, provided that the objective is legitimate and the requirement is proportionate.
(5) All public bodies are under a duty to have due regard to the need for laws, policies, programmes and activities aimed at achieving and sustaining full and effective equality, in particular by reducing inequalities affecting groups disadvantaged on the grounds specified in sub-section (3) above, or on socio-economic grounds. Such laws, policies, programmes and activities may include specific measures for individuals from such groups and shall not constitute discrimination.
Section 4 does not replicate the whole of Article 14 of the European Convention on Human Rights because the Commission now prefers to include the existing Convention rights in a separate section of the Bill of Rights (see Section 20 at page 87 below).
In section 4(1) the words “set forth by law” at the end ensure that only those rights and freedoms already recognised by law are to be equally accessible and enjoyed. The sub-section would otherwise be too open-ended. The phrase is the same as that used in Protocol 12 to the European Convention on Human Rights, which extends protection against discrimination to rights other than those listed in the Convention itself. Neither the United Kingdom nor Ireland has yet ratified this Protocol
Section 4(2) reflects the Commission’s belief that the history of a denial of human rights to women and girls is such that special mention of them in this section of the Bill is justified. By imposing a duty on the State to take all necessary measures to promote the equal enjoyment of all human rights and fundamental freedoms by women and girls the Bill is going further than merely ensuring that women and girls have the same rights as men and boys. A positive action provision like this should ensure that in practice the Bill of Rights makes a real difference to the way in which women and girls experience their rights. It does not mean that they will have more rights than men and boys, merely that they will have an equal chance of relying upon their rights. Including specific rights for women and girls in this way is consistent with the on-going measures being taken by the
 

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European Union, both in its draft Directives on (for example) Equal Treatment and in its draft Charter of Fundamental Rights. The latter provides in Article 23:
Equality between men and women must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.
Section 4(3) has been reworded slightly to reflect the Commission’s decision to include all the grounds of unlawful discrimination already listed in Article 14 of the European Convention on Human Rights. The grounds which were inadvertently omitted from the 2001 document were “association with a national minority” and “property”. Contrary to the position it is adopting for other Convention rights (see Section 20 at page 87 below) the Commission considers that it would be inappropriate to include in this section only additional grounds for non-discrimination, because the section would then appear manifestly incomplete on its face. The additional grounds have been inserted in a way which preserves the order used in Article 14. They are marital or family status, sexual orientation, genetic features, ethnic origin, nationality, belief, disability, possession of a criminal conviction, parentage, age, residence and status as a victim. By including the phrase “or combination of grounds”, the Commission has recognised the fact that people can often suffer in special ways if they are the victim of discrimination on more than one ground simultaneously. This is also an acknowledgement of the fact that everyone has multiple identities.
Section 4(4) deals with justifiable differences in treatment that are not to be defined as discrimination. Submissions made to the Commission on the 2001 proposal suggested that what was then termed the exceptions clause was not tightly enough drawn and that an “objective justification” clause would make it harder to prove that indirect discrimination was legal. The intent behind the sub-section is to allow different treatment that might otherwise amount to discrimination to occur only when it takes place for a good reason, e.g. if a women’s nursing home advertises for a woman to perform intimate nursing care for its residents.
Section 4(5) represents the Commissioners’ compromise between what was previously presented as a stark choice between imposing a duty to reduce inequalities and conferring a power to do so. It is modeled to an extent on section 75 of the Northern Ireland Act 1998, which refers to a duty on public bodies to have “due regard” to something. If a duty were imposed in this context, the Northern Ireland Housing Executive, to take but one example, would be required to reduce socio-economic inequalities in the field of housing resulting from the fact that people living in Housing Executive accommodation have different income levels: if particular tenants could not afford to pay rent at a certain level their rent would need to be reduced or other steps would need to be taken to assist them to pay it. On the other hand, if a mere power were conferred in such a situation, the Housing Executive could take measures if it so wished but would not be obliged to do so. The same alternative ways of bringing about change present themselves when 39
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consideration is being given as to how best to promote and protect social, economic and environmental rights (see Section 15 at page 71 below).
At present, under section 75 of the Northern Ireland Act 1998, public bodies are under a duty to have due regard to the need to promote equality of opportunity between nine different sectors of society, but not equality of result (which is what “full and effective equality” in the Commission’s clause means). Under section 75, moreover, public bodies can adopt policies which have an adverse impact on one or more of the stipulated sectors of society so long as they can demonstrate justifiable reasons for doing so. The Commission’s proposed new sub-section, by imposing a duty to have due regard to the need for measures to reduce inequalities, goes further than the existing law as set out in section 75 without giving to judges rather than to elected politicians the power to decide the appropriate allocation of resources among different sectors of society.
The Commission intends section 4(5) to operate in much the same way as the provisions in South Africa’s Bill of Rights (e.g. sections 25(5), 26(2) and 27(2)) which impose duties on the State to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of particular rights. These have been interpreted by the Constitutional Court of South Africa as provisions which allow the judges to assess what is “reasonable” but which leave to the elected politicians the power to decide exactly what kinds of measures should be taken within the constraints of reasonableness. In the case of Grootboom, for example, the Constitutional Court of South Africa ruled that the Government of the Western Cape province had not put in place a reasonable policy for housing people living in shacks; it gave the Government a set period in which to come up with a better policy. Similarly, in a case concerning the availability of retroviral drugs for the treatment of HIV/AIDS, the Constitutional Court ruled that the federal Government’s policy of restricting the drugs to certain clinics was not reasonable and ordered a new policy to be adopted.
In short, the wording of section 4(5) is a compromise between imposing a duty on public bodies to achieve equality and conferring a power on them to do so. It imposes a duty on them to have due regard to the need for measures aimed at achieving equality.
The Commission has not included clauses defining direct and indirect discrimination. This is for two reasons: first, direct and indirect discrimination are already mentioned in the general non-discrimination provision (section 4(3)) and, second, any definition of these terms in the Bill of Rights might inappropriately limit their interpretation in the future. It is important that the Bill of Rights remains a flexible document that can move with the times. The forthcoming Single Equality Act will provide a further opportunity to debate exactly what meaning to give to these terms in legislation and the Commission thinks that is a better location for such definitions.
The Commission has also decided to omit from this section any reference to harassment. It thinks harassment would be more appropriately dealt with in the section of the Bill concerning the right to be protected against violence: see Section 6 at page 43 below.
 

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SECTION 5
THE RIGHT TO LIFE
The Commission now prefers not to include any part of the European Convention on Human Rights or its Protocols in the wording of the latest recommendations on the Bill of Rights. Instead the European Convention and its Protocols will be, as lawyers say, “incorporated by reference”, i.e. there will be wording saying that the rights contained in the Convention and its Protocols are deemed to be contained in the Bill of Rights (see Section 20 at page 87 below).
While Article 2 of the European Convention already defines the right to life the Commission considers that a short supplementary clause is required to address the specific needs of Northern Ireland. In recent years significant decisions have been issued by the European Court of Human Rights, by the House of Lords and by courts within Northern Ireland, to do with the “procedural” aspect of the right to life, i.e. the right to have a killing effectively investigated. The Commission is content to have that procedural right safeguarded through the developing jurisprudence of the European Court of Human Rights. By virtue of section 2 of the Human Rights Act 1998, the European Court’s rulings must be taken into account in the courts of Northern Ireland and in the House of Lords whenever cases on the right to life come before them.
The Commission therefore proposes that the Bill of Rights should contain a supplementary right regarding the use of lethal force, since this has been a matter of special concern in Northern Ireland.
Section 5 The right to life
No one shall be deprived of life by a law enforcement official except:
(a) when the official is acting in self-defence or defence of others or when there is an imminent threat of death or serious injury;
(b) to prevent the perpetration of a particularly serious crime involving grave threat to life; or
(c) to arrest a person who is presenting such a danger as in (b) and who is resisting the arrest;
but only when less extreme means are insufficient to achieve these objectives.
In this text, “law enforcement official” includes a police officer or a member of the armed forces.
 

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SECTION 6
THE RIGHT TO BE PROTECTED AGAINST VIOLENCE
Article 3 of the European Convention on Human Rights already provides for the right not to be subjected, in any circumstances, to torture or inhuman or degrading treatment or punishment. Along with Article 2 (the right to life), this creates a duty on the State to protect members of the public, as far as it reasonably can, from unlawful violence. In their discussions of the submissions made on the 2001 proposals the Commissioners were persuaded by the view that a Bill of Rights for Northern Ireland needed to send a clear signal that violence against the person was a breach of the human rights of that person. That has led to the formulation in the Preamble of a right to freedom from fear, violence and intimidation.
The Commissioners also recommend that the Bill should include a right to physical integrity and, alongside it, a right to dignity.
The suggested wording for this supplementary right is as follows:
Section 6 The right to dignity and physical integrity.
(1) Everyone has the right to dignity and physical integrity.
(2) Laws shall be passed to ensure that the use or threatened use of all forms of violence, including violence in the home, bullying in the workplace or in schools, and intimidation or harassment in any context, is prohibited and, where appropriate, punished.
(3) All public bodies are under a duty to oppose the use of any form of violence for political or private ends, and to work to promote non-violence, peaceful coexistence, tolerance and respect in society at large, and among and between members of any community or group identified on any of the grounds specified in section 4(3).
 

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SECTION 7
THE RIGHT TO LIBERTY
The Commission’s 2001 proposals on rights within the criminal justice system were very extensive. This reflected the high priority which the Commission gave to the topic, realising that unless people can have confidence in the fairness of the criminal justice system in their society they are unlikely to be have confidence in any of the institutions of the State. Articles 5, 6 and 7 of the European Convention on Human Rights already protect criminal justice rights to a considerable degree, but the Commission nevertheless wanted to provide expressly for a number of supplementary rights. Some of these had already been recognised by the European Court of Human Rights as rights that must be implied into the European Convention, and some had already been recognised either by Westminster or by the courts as part of the ordinary criminal law and procedure applicable in Northern Ireland. Commissioners wanted them to be given the status of fundamental rights.
As the Commission’s Summary of Submissions makes clear, a high number of organisations commented on the 2001 proposals for supplementary criminal justice rights. By and large the comments were supportive, although some thought the Commission had not gone far enough and a few others thought that it had gone too far. In the summer of 2003 the Commissioners further considered each of the proposed supplementary rights and asked themselves whether the list was still appropriate. They agreed that, while a few minor changes should be made, the list was for the most part worth retaining. They also felt that the list of supplementary rights would be easier to understand if they were divided as appropriate into those falling under the heading “The right to liberty” and those falling under the heading “The right to a fair trial”. In its amended form the first part of that list therefore reads as follows in what becomes section 7 of the proposed Bill of Rights:
Section 7 The right to liberty
(1) Everyone has the right not to be subjected to search or seizure, whether of the person, property, correspondence or otherwise, unless it is in accordance with a reasonable and proportionate procedure prescribed by law.
(2) Everyone who is arrested has the right to be informed immediately of his or her rights as an arrested person in a language and manner which he or she understands.
(3) Everyone who is arrested has the right to consult privately with a solicitor, if necessary at state expense, before being questioned. This right must be granted without delay, save where legislation provides otherwise,
 

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and the solicitor must, so far as this is reasonably practicable, be a person chosen by the arrested person.
(4) Everyone who is deprived of liberty has the right to inform a relative or friend without unreasonable delay that he or she is being so deprived and where this is occurring.
(5) Everyone who is deprived of liberty has the right to be visited without unreasonable delay by, and to correspond with, in particular, members of his or her family and shall be given adequate opportunity to communicate with the outside world.
(6) Everyone who is deprived of liberty has the right to conditions of detention which are consistent with human dignity and in particular has the right to adequate accommodation, association and protection, as well as regular exercise, nutritious food, adequate reading material, medical treatment and spiritual support. Conditions of detention shall be independently monitored.
(7) Every child who is deprived of liberty shall have the following minimum rights:
(a) the right, if not convicted of an offence, to be separated from children who have been convicted;
(b) the right to maintain regular and direct contact with parents, siblings and other family members and friends, save in exceptional circumstances;
(c) the right to access the school curriculum and/or educational and vocational training necessary to prepare for his or her re-integration and constructive participation in society following release.
(8) Everyone who is questioned while under arrest has the right to have a solicitor present during the questioning and to have the questioning audio-recorded and video-recorded.
(9) Everyone who is questioned while under arrest has the right if he or she needs it to have a competent interpreter present during the questioning.
(10) Everyone who is questioned while under arrest has the right to remain silent and to have no adverse inferences drawn at a later stage if this right is exercised in the absence of legal advice.
 

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(11) Everyone who is deprived of liberty on suspicion of having committed an offence has the right to be charged or to be released within 24 hours unless a court orders an extension to the detention.
(12) Everyone who is charged with a criminal offence has the right to be released pending trial unless the prosecution can show relevant and sufficient reasons to justify continued detention.
Several of these provisions are identical to those in the Commission’s 2001 consultation document and are not commented on further here. The section takes account of the fact that people can be deprived of their liberty in a variety of ways, not just by being arrested.
The Commission understands the European Convention on Human Rights to mean that internment without trial is prohibited unless the Government can convince the European Court of Human Rights that a derogation is justified under Article 15 of the Convention. The Commission finds it extremely difficult to imagine a situation in Northern Ireland where such a derogation would be justified and is opposed to the current United Kingdom derogation which has been issued to legitimate the detention provisions in the Anti-terrorism, Crime and Security Act 2001.
Section 7(2) makes it clear that the right to a solicitor cannot be an absolute right to a solicitor of one’s choice. The Commission believes it is more realistic to confer the right to a solicitor of choice “so far as this is reasonably practicable”. This takes account of the practical difficulties in securing the availability within a reasonable timescale of the solicitor of choice.
In section 7(4) the Commission has deleted a proposed reference to the UN’s Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment. That was deemed to be too specific for a document such as the Bill of Rights, especially as section 1(1)(c) of the proposed Bill already requires law enforcers to have due regard to international law and practice when interpreting the Bill (see Section 1 at page 21 above).
Section 7(5) is intended to cover not only persons who have been deprived of their liberty while being questioned or while awaiting trial but also persons who have been deprived of their liberty following conviction for an offence and in other circumstances.
Section 7(6) provides additional rights for children who are deprived of their liberty, to reflect their special vulnerability.
In section 7(8) the words “in the absence of legal advice” are there to reflect the standard set by the European Court of Human Rights in cases such as Murray (John) v United Kingdom (1996) and Averill v United Kingdom (2000).
 

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SECTION 8
THE RIGHT TO A FAIR TRIAL
The Commission proposes the following:
Section 8 – The right to a fair trial
(1) Everyone remanded in custody pending trial for an indictable offence has the right to spend no more than 110 days in custody before the commencement of the trial and everyone remanded in custody pending trial for a summary offence has the right to spend no more than 40 days in custody before the commencement of the trial. These rights can be waived or can be removed where the interests of justice clearly require this.
(2) Everyone charged with a serious criminal offence has the right to be tried by a judge sitting with a jury unless he or she waives this right.
(3) Everyone charged with a criminal offence has the right to have excluded from consideration by the court any evidence which has been obtained as a result of the violation of any right in the Bill of Rights for Northern Ireland.
(4) The State shall take appropriate measures to ascertain any particular vulnerability of individuals who have been arrested, remanded or charged with a criminal offence and shall take effective measures to protect the right to a fair trial of individuals with such vulnerability.
(5) Every child suspected or accused of having infringed the criminal law has the right to have an appropriate adult to represent his or her interests, in addition to any legal representative who may have been appointed.
(6) Every witness in a trial has the right to reasonable protection, assistance and support throughout the legal process.
(7) The State shall ensure that judges and lawyers:
(a) are able to perform all of their professional functions freely and without intimidation, hindrance, harassment or improper interference, and
(b) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics.
(8) Everyone convicted of a criminal offence has the right to an appeal to, or a review by, a higher court, whether against the conviction, the sentence
 

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or both.
(9) A person convicted of a crime shall be given a custodial sentence only as a measure of last resort. The State shall develop and encourage the use of alternatives to prosecution and custodial sentences.
(10) Every prisoner has the right to be treated humanely, with dignity and with the objective of enabling him or her to re-enter society safely and effectively.
(11) Every prisoner retains the rights conferred by the Bill of Rights for Northern Ireland unless there are clearly justifiable reasons for denying the prisoner those rights.
(12) The State shall take effective measures to ensure that favourable conditions are created for the reintegration of ex-prisoners into society.
Section 8(1) reflects advice that the Commission has had from experts in Scottish law that the standards in place there are workable.
In proposing section 8(2) the Commission recognises that opinion in the United Kingdom as a whole is moving against the need for jury trials in all serious cases. However the Commission believes that the people of Northern Ireland, given their forced reliance on non-jury trials during the recent troubles, would be less prepared to sacrifice the principle of jury trials in non-emergency situations and the Commission therefore recommends that the provision be included. However it would particularly welcome views on whether this is appropriate.
The Commission would also welcome views on section 8(3). It might be felt that on the facts of particular cases the automatic exclusion of evidence obtained in breach of a right in the Bill of Rights might well be a disproportionate response. If someone were to be acquitted of murder because, for example, the main incriminating evidence had been obtained in breach of the right to a private life, it may be better to punish the offending officials than to allow the accused to go free. But the present wording certainly provides a powerful incentive to conduct investigations properly.
Section 8(4) confers a right which is not contained in the UN Convention on the Rights of the Child but which the Commission thinks is very important.
Section 8(5) reflects the fact that the right to a fair trial requires the suspect to have an appropriate degree of understanding of what he or she is accused of. It is appropriate therefore to provide vulnerable suspects with the proper degree of protection in order to ensure they are not disadvantaged compared with non-vulnerable suspects in the criminal justice system. In its Green Paper “Procedural safeguards for suspects and defendants in criminal proceedings throughout the European Union” (19 February 2003), the Commission of the European Communities identified difficulties with this right, namely,

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how to define vulnerable groups and how to establish mechanisms for offering protection. That Commission identified a non-exhaustive list of potentially vulnerable groups, including foreign nationals, children, persons with a mental or emotional handicap, persons who are vulnerable as a result of their physical state, persons who cannot read or write, persons with refugee status, persons who are vulnerable by virtue of having children or dependents, and persons dependent on alcohol or drugs. The Human Rights Commission acknowledges that the assessment and identification of vulnerable people can be difficult but nevertheless recommends that the State be obliged to ensure that vulnerable people are so identified and effective measures put in place to protect their right to a fair trial.
In section 8(6) the word “trial”, when interpreted in the light of the case-law of the European Court of Human Rights, refers to the whole judicial process from the moment of charge to the moment of conviction, acquittal or other conclusive outcome.
Section 8(7) omits a proposed provision conferring the right on lawyers to travel and consult with their clients freely at home and abroad. This was deemed to be already covered by the right to perform professional functions freely.
Section 8(8), in line with the South African Bill of Rights, allows for reviews of convictions as well as appeals against them.
Sections 8(9) to 8(12) are provisions which the Commission included in its 2001 consultation paper and which met with little or no opposition from those who responded to that paper.
The right to remain silent at a trial has not been provided for in this section because the Commissioners felt that it was already clear from the European Court of Human Rights what the required standard is in this area. Under the European Convention inferences can be drawn provided there are adequate safeguards in place to ensure that the trial as a whole is not unfair. The Commission is not convinced that the right to remain silent at a trial should be an absolute right in the sense that no inferences can ever be drawn from the silence.
Commissioners considered including in the proposed Bill the right to be present at one’s trial, a right not mentioned in the 2001 proposals, but they decided against doing so, noting that the European Court of Human Rights does not itself believe that such a right can be implied into Article 6 of the European Convention.
Commissioners also considered inserting a provision which would prohibit the second trial of a person for an offence of which he or she has already been found not guilty (the principle against double jeopardy). As this is a matter which is regulated by Article 4 of Protocol 7 to the European Convention on Human Rights, one of the protocols not yet ratified by the United Kingdom, the Commission prefers to regulate it by incorporating that Protocol through section 20 of the Bill of Rights (see page 87 below). The text of Article 4 of Protocol 7 is on page 142.

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SECTION 9
CIVIL AND ADMINISTRATIVE JUSTICE
The Commission’s 2001 proposals contained just one short provision on any kind of justice system other than criminal justice, and that was on administrative justice – the system which applies when individuals and companies interact with the public sector, e.g. when they are seeking grants, licences or social security benefits. The Commission wishes to retain this supplementary right, since the European Convention on Human Rights does not expressly confer it and the European Court has not unequivocally implied it into the European Convention. The Commission feels, as with criminal justice, that unless the people of Northern Ireland can have confidence in the fairness of the administrative justice system they will be unlikely to have confidence in other institutions of the State.
The Commission has also been persuaded that a crucial right in this area should be that of access to justice, including access to civil justice – the system which individuals and companies use when they are taking or defending private legal proceedings. The European Convention, as interpreted by the European Court of Human Rights, already sets some standards in this regard but it is not unequivocal. In the Commission’s view there is little sense in having an excellent justice system if people cannot in practice access it, perhaps because of the expense involved, the expertise required, the location of buildings or the demanding procedural hurdles which have to be overcome.
The precise circumstances in which access to justice should be allowed should depend on the details of legislation, but it is important to have the fundamental right included in the Bill of Rights so that its essence cannot be ignored by such legislation. Any qualifications to the right would need to be consistent with the limitations permitted by section 16 of the Bill of Rights (see page 77 below). Access to justice is already provided in very many situations in Northern Ireland but the Commission believes it needs to be copper-fastened by the Bill of Rights. In particular, there needs to be a right to information about access to justice.
The Commission’s revised proposals in this area therefore read as follows:
Section 9 Civil and administrative justice
(1) Everyone has the right of information about, and access to, civil and administrative justice.
(2) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
(3) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons for that action.
 

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Sub-sections (2) and (3) are virtually identical to sections 33(1) and (2) of South Africa’s Bill of Rights. Within the European Union the proposed Charter of Fundamental Rights provides in Article 41(1) that “Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union”. Article 41(2) goes on to say that this right includes, amongst other things, “the obligation of the administration to give reasons for its decisions”.
Existing law requires administrative bodies, as a minimum, to take decisions which are not unreasonable, not illegal and not “improper”. It also protects, to some extent, the “legitimate expectations” which people have been led to believe they have as regards administrative bodies. In addition such bodies must comply with the Human Rights Act 1998. In practice, however, it can be difficult to prove that an administrative body has acted unreasonably, because the courts have usually required it to be shown that no body with those sorts of powers could reasonably have come to the particular decision in question. Moreover existing law does not require administrative bodies to give reasons for all the decisions they take, even those which have adverse consequences for individuals. The European Court of Human Rights has not yet laid down clear standards in this regard. Rather than wait for the courts to develop the law in the way that the Commission thinks it should be developed, the Commission prefers to have the position clarified in the Bill of Rights.
 

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SECTION 10
THE RIGHTS OF VICTIMS
In its 2001 proposals the Human Rights Commission distinguished between rights of the victims of the conflict and (in the hope that the conflict was now over) rights of future victims of crimes. An additional clause was recommended on violence against women and a separate chapter dealt with the right of all victims of human rights abuses to have an effective remedy.
Having deliberated upon the submissions made on these proposals and upon their own further ideas on the topic, Commissioners now recommend that the Bill should not make a distinction between victims of the past and victims of the future. Instead it should confer rights on all victims of crimes and human rights abuses who are suffering at the time when, or after, the Bill comes into force. This is mainly because it is notoriously difficult to define people who are “victims of the conflict” and it is hard to justify giving such people, however defined, greater rights than are given to victims of so-called “ordinary” crimes.
The Commission’s own report on Human Rights and Victims of Violence (July 2003) relies heavily on the current international standards applicable to victims of crime and human rights abuses and it wishes to maintain that reliance in the proposed Bill of Rights. International standards on the right to truth and reconciliation are not yet fully developed but the Commission hopes that the proposed sub-section dealing with that issue will help to lend weight to the thrust towards such a development.
The new suggested wording of this section is as follows:
Section 10 The rights of victims
(1) Legislation shall be introduced to give effect to the following rights:
(a) the right of every victim to be treated with compassion and respect for his or her dignity;
(b) the right of every victim to a level of social care and support in accordance with his or her needs, particularly in respect of personal security and access to health care, income support, employment, training and education;
(c) the right of every victim to obtain redress by way of restitution or compensation through formal or informal procedures that are expeditious, fair, inexpensive and accessible;
(d) the right of every victim to have the crime or human rights violation in question investigated promptly, impartially and thoroughly;
 

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(e) the right of every victim to be informed of the progress of any relevant investigation and to have his or her concerns taken into account in the conduct of any relevant legal proceedings;
(f) the right of every victim to reasonable assistance during the trial of any person charged in connection with the crime or human rights violation in question.
(2) With a view to promoting the principles of truth and reconciliation in the aftermath of a lengthy period of conflict, the Government shall take legislative and other measures to ensure that the loss and suffering of all victims of that conflict and the responsibility of state and non-state participants are appropriately and independently established and/or acknowledged.
(3) In this section “victim” means a person who, individually or collectively with others, has suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of his or her fundamental rights, through acts or omissions that are in violation of criminal laws or human rights standards. The term also includes, where appropriate, the family of such a person, his or her dependants, those with whom the victim has a close relationship and persons who have suffered harm in intervening to assist a victim in distress or to prevent victimisation
(4) A person may be considered a victim regardless of whether the perpetrator of the crime or human rights violation in question is apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim.
Section 10(1) is in line with international standards on the rights of victims, in particular with the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (adopted by the UN General Assembly in 1985). The Commission referred to this Declaration at several points in its recently published report Human Rights and Victims of Violence. It thinks it is appropriate that this sub-section should be worded in a way which requires legislation to be passed to achieve certain goals – in other words, the detail of how the rights are to be conferred in practice can be left to ordinary legislation. Those enacting such legislation should consider, for example, whether victims should be given the right to be informed of the release from prison of the person(s) convicted of the crime or human rights violation in question. A scheme to that effect has recently been introduced for Northern Ireland under the Justice (NI) Act 2002. The Commission has considered recommending such a right in the Bill of Rights but for the moment prefers to leave the matter to be dealt with by specific legislation. This is something on which the Commission would welcome further views.
 

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Sub-section 10(1)(b) draws together all the rights of all victims. The wording refers not to the highest possible level of social care but rather to “a level of social care and support in accordance with their needs”. It does not refer to the right not to be discriminated against since this is already provided for in the section on equality in the Bill of Rights (section 4(3) – see page 38 above).
Sub-section 10(2) encapsulates the obligation on the State to promote the principles of truth and reconciliation in the aftermath of a lengthy period of conflict. This formulation recognises that victims of that conflict may live outside Northern Ireland.

Sub-sections 10(3) and (4) contain provisions defining who is a victim for the purposes of the preceding sub-sections. They are largely based on the definition used in the UN Declaration: victims as persons who have suffered harm through acts or omissions that violate criminal laws or laws forbidding the criminal abuse of power. The Commission’s definition is wider in that it embraces victims of human rights violations which may not themselves be crimes (such as breaches of rights to a private and family life, or to freedom of expression). The Commission thinks it is appropriate to make this extension, given the importance of the concept of human rights. When legislation is being enacted to give effect to the rights listed in section 10(1) it will be able to take account of the fact that some violations are clearly more serious than others and that the rights (say) to social care, compensation and an investigation should be protected in a way which is proportionate to the seriousness of the violation in question.
Section 10 does not include a special provision on violence against women and girls. Commissioners felt that it was difficult to justify excluding a similar provision for men and boys. Instead, a provision on violence in the home has been inserted into the proposed section 6 of the Bill of Rights, the right to be protected against violence – see page 43 above.
 

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SECTION 11
THE RIGHTS TO A FAMILY LIFE AND A PRIVATE LIFE
The 2001 consultation document had comparatively little to say about the right to a family life and a private life. It repeated the provisions of Articles 8 and 12 of the European Convention on Human Rights and added four supplementary rights, two dealing with data protection and two dealing with the right to marry.
The Commission has reconsidered these provisions and has concluded that they deserve to be included in the Bill of Rights. The Commission feels that they reflect particular circumstances of Northern Ireland, given the way in which private data about individuals here has been mishandled in the past and given also the somewhat conservative nature of society in Northern Ireland when it comes to civil partnerships and divorces. While not everyone may approve of such partnerships or of divorces the Commission believes that there should be rights guaranteed to those individuals who wish to avail of those arrangements. Bills currently before the Westminster Parliament and recent legal developments in other countries indicate a change in the prevailing policy on these matters and the developing standards laid down by the European Court of Human Rights have helped to drive these reforms.
The rights in question are now worded as follows. The order has been reversed from that used in the 2001 document in order to reflect the order in the heading (“family life”, then “private life”).
Section 11 The right to a family life and a private life
(1) The State shall adopt legislation to recognise and guarantee equality of rights and responsibilities of a private law character for persons living together in marriage or in civil partnerships. Such legislation shall provide for the formal recognition of the relationship and the rights and responsibilities of the parties during the relationship and in the event of its dissolution.
(2) Everyone who is married or in a civil partnership has the right to have the marriage or partnership terminated in accordance with the law.
(3) Everyone has the right to the protection of personal data concerning him or her. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law.
(4) Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
 

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Section 11(1) and (2) partly reflect the changes which are to be introduced by the Civil Partnerships Bill, presented to Parliament on 31 March 2004. It is still not clear, however, whether this Bill will extend to Northern Ireland. It may well not do so, given that the responsibility for such family law matters has been devolved to the Northern Ireland Assembly, but as the Assembly is currently suspended the Government may instead decide to proceed through the Order in Council procedure at Westminster.
The right of transsexuals to marry is being conferred, albeit in certain limited situations, by the Gender Recognition Bill, which is currently before Parliament. As presently drafted the Bill does not extend to Northern Ireland, but as it was prompted largely by decisions against the United Kingdom in cases before the European Court of Human Rights in July 2002 the Government will have to ensure in due course that its provisions are extended to Northern Ireland.
Sections 11(3) and (4) are based on Articles 8(1) and (2) of the proposed EU Charter of Fundamental Rights.
 

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SECTION 12
THE RIGHTS OF CHILDREN
In its 2001 proposals the Commission had more to say about children’s rights than about any other category of rights. The submissions made to it on these proposals were largely supportive, a