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, although many wondered on what basis the Commission had made its selection of rights given that some but not all of the provisions in the UN Convention on the Rights of the Child had been adopted for inclusion.
Among the many issues thrown up by these proposals were the questions (a) should the Bill of Rights have a separate chapter on children’s rights at all, given that children fall within the general word “everyone” which is used in many other sections of the Bill of Rights, and (b) if children are to have a separate chapter devoted to them why should other vulnerable sectors of society, such as older people, people with a disability or members of black and minority ethnic groups, not have chapters devoted to their position too?
After prolonged discussions, during which the views of those who had made submissions on the 2001 proposals were carefully considered, Commissioners decided that the circumstances affecting children in Northern Ireland did justify devoting a separate chapter to their rights but that to avoid unbalancing the Bill the 2001 proposals could be reduced in length by focusing on those rights which could not otherwise be “mainstreamed” into the rest of the Bill of Rights and by referring more generally to the duty on government to ensure that all of the provisions of the UN Convention on the Rights of the Child are fully implemented in Northern Ireland. Experts from the Council of Europe also advised the Commission against trying to put too much detail into the Bill on one particular category of rights. In its discussion of the proposed section 4 (page 27 above) the Commission outlined different ways of protecting the rights of members of specific sectors of society other than children.
In the draft section which follows, therefore, the Commission has included specific provisions only where it thinks it is necessary to go beyond the protections afforded by the UN Convention. A number of the Convention’s provisions are phrased in terms of duties being placed upon states as opposed to rights being conferred upon children and the Commission generally prefers the latter approach. In addition, some fourteen years after the adoption of the Convention, the Commission considers that there is a need to learn from its subsequent interpretation, especially by the UN’s Committee on the Rights of the Child. The Commission is otherwise keen for the Convention to be given effect in Northern Ireland. As with the Framework Convention for the Protection of National Minorities (see Section 3 at page 29 above), the Commission believes that the UN Convention standards are recent and comprehensive enough to deserve to be incorporated into the law of Northern Ireland en bloc except where local standards are higher. The Commission would welcome views on whether this approach has more to commend it than the approach adopted in the 2001 proposals for a Bill of Rights.
 

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The Commission is also conscious that whatever the Bill of Rights provides needs to be consistent with section 75 of the Northern Ireland Act 1998. In other words, the impact of the provisions on the right of people of different ages to equal opportunity needs to be given due regard. And the “particular circumstances” of Northern Ireland must be borne in mind also. In this context it is worth remembering the need for future generations not to make the mistakes of past generations. Allowing children to enjoy a society where the values of rights and responsibilities are fully realised could have significant benefits for the future stability of this part of the world.
Where clauses which were in the 2001 draft have not been repeated, this is because:
(a) the clauses were deemed not to add significantly to the protection afforded by the UN Convention on the Rights of the Child, which is to be given effect in Northern Ireland by virtue of the proposed section 12(1)(c), or
(b) the clauses were deemed to be too specific and not to add significantly to the more general provisions included in the section, or
(c) the clauses were deemed to be too vague to be enforceable in a way that would make a real difference to children’s lives, or
(d) the clauses have been reflected in other sections of the Bill (see e.g. Sections 6 and 7).
The Commission believes that, after consultation with the office of the recently appointed Commissioner for Children and Young People and with others, there should be further specific legislation enacted to protect children’s rights. The present Children (NI) Order 1995 is in need of reform.
The Commission also plans to produce a version of its Bill of Rights written in a language which is readily understandable by children.
The proposed new provisions read as follows.
Section 12 The rights of children
(1) (a) For the purposes of this Bill of Rights, a child means everyone below the age of 18 years.
(b) In all actions concerning children, whether undertaken by public or private institutions, individuals or bodies, courts of law, administrative or legislative authorities, the best interests of the child shall be the paramount consideration.
(c) Public bodies shall carry out their functions in relation to children in accordance with the provisions of the UN’s Convention on the Rights of the Child.
(2) Every child has the right to participate effectively, either directly or indirectly through an independent representative, in all proceedings

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affecting him or her, whether administrative or judicial, in public or private law. Every child has the right of access to the law and to legal representation.
(3) (a) The State shall provide adequate support and assistance to parents and other primary carers to enable every child in so far as is possible to grow up in a safe family environment.
(b) Every child who is denied a safe family environment is entitled to special protection and support from the State in the best interests of the child within a reasonable time.
(c) Every child who is separated from one or more parents or otherwise deprived of his or her family environment has the right to maintain personal relations and direct or indirect contact with any parent or family member except where this is contrary to his or her best interests.
(d) Children leaving care shall be prepared for and supported in the transition from care to independent living. The State’s obligation to protect and support shall end only when it is no longer required.
(4) The age at which a person can be held criminally responsible shall be
not less than 12 years.
(5) Every child living with a disability has the right to the greatest extent possible to enjoy an independent and fulfilling life in conditions which ensure dignity, promote self-reliance and facilitate his or her active participation in the community. He or she has the right to special care and assistance, to assessment and appropriate services, and to effective education, which allows the child, to the greatest extent possible, to maximise his or her potential for personal development, independence and social inclusion.
(6) The State shall take appropriate measures to ensure that the rights of children are widely known.
Sections 12(1)(a) and (b) are taken directly from the UN Convention on the Rights of the Child, although in section 12(1)(a) the Commission has substituted the word “everyone” for the words “every human being” in order to be consistent with the rest of the proposed Bill of Rights.
Section 12(1)(c) is the Commission’s attempt to ensure that, although they have not yet been directly incorporated into the domestic law of any part of the United Kingdom, the provisions of the UN Convention are adhered to in practice by all public bodies in Northern Ireland.
 

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It is possible to argue that section 12(3) would be better placed within section 11, which deals with the right to a family life. Views would be welcomed on this.
Section 12(4) increases the age of criminal responsibility from the present 10 years to at least 12 years. Commissioners would acknowledge that they do not have the expertise to decide what is the optimum age at which to start imposing criminal liability on children, but they are unanimous that 10 years is too young. They would like the age to be kept under review and to be raised if the reviewing body so recommends. Commissioners also acknowledge that, at whatever age criminal responsibility begins, children under that age need to be protected and supported if they are accused of what would for an older person amount to criminal conduct.
Section 12(5) reflects some of the thinking behind a proposed UN Convention on the Rights of Persons with Disabilities. The Northern Ireland Human Rights Commission is trying to influence the content of that Convention by making submissions to the UN working group in question.
Section 12(6) should be read in conjunction with section 13(5), on the nature of the education which the State should be under a duty to ensure is provided (see page 66 below).
 

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SECTION 13
EDUCATION RIGHTS
The Commission’s 2001 consultation document reiterated Article 2 of Protocol 1 to the European Convention on Human Rights but set out a number of supplementary rights which the Commission felt should be guaranteed in Northern Ireland. Having looked closely at what submissions had to say about this topic, and having deliberated amongst themselves bearing in mind other developments which had occurred in the field of education in the interim, Commissioners are content to leave the proposals on education rights virtually unchanged from 2001. The new section would read in this way:
Section 13 Education rights
(1) Everyone has the right to an effective and appropriate education which is to the greatest extent possible directed towards the full development of the person, including his or her talents, mental and physical abilities and sense of dignity and which enables all persons to participate effectively in the life of the community.
(2) The State shall ensure the right of parents to choose for their children education in schools with a particular religious ethos, education in integrated schools, education in Irish-medium schools or education specialising in the needs of children with disabilities, bearing in mind the best interests of the child and the competence of the child to decide for him- or herself in accordance with his or her age, maturity and understanding.
(3) The State shall provide financial and other support on an equitable and transparent basis to all schools established in accordance with need and with sub-sections (1) or (2) above, subject to reasonable requirements, including minimum numbers of pupils in any area and without prejudice to the need to redress inequalities.
(4) No individual shall be denied admission to any educational establishment receiving state funding on any of the grounds specified in section 4(3) of this Act.
(5) The State shall take appropriate measures to ensure that the education rights and needs of all children are respected, especially children with disabilities, pregnant children, children in care, children in juvenile justice centres and children of other disadvantaged groups.
 

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(6) The State shall ensure that education in all its forms shall be directed to the promotion of human rights, equality, dignity of the person, respect for diversity and tolerance.
Section 13(2) aims to allow parents the choice of having their children educated in integrated or Irish-medium schools, and in schools specialising in the education of children with a disability. The Commission is aware that new legislation on special educational needs and disability is likely to be introduced for Northern Ireland within the next year or so and wishes the Bill of Rights to help provide a framework for that. Commissioners would welcome further comments on this particular provision, since they want to provide rights which are both desirable and also realisable in practice.
Section 13(3) applies not just to schools provided in accordance with sub-section (2) but also to schools provided in accordance with sub-section (1), since otherwise there may be unjustifiable inequalities. If there is a need for “affirmative action” measures this can be argued for within the terms of section 4(5) above.
Section 13(4) cross-refers to the non-discrimination sub-section to avoid doubt as to the criteria to be applied by schools and allow for consistency in the application of non-discrimination standards. It would give a right of access to “mainstream” schooling for children with disabilities where this is in their best interests.
Section 13(5) reflects the need to ensure that the educational needs of particularly vulnerable children are fully satisfied.
Section 13(6) is based on the general provisions on the purpose of education in the Universal Declaration on Human Rights and the UN’s International Covenant on Economic, Social and Cultural Rights.
 

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SECTION 14
LANGUAGE RIGHTS
This topic was one which proved to be particularly controversial amongst the individuals and organisations who responded to the 2001 consultation document. Supporters of the Irish language were particularly indignant that users of that language had not been granted greater rights. Supporters of Ulster-Scots also complained that the Commission had failed to recognise Ulster-Scots as a language.
Experts from the Council of Europe, who visited the Commission in October 2003, advised the Commission not to be over-ambitious in this (or in any other) part of the Bill of Rights. They felt that a Bill of Rights was not the place in which to go into detail about language rights and that instead the Bill should simply provide a framework within which more specific legislation could later be constructed.
The Commission has not yet reached consensus on the best way forward in this area. In the proposed section set out below there are three alternative versions of section 14(1). The Commission would particularly welcome views on which of these is preferable. Commissioners are at present of the view that, whichever version of section 14(1) is adopted, sections 14(2), 14(3) and 14(4) should also be adopted. Again, the Commission would appreciate hearing other people’s views on this.
Section 14 Language rights
(1) In Northern Ireland English and Irish shall be official languages.
or:
In Northern Ireland English shall be the first official language and Irish shall be the second official language. Legislation shall be enacted to prescribe the situations in which the second official language can be used.
or:
Legislation shall be enacted to prescribe the situations in which people have the right to use the language of their choice.
(2) Everyone has the right to communicate with any public body through an interpreter, translator or facilitator when this is necessary for the purposes of accessing, in a language that he or she understands, information or services essential to his or her life, health or security. In this context “language” includes sign language and other forms of communication.
 

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(3) Without prejudice to sub-sections (1) and (2) above, members of linguistic communities in Northern Ireland shall have the right to:
(a) the promotion of conditions necessary to maintain and develop their language;
(b) use their language in dealings with public bodies, where there is sufficient demand and a real need;
(c) display signs and other information in their language;
(d) display local street and other place names in their language; and
(e) to be educated in and through their language, where there are substantial numbers of users and sufficient demand.
(4) Without prejudice to sub-sections (1), (2) and (3) above, in relation to the Irish language and Ulster-Scots legislation shall be enacted to implement the commitments made under the Belfast (Good Friday) Agreement and the European Charter for Regional or Minority Languages.
The wording of section 14(1) is not something on which Commissioners have been able to reach unanimous agreement. Those who are in support of the first or second of the three alternatives set out above are prepared to let the consequences of such a provision be worked out in due course through the courts or through a Language Act. They point out that it is quite common for countries to designate the official languages of the country. Those who are not in support of either of these alternatives feel that to insert such a provision in a Bill of Rights for Northern Ireland is both unnecessary and undesirable. They prefer instead the more general wording of the third alternative. They share with supporters of the second alternative the view that neither is intended to impose a duty on the State to confer an absolute right on everyone in Northern Ireland to use the language of their choice in every possible setting and to expect to be understood when doing so. They believe that the exact parameters within which the right to use a language should be protected by law should be a matter to be decided as and when the law in question is being drafted and debated. All of the Commissioners agree, however, that in so far as there is a statutory ban on the use of languages other than English in the courts of Northern Ireland (through the Privileges of Parliament (Ireland) Act 1727), such a ban ought to be abolished. The Commission would welcome comments on which of these three alternatives is preferable, or on whether there is a fourth alternative which is to be preferred over all of them.
Section 14(2) provides a minimum floor of rights which any future law could not undermine. It ensures that when making oneself understood in a language other than English is literally a matter of life or death (e.g. in a hospital) the requisite translation or interpretation must be made available. The second sentence of this sub-section is intended to clarify, lest there be any doubt about it, that people who cannot use a

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Progressing a Bill of Rights for Northern Ireland: An Update conventionally spoken or written language because, for example, of a speech or sight impairment, have the right to use an alternative form of communication. The Commission understands that sign language has been recognised within England and Wales as a language for the purposes of the European Charter for Regional or Minority Languages. The Commission would like the same status to be accorded to it and to other essential forms of communication in Northern Ireland.
Section 14(3) is again a provision which not all Commissioners wish to include. Some see it as a useful adjunct to sub-sections (1) and (2), especially as it draws upon some of the language used in the European Framework Convention for the Protection of National Minorities; others see it as unnecessary. Again, the views of others would be very welcome.
Section 14(4) aims to ensure that, as a minimum, the commitments made by the two Governments and the political parties in the Agreements of 10 April 1998 are fully adhered to in this context.
The Commission realises that this is a difficult area. It therefore looks forward to hearing again from persons and groups interested in language rights as to whether this framework is a satisfactory one within which to proceed in the future.
 

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SECTION 15
SOCIAL, ECONOMIC AND ENVIRONMENTAL RIGHTS
In the responses submitted to the Commission’s 2001 consultation document there was more dissatisfaction with the interpretative provision placed at the start of the proposed clause on socio-economic rights (and expanded upon in the commentary preceding the clause) than with the rest of the clause. Critics said that the interpretative provision risked limiting protection of these rights to situations where, when such rights are allocated at all, they are allocated in a discriminatory way or in a way which offends due process. That was certainly not the intention of the Commission when, unanimously, it suggested these provisions in September 2001. To avoid any further confusion, Commissioners now wish to clarify the provision. They want there to be no doubt over how the social, economic and environmental rights in this part of the Bill of Rights should be protected and enforced. The results of opinion surveys conducted on behalf of the Commission show marked support for the inclusion of these rights in a Bill of Rights for Northern Ireland (see Appendix 4 at page 145).
At present the Commission is putting forward three alternative ways of protecting social, economic and environmental rights and is inviting comments on which of these ways is to be preferred (or on whether there is a further alternative which the Commission has not put forward). In line with the wishes of the people of Northern Ireland as expressed in opinion surveys (see Appendix 4 at page 145), and further to the views expressed by experts from the Council of Europe and the United Nations, the Commission wishes these rights to be considered indivisible from, and inter-dependent on, civil and political rights.

Under the first alternative this section of the Bill of Rights would protect a set of minimum rights only. They would be directly enforceable through the courts, with the remedy available being at the discretion of the judges as with all other breaches of the Bill of Rights (see Section 18 at page 83 below).
Under the second alternative this section of the Bill of Rights would protect not a set of minimum rights but a larger range of rights, all of which would be enforceable not as fully-fledged rights but through imposing an obligation on the State to ensure that they are progressively realised, in the way that the UN Covenant on Economic, Social and Cultural Rights often requires.
The third alternative would be to combine the first and second approaches, so that as well as ensuring the direct enforceability of a set of minimum rights the Bill of Rights would impose a duty on the State to ensure the progressive realisation of a range of additional rights.
Commissioners are clear, however, that whichever approach is adopted, this part of the Bill of Rights should be made expressly applicable to the operations of the Northern Ireland Assembly and Executive. This is because the devolved Northern Ireland
 

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Assembly, when it is sitting, has responsibility for many social, economic and environmental matters. If local institutions are to be the principal bodies which will be obliged to deliver these rights, this will help to defuse any opposition at Westminster to one part of the United Kingdom being granted rights which other parts do not have.
The new section on this area of rights could therefore read as follows.
Version 1
Section 15 Social, economic and environmental rights
(1) Everyone has the right to access to health care.
(2) Everyone has the right to be protected against destitution.
(3) Everyone has the right to shelter.
(4) Everyone has the right to engage in work.
(5) Everyone has the right to be protected against a dangerous environment.
These minimum rights are those which are now recognised as such by the UN’s Committee on Economic, Social and Cultural Rights. For a country as wealthy as the United Kingdom there can be no excuse based on resources for not making these rights available to everyone in society and therefore it is appropriate for anyone who is denied the rights to be able to go to court to seek a remedy. There will always be arguments over the exact meaning to be given even to these minimum rights (e.g. what constitutes acceptable “access to health care”, what amounts to “destitution”, what kind of “shelter” is the very least that must be made available, what is a “dangerous” environment, etc.), but there is scope for interpretation in every section in every Bill of Rights.
Guidance on how to solve such problems, if not actual solutions, can be obtained from the interpretation section in the Bill of Rights (see Section 1 at page 21 above). For example, “the right to engage in work” in section 15(4) would be interpreted in the light of the interpretation given to the same right set out in Article 15(1) of the EU’s Charter of Fundamental Rights, as well as in the light of the interpretation given to “the right to work” in the International Covenant on Economic, Social and Cultural Rights and the European Social Charter. This would make it clear that it does not necessarily amount to a right to paid employment; it is more in the nature of a right not to be unjustly prevented from working.
 

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Version 2
Section 15 Social, economic and environmental rights
(1) Duties on public bodies
(a) All public bodies through which any of the legislative, executive or judicial powers of the State are exercised in Northern Ireland (in particular the Northern Ireland Executive and Northern Ireland Assembly) shall take legislative or other measures, and shall allocate the necessary resources, to ensure the progressive achievement of the rights in this section.
(b) The Northern Ireland Executive or, if the Executive is not in place at the time, the Northern Ireland Office, shall report annually to the Northern Ireland Assembly or, if the Assembly is not in place at the time, to Parliament at Westminster, on the progress made during the previous year in realising the rights in this section.
(2) The right to health care
(a) Everyone has the right to the highest attainable standard of physical and mental health and well-being.
(b) Everyone has the right to have equal and free access to sexual and reproductive health care and to information and education relating to sexual and reproductive matters at all levels, free of coercion, discrimination or violence.
(c) The State shall take all reasonable steps to promote good health and well-being, and to ensure adequate prevention and treatment of ill-health. The State shall take appropriate measures to address health problems specific to children and to promote the health and health care of children.
(3) The right to an adequate standard of living
(a) Everyone is entitled to an adequate standard of living sufficient for that person and those dependent upon him or her.
(b) Everyone has the right to social care and support in accordance with their needs.
(4) The right to housing
(a) Everyone has the right to adequate accommodation appropriate to their needs.

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(b) Everyone is entitled to be secure in their occupancy of their home.
(5) The right to work
(a) Everyone has the right to contribute to the social and economic life of society, including the right of access to work and the right to choose and practise a trade or profession.
(b) The State shall take measures to provide for, support and encourage the continuous development of the skills, knowledge and understanding that are essential for employability and fulfilment.
(c) Everyone has the right to just and favourable conditions of work.
(6) The right to a healthy and sustainable environment
(a) Everyone has the right to a healthy, safe and sustainable environment.
(b) The State has a duty to provide accurate and timely information and to consult on, and foster participation in, planning and decision-making on matters which concern the environment.
Section 15(1)(a) places unequivocal duties on public bodies to realise in a progressive manner for the people of Northern Ireland a range of social, economic and environmental rights. Any failure by a state body to meet its obligations to respect, protect and fulfil such rights could of course be challenged, as at present, through administrative means such as ombudsman or complaints services, or bodies like the Northern Ireland Human Rights Commission, but these may not always be able to provide a proper remedy. Just as civil and political rights can be asserted through the courts, the courts should also be able to hold public bodies accountable in respect of other categories of human rights. This does not mean giving courts new powers to allocate resources that should properly belong with the legislature. Although the courts already make many decisions that impact on resources, this section of the Bill of Rights would allow them to review only whether the State was making a proper effort to secure basic rights. Presuming that any requirement of “standing” were to be satisfied, court proceedings could be taken challenging the failure of the relevant public body to deliver these rights (see also section 18 at page 83 below).
The Commission has in mind an enforcement procedure similar to that which operates in South Africa, where the Constitutional Court can consider applications claiming that a national or provincial government has failed to protect social and economic rights. In such proceedings the Constitutional Court does not itself say what the Government’s policy on the matter in question should be – that would be to breach the important principle of maintaining a separation between the powers of the Government and the powers of the judges. Instead it assesses what the Government is doing to see whether in all the circumstances (including the availability of resources and the needs of the
 

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applicants or of the people they are representing) it is “reasonable”. If it is deemed not to be reasonable the Constitutional Court can say so and can give the Government a certain period of time within which to come up with a new policy which is reasonable.
Section 15(1)(b) makes provision for indirect enforcement of the duties in section 15 (1)(a) by requiring an annual progress report to be made on the delivery of the rights in this section. If progress is not apparent there will presumably be a political price to be paid by those responsible, but the information supplied will also be of significant use to individuals or groups who wish to take proceedings in court alleging a breach of section 15(1)(a). This proposed reporting mechanism is comparable to that imposed by statute on the Human Rights Commission in South Africa: its annual reports to Parliament on the protection of social and economic rights in the country attract much publicity and can be influential in promoting change. Further legislation could specify the precise workings of the mechanism envisaged by section 15(1)(b).
The right to physical and mental health is recognised in numerous international instruments and has been described by the UN Committee on Economic, Social and Cultural Rights as “indispensable for the exercise of other human rights” (in its General Comment No.14). Of course the right to health also depends in part on other rights to, for example, housing, education, non-discrimination, information and freedom from inhuman or degrading treatment. It is not an individual right to be healthy, but a set of freedoms, such as the right to control one’s body, and a set of entitlements to the facilities, goods, services and conditions needed to protect health.
Section 15(2) protects the right to health care while also imposing a duty on the State to promote good health. That includes obligations on the State to make good-quality health care available, accessible and affordable for everyone; to protect healthy natural and workplace environments, to provide health information and to prevent disease. The Commission has inserted at this point a specific duty to take measures to address children’s health issues. This was previously included in the section dealing with children’s rights. An earlier proposal to create a right to be consulted about one’s health is, in the Commission’s view, better left to the details of specific legislation on health care or on information rights.
Section 15(3) and 15(5) reflect what is said in the International Covenant on Economic, Social and Cultural Rights, in the European Social Charter and in the EU’s Charter of Fundamental Rights about standard of living and the right to work. In section 15(3)(b) the Commission intends to establish the right to social welfare provision, such as disability, unemployment and retirement benefits, as well as caring services such as social work and provision of nursing care or other practical support as required.
The right to housing set out in section 15(4) goes beyond the bare minimum “right to shelter” offered in Version 1 above. It is intended to reflect the right of everyone, regardless of age, economic status, group or other affiliation, to live in security, peace and dignity in housing that is “adequate” in terms of, for example, privacy, accessibility, space, infrastructure, location and basic facilities, at reasonable cost. This right is
 

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asserted in a number of international instruments, notably in Article 11(1) of the UN Covenant, and the elements making up the right are discussed in General Comment No.4 of the UN Committee on Economic, Social and Cultural Rights.
Section 15(4)(a) reflects that Committee’s view that adequacy also includes cultural diversity and appropriateness, and would mean, amongst other things, that Travellers would have a right to the accommodation suitable to their specific needs, such as halting sites for their caravans. Section 15(4)(b) enshrines the Covenant principle (from Articles 11(1) and 2(1)) that whatever the type of tenure – owner occupation, public-sector or private rental, or other – all persons are entitled to legal protection against forced eviction, harassment and other threats.
The rights set out in section 15(5) are those already recognised by the United Kingdom in, for example, the European Social Charter and various standards of the International Labour Organisation. They are also partly reflected in the EU’s Charter of Fundamental Rights.
Section 15(6) again adopts ideas and language used in the EU’s Charter of Fundamental Rights, although there they apply only to the EU’s own obligations. The Commission’s proposals for 15(6)(b) are intended to enhance participation in, and democratic control over, the planning process.
Other proposals on social, economic and environmental rights in the Commission’s 2001 document are covered by the new text above or in other sections of the proposed Bill. Again, the Commission would be happy to discuss any suggestions for further changes.
Version 3
This version would amalgamate versions 1 and 2 so that there would be a set of minimum rights enforceable through the courts as well as a range of additional rights which are to be progressively realised. No additional commentary is required.
 

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SECTION 16
LIMITATIONS
The 2001 consultation document contained a clause allowing in general terms for rights to be limited, even though the stated preference of the Commission at that time was for more specific limitation clauses to be inserted as and where appropriate in the clauses of the Bill.
In fact, after its consideration of the points made in the submissions on these proposals, the Commission has decided to retain a general limitation provision, with only minor changes to the wording formerly proposed. Commissioners are no longer of the view that specific limitations should be provided for the various rights which supplement the European Convention rights, partly because the insertion of specific limitations would unduly lengthen the Bill but also because they prefer attention to be focused on the rationale for proposed limitations rather than on their precise extent. This will ensure greater consistency across the board in the way in which the supplementary rights are limited.
Section 16 Limitations
The rights contained in sections 2 to 15 of this Bill of Rights may be limited only to the extent that the limitation is prescribed by law, necessary in an open and democratic society based on human dignity, equality and freedom, and compatible with international human rights conventions to which the State is a party, taking into account all relevant factors including:
(a) the nature of the right,
(b) the importance of the purpose of the limitation,
(c) the nature and extent of the limitation,
(d) the relation between the limitation and its purpose, and
(e) less restrictive means to achieve the purpose.
The section deals only with rights other than those in the European Convention since it would be a breach of that Convention to authorise limitations to rights which are not authorised by the Convention itself.
The words “compatible with international human rights conventions to which the State is a party” protect against arbitrary limitations being enacted which could undermine existing international obligations.
 

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SECTION 17
EMERGENCIES
The proposals in the 2001 consultation document provided for rights to be restricted in situations of emergency but stipulated that certain conditions would have to be satisfied before “emergency” laws could be passed. The objective of an “emergencies clause” is to make it difficult to enact special laws that may breach people’s human rights. Relevant Articles of the European Convention on Human Rights were included in these provisions (Articles 15, 17 and 18), but these have now been included in the general section on Convention rights (see Section 20 at page 87 below).
Section 17 Emergencies
(1) No derogation from the Bill of Rights for Northern Ireland shall be lawful unless a state of emergency has been declared prior to the derogation.
(2) A state of emergency in Northern Ireland may be declared only by the United Kingdom Parliament and only after that Parliament or, by way of a cross-community vote, the Northern Ireland Assembly has passed a resolution that –
(a) the life of the people of Northern Ireland is seriously threatened by war, invasion, general insurrection, natural disaster, or other public emergency; and
(1) (b) a declaration of a state of emergency is strictly required by the exigencies of the situation.
(3) A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, is effective only:
(a) prospectively from the date of the declaration; and
(b) for no more than three months from the date of the declaration, unless the declaration is extended.
(4) Any extension of a state of emergency can be valid for no longer than three months and must be declared in the same manner as the original state of emergency.
(5) A state of emergency will be deemed to cease to exist if a resolution calling for it to end is passed in the United Kingdom Parliament.
(6) On an application from any interested person, a competent court may decide on the validity of:
 

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(a) a declaration of a state of emergency;
(b) a declaration of the extension of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency or of an extension of a state of emergency.
(7) No declaration of a state of emergency or of an extension of a state of emergency, and no legislation enacted or other action taken in consequence thereof, may permit:
(a) indemnifying the state, or any person, in respect of any unlawful act; or
(b) any derogation from this section.
Section 17(1) does not make any of the supplementary rights conferred by the Bill of Rights non-derogable, but it stipulates that before a derogation occurs regarding any of the rights in the Bill (including the Convention rights in section 19) a state of emergency has to be declared. It is impossible in a legal system such as the United Kingdom’s, where the doctrine of Parliamentary sovereignty is the basic constitutional principle, to prevent the enactment of laws which would require derogations from international human rights treaties. Each of the main international human rights treaties by which the United Kingdom and Ireland are bound specifically permit derogations in prescribed circumstances. But the law of the land, and especially a Bill of Rights, can ensure that there are effective safeguards to prevent an unjustified resort to emergency powers.
Section 17(2) makes it clear that a resolution of the Northern Ireland Assembly (if it is not suspended at the time) is a sufficient but not a necessary condition for the declaration of a state of emergency. Exactly what form the cross-community vote should take in the Northern Ireland Assembly is a matter that can be left to specific legislation. It is customary for the central Parliament of a nation to be responsible for the declaring of a state of emergency, even if it relates to only a part of the State. The Acts of Parliament devolving power to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly all make it clear that enacting emergency laws is a matter reserved to the Westminster Parliament, although in the case of Northern Ireland it is a power which could in time be devolved to the local Assembly (as it was to the old Parliament of Northern Ireland). The Civil Contingencies Bill currently before Parliament would require consultation with devolved administrations before certain emergency measures are taken.
Section 17(3)(b) makes the maximum length of a state of emergency three months. In the Commission’s 2001 proposals the maximum length was just 21 days. The Commission now considers such a short period to be impracticable given the requirements that have to be met before a declaration is extended. As a counter-weight, however, the Commission
 

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has inserted section 17(5), which allows for a method of terminating a state of emergency before its validity has expired through passing of time.
The Westminster Parliament is currently considering a draft Civil Contingencies Act, which would allow a range of steps to be taken in an emergency if certain conditions were satisfied. The Bill has already been extensively criticised by the Parliamentary Joint Committee on Human Rights and by the House of Commons Select Committee on Home Affairs. It remains to be seen what form the Bill will eventually take and what changes will need to be made to the proposed Bill of Rights for Northern Ireland to take account of the Civil Contingencies Act.
 

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SECTION 18
ENFORCEMENT
By and large the Commission has preferred to retain the provisions on enforcement put forward in its 2001 consultation document. However it has added two provisions (sections 18(1) and (2)) to make more clear who will be obliged to comply with the Bill of Rights. The proposed provisions are therefore as follows:
Section 18
(1) The state must respect, protect, promote and fulfil the rights in this Bill of Rights.
(2) A provision of this Bill of Rights binds persons and bodies other than the State if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
(3) Any person or body who has a legitimate interest in the matter may bring proceedings concerning the alleged breach of any provision in this Bill of Rights.
(4) Courts shall grant to any person or body whose rights and freedoms under this Bill of Rights have been or may be violated an effective remedy such as they consider just and appropriate.
(5) Legislation may be referred to the courts for a decision as to whether it is at that time compatible with this Bill of Rights.
Section 18(1) is the same as section 7(2) of South Africa’s Bill of Rights. It makes it clear that the primary obligation to adhere to the Bill of Rights is the State’s. The duty to respect rights means that the State must not interfere with the exercise of anyone’s rights; the duty to protect rights means that the State must prevent other people and bodies from violating anyone else’s rights; the duty to promote rights means that the State must take active steps to ensure that people’s rights are known about; and the duty to fulfil rights means that the State must take positive steps to comply with its own duties to accord people their rights. The Constitutional Court of South Africa has often drawn attention to the distinction between these four different ways of enforcing a Bill of Rights and the Council of Europe experts who visited the Commission in October 2003 did likewise.
Section 18(2) is very similar to section 8(2) of South Africa’s Bill of Rights. It means that the Bill of Rights for Northern Ireland would have to be adhered to not just by the State but by other persons and bodies as well – not in every situation, but only when the nature of the right in question, and of any duty which the right presupposes, makes it appropriate. When exactly this would be so would depend on the decisions taken by the
 

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courts. It could mean, for example, that a person’s right to the protection of personal data must be adhered to by all other persons, whereas a person’s right to an effective and appropriate education creates a duty only on the State. To this extent, therefore, the Bill of Rights for Northern Ireland would have what lawyers call a horizontal application as well as a vertical application. The Commission would particularly welcome views on the merits of including such a sub-section in the Bill of Rights.
Section 18(3) follows logically from the first two sub-sections in that it addresses who can enforce the Bill of Rights whereas the first two sub-sections address whom the Bill of Rights can be enforced against.
Section 18(4) ensures that a very wide variety of remedies, such as compensation, an injunction or a declaration, can be granted to anyone who successfully argues that their rights under the Bill of Rights have been violated.
Section 18(5) ensures that the compatibility of all legislation, whether already enacted by the Stormont Assembly or the Westminster Parliament, can be considered by the courts. The Bill of Rights does not prescribe what remedy should be available if the legislation is declared incompatible with the Bill of Rights, but anyone whose rights under the Bill of Rights have been violated by such incompatible legislation could seek an effective remedy under section 18(4).
The Commission’s view at present is that all existing courts in the legal system of Northern Ireland (including the proposed new Supreme Court of the United Kingdom) should be obliged to apply the Bill of Rights and that the system for appointing and training judges should be reformed to ensure that those appointed in Northern Ireland are committed to the obligations imposed on them by the Bill of Rights. The Commission does not think that a strong enough case has yet been made for creating a new Human Rights Court, or some such body, to help enforce the Bill of Rights. The Commission acknowledges that a new court could be an important symbol of a new start in human rights, and that such a court could take a variety of forms. Special assessors could be appointed to assist the usual judges in Bill of Rights cases, or the judges could be required to consider the opinion of the Northern Ireland Human Rights Commission in such cases. However, before accepting that these arguments outweigh those in favour of the “mainstreaming” approach adopted above, the Commission needs to receive further submissions on how exactly such a new court would function.
 

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SECTION 19
AMENDMENTS
The Commission’s 2001 consultation document discussed the topic of amendment alongside that of entrenchment, and put both topics at the very end of the proposed Bill. The Commission now believes that the Bill itself does not need to make any provision for how it should, as a whole, be adopted. The method used is essentially a political matter. The Commission’s view is that the Bill of Rights should be adopted through an international treaty, a referendum, an Act at Westminster and a resolution of the Northern Ireland Assembly (if the Assembly is not suspended at the time).
The Commission is in favour of the Bill of Rights containing a brief section on amendment worded thus:
Section 19 Amendments
No amendment shall be made to this Bill of Rights without the consent of the Northern Ireland Assembly in a resolution adopted by a cross-community vote or (if the Assembly is suspended) without the support of a weighted majority as expressed in a referendum in Northern Ireland.

This provision does not specify how, otherwise, an amendment is to be made to the Bill of Rights. It merely sets one precondition for any such amendment. And it does not say what exactly is meant by a cross-community vote or a weighted majority. Those are details which can be dealt with by subsequent legislation. Obviously it should not be too easy to amend a Bill of Rights, since it is meant to contain fundamental protections.
If existing constitutional practice were to be followed, an amendment to the Bill of Rights, as an Act of the Westminster Parliament, would require a further piece of primary legislation to be passed at Westminster, or at the very least an Order in Council. Because of the possible involvement of the Irish Government in the initial adoption of the Bill of Rights through an international treaty, the views of the Irish Government on any proposed amendment should also be taken into account by the United Kingdom Government before any vote were to occur in the United Kingdom Parliament, and it would be wise if, were the amendment to be agreed at Westminster, the international treaty between the United Kingdom and Ireland which initially approved the proposed Bill of Rights were amended too.
The Human Rights Commission thinks it is not necessary for each and every proposed amendment to the Bill of Rights to be put to the people of Northern Ireland in a referendum. However this should be an available option at times when the Northern Ireland Assembly is suspended whenever an amendment is proposed.
 

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SECTION 20
SHORT TITLE AND EUROPEAN CONVENTION RIGHTS
The Belfast (Good Friday) Agreement says that the Bill of Rights for Northern Ireland is to consist of the European Convention on Human Rights together with supplementary rights which reflect the particular circumstances of Northern Ireland. This would seem to suggest that, when the Human Rights Commission is giving its final advice to the Secretary of State on what rights should be contained in a Bill of Rights, it cannot in any way lessen the rights contained in the European Convention. Certainly it could not do so without creating a breach of the Convention itself. The Commission can only add to the Convention rights. What, then, are those rights?
The European Convention on Human Rights
The European Convention on Human Rights is a treaty agreed in 1950 by a number of European States which were members of the Council of Europe at the time. The Council of Europe was not the same as the Common Market, later known as the European Community and, now, as the European Union. The Council of Europe is an older and larger organisation comprising, at present, 45 European States.
In 1951 the United Kingdom became the first country to “ratify” the European Convention, i.e. to agree to be bound by it. Today all member States of the Council of Europe are bound by it. This means that each one of these States can be taken to court by any person who is in that State (regardless of whether the person is a citizen of that State) and who believes that the State has breached one or more of his or her rights as listed in the Convention. Initially such cases have to be heard by the courts within the State in question, but if the courts there do not hold in favour of the person who is suing then he or she can make an application to have the case heard by the European Court of Human Rights in Strasbourg. These days about 750 decisions are issued by that Court every year. They include a number taken against the United Kingdom, a few of which will be taken by people living in Northern Ireland.
The rights contained in the European Convention are set out in Articles 2 to 18 of the Convention. However it is only since 2 October 2000 that people in the United Kingdom have been able to go to a local court to claim that their rights in the Convention have been breached. That is the date on which the Human Rights Act, passed at Westminster in 1998, came into force. Before then courts within the United Kingdom could not consider claims based on the Convention but anyone who felt that his or her rights had not been upheld by the local courts could still apply to have their case heard by the European Court. In the Republic of Ireland, by virtue of the European Convention on Human Rights Act 2003, people have been able to rely on Convention rights in local courts since 1 January 2004.
 

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The Commission is currently of the view that it is neither necessary nor desirable to repeal the Human Rights Act as it applies in Northern Ireland and to replace it entirely with a Bill of Rights for Northern Ireland Act. Rather the Commission prefers to supplement the Human Rights Act by a Bill of Rights for Northern Ireland Act. The provisions of the latter dealing with interpretation (Section 1), limitations (Section 16) and enforcement (Section 18), would prevail over any analogous provisions in the former on the principle that provisions on matters dealt with by a specific law always take precedence over provisions on matters dealt with by a more general law. But other provisions in the Human Rights Act to which there is no analogous provision in the Bill of Rights for Northern Ireland Act (e.g. section 4 on declarations of incompatibility and section 6 on acts of public authorities) would continue to apply. The Commission will give further consideration to the legal technicalities arising from the co-existence of the two Acts.

The Protocols to the European Convention on Human Rights
The European Convention has itself already been supplemented by further treaties drawn up by the Council of Europe. These additional treaties are called Protocols. Of the 12 Protocols which have so far been drawn up, five of them (Protocols 1, 4, 6, 7 and 12) contain further rights (the others deal with what may be called procedural issues). One question which immediately arises is whether the Belfast (Good Friday) Agreement, when it refers to the European Convention, means only the treaty of 1950 or also the various later Protocols. In legal circles the tradition is to use the term “European Convention” to mean both the 1950 treaty and the Protocols, and the Human Rights Act 1998, when it sets out the “Convention rights” which are now enforceable through local courts, includes not just the rights contained in the 1950 treaty but also the rights contained in the two additional Protocols which the United Kingdom has already ratified (Protocols 1 and 6).
Convention rights included in the Human Rights Act 1998
The full set of Convention rights as set out in Schedule 1 to the Human Rights Act is as follows (for the full text of the relevant Articles see Appendix 3 at page 135 below):
Article 2 Right to life
Article 3 Prohibition of torture
Article 4 Prohibition of slavery and forced labour
Article 5 Right to liberty and security
Article 6 Right to a fair trial
Article 7 No punishment without law
Article 8 Right to respect for private and family life
Article 9 Freedom of thought, conscience and religion
Article 10 Freedom of expression
Article 11 Freedom of assembly and association
Article 12 Right to marry
Article 14 Prohibition of discrimination
 

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Article 16 Restrictions on political activities of aliens
Article 17 Prohibition of abuse of rights
Article 18 Limitation on use of restrictions on rights
Protocol 1, Article 1 Protection of property
Protocol 1, Article 2 Right to education
Protocol 1, Article 3 Right to free elections
Protocol 6, Article 1 Abolition of the death penalty
Protocol 6, Article 2 Death penalty in time of war
Article 13 of the Convention was excluded from the Human Rights Act because the Government believed that other provisions in the Act provided the effective remedy which Article 13 calls for. Article 15, which deals with derogations, was not included in the Act as a Convention right but was assumed to be binding within the United Kingdom by section 14 of the Human Rights Act.
Convention rights not included in the Human Rights Act 1998
The Convention rights which are not yet part of the law of Northern Ireland, because they are not included in the list set out in the Human Rights Act 1998, are the following (again, for the full text see Appendix 3 at page 135 below). They are contained in Protocols to the Convention which the United Kingdom Government has not yet ratified.
Protocol 4, Article 1 Prohibition of imprisonment for debt
Protocol 4, Article 2 Freedom of movement
Protocol 4, Article 3 Prohibition of expulsion of nationals
Protocol 7, Article 1 Procedural safeguards relating to expulsion of aliens
Protocol 7, Article 2 The right of appeal in criminal matters
Protocol 7, Article 3 Compensation for wrongful convictions
Protocol 7, Article 4 The right not to be tried or punished twice
Protocol 7, Article 5 Equality between spouses
Protocol 12 The right to freedom from discrimination in respect of
all rights
The Commission’s 2001 approach to Convention rights
In its 2001 consultation document on a Bill of Rights the Commission inserted the wording of the Convention Articles included in the Human Rights Act into the appropriate clauses of the proposed Bill. It listed the other Convention rights – those not protected by the Human Rights Act – in an Appendix and said that it would prefer these too to be made part of the law of Northern Ireland.
 

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The Commission’s approach in 2004
For the current progress report the Commission has preferred to adopt a different approach. Rather than try to meld the wording of the Convention rights, whether already protected by the Human Rights Act or not, with the wording of the supplementary rights which it is proposing for Northern Ireland, the Commission has focused exclusively on the wording of the proposed supplementary rights. An exception is the Commission’s general anti-discrimination provision (see Section 4(3) at page 38 above), where, for ease of comprehension, the wording of Article 14 of the European Convention has been incorporated.
The Commission has left a few of the Convention rights un-supplemented. This is the case for the rights protected by Articles 7, 9, 10 and 11 of the Convention and by Articles 1 of Protocols 1 and 6. Thus, for example, the Commission is not recommending any supplementary rights in the fields of freedom of religion, freedom of expression or freedom of assembly.
The Commission is now proposing that a piece of legislation be presented to Parliament called the Bill of Rights for Northern Ireland Act. As well as containing sections reflecting the various supplementary rights recommended by the Commission (see the Preamble and Sections 1 to 19 above), the proposed legislation should contain a section providing that all the rights protected by the European Convention on Human Rights (including the Protocols to that Convention) are to form a part of the Bill of Rights. For ease of reference two Schedules to the Act should set out the text of the rights in question.
The proposed section is as follows:
Section 20 Short title and European Convention rights
(1) This Act may be cited as the Bill of Rights for Northern Ireland Act 2004.
(2) The Convention rights set out in Schedule 1 to this Act shall be considered a part of the Bill of Rights for Northern Ireland.
(3) The other rights protected by the European Convention on Human Rights and the Protocols thereto set out in Schedule 2 to this Act shall be considered a part of the Bill of Rights for Northern Ireland.
The Commission is clear, however, that all of the rights in the proposed Bill of Rights, whether they are rights set out in the European Convention and its Protocols or supplementary rights, should be interpreted, limited and enforced in the same way (see Sections 1, 16 and 18).
The Commission hopes that this approach to Convention rights makes it adequately clear that in its recommendations for a Bill of Rights the Commission is trying to build upon
 

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the existing European Convention on Human Rights and its Protocols. The Commission would welcome views on whether this approach to the treatment of the Convention rights is sound.
 

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APPENDIX 1
The proposed Bill of Rights for Northern Ireland Act 2004
This Appendix brings together all the proposals made earlier in this progress report.
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.
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.
 

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(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.
(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.
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 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.
 

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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
(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
 

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(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 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.
(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 group and shall not constitute discrimination.
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;
 

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(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.
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).
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 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, and the solicitor must, so far as this is reasonably practicable, be a person chosen by the arrested person.
(3) Everyone who is detained has the right to inform a relative or friend without unreasonable delay that he or she is being detained and where this is occurring.
(4) Everyone who is detained 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, subject to reasonable conditions and restrictions as specified by law.
 

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(5) Everyone who is detained 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.
(6) Every child who is detained 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.
(7) 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.
(8) 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.
(9) 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.
(10) Everyone who is detained has the right to be charged or to be released within 24 hours unless a court orders an extension to the detention.
(11) 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.
(12) Everyone has the right to be informed immediately upon arrest of his or her rights as an arrested person in a language and manner which he or she understands.
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
 

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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) 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.
(5) The State shall take appropriate steps to ascertain any particular vulnerability of individuals who have been arrested, remanded or charged with a criminal offence. The State shall take effective measures to protect the right to a fair trial of identified vulnerable people.
(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 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.
 

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(12) The State shall take effective measures to ensure that favourable conditions are created for the reintegration of ex-prisoners into society.
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.
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;
(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.
 

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(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 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.
Section 12 The rights of children
(1) (a) For the purposes of this Bill of Rights, a child means everyone below the age of 18 years.
(b) In all actions concerning children, whether undertaken by public or private institutions, individuals or bodies, courts of law, administrative or legislative authorities, the best interests of the child shall be the paramount consideration.
 

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(c) Public bodies shall carry out their functions in relation to children in accordance with the provisions of the UN’s Convention on the Rights of the Child.
(2) Every child has the right to participate effectively, either directly or indirectly through an independent representative, in all proceedings affecting him or her, whether administrative or judicial, in public or private law. Every child has the right of access to the law and to legal representation.
(3) (a) The State shall provide adequate support and assistance to parents and other primary carers to enable every child in so far as is possible to grow up in a safe family environment.
(b) Every child who is denied a safe family environment is entitled to special protection and support from the State in the best interests of the child within a reasonable time.
(c) Every child who is separated from one or more parents or otherwise deprived of his or her family environment has the right to maintain personal relations and direct or indirect contact with any parent or family member except where it is contrary to his or her best interests.
(d) Children leaving care shall be prepared for and supported in the transition from care to independent living. The State’s obligation to protect and support shall end only when it is no longer required.
(4) The age at which a person can be held criminally responsible shall be
not less than 12 years.
(5) Every child living with a disability has the right to the greatest extent possible to enjoy an independent and fulfilling life in conditions which ensure dignity, promote self-reliance and facilitate his or her active participation in the community. He or she has the right to special care and assistance, to assessment and appropriate services, and to effective education, which allows the child, to the greatest extent possible, to maximise his or her potential for personal development, independence and social inclusion.
(6) The State shall take appropriate measures to ensure that the rights of children are widely known.
Section 13 Education rights
(1) Everyone has the right to an effective and appropriate education which is to the greatest extent possible directed towards the full development of the
 

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person, including his or her talents, mental and physical abilities and sense of dignity and which enables all persons to participate effectively in the life of the community.
(2) The State shall ensure the right of parents to choose for their children education in schools with a particular religious ethos, education in integrated schools, education in Irish-medium schools or education specialising in the needs of children with disabilities, bearing in mind the best interests of the child and the competence of the child to decide for him- or herself in accordance with his or her age, maturity and understanding.
(3) The State shall provide financial and other support on an equitable and transparent basis to all schools established in accordance with need and with sub-sections (1) or (2) above, subject to reasonable requirements, including minimum numbers of pupils in any area and without prejudice to the need to redress inequalities.
(4) No individual shall be denied admission to any educational establishment receiving state funding on any of the grounds specified in section 4(3) of this Act.
(5) The State shall take appropriate measures to ensure that the education rights and needs of all children are respected, especially children with disabilities, pregnant children, children in care, children in juvenile justice centres and children of other disadvantaged groups.
(6) The State shall ensure that education in all its forms shall be directed to the promotion of human rights, equality, dignity of the person, respect for diversity and tolerance.
Section 14 Language rights
(1) In Northern Ireland English and Irish shall be official languages.
or:
In Northern Ireland English shall be the first official language and Irish shall be the second official language. Legislation shall be enacted to prescribe the situations in which the second official language can be used.
or:
Legislation shall be enacted to prescribe the situations in which people have the right to use the language of their choice.
 

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(2) Everyone has the right to communicate with any public body through an interpreter, translator or facilitator when this is necessary for the purposes of accessing, in a language that he or she understands, information or services essential to his or her life, health or security. In this context “language” includes sign language and other forms of communication.
(3) Without prejudice to sub-sections (1) and (2) above, members of linguistic communities in Northern Ireland shall have the right to:
(a) the promotion of conditions necessary to maintain and develop their language;
(b) use their language in dealings with public bodies, where there is sufficient demand and a real need;
(c) display signs and other information in their language;
(d) display local street and other place names in their language; and
(e) to be educated in and through their language, where there are substantial numbers of users and sufficient demand.
(4) Without prejudice to sub-sections (1), (2) and (3) above, in relation to the Irish language and Ulster-Scots legislation shall be enacted to implement the commitments made under the Belfast (Good Friday) Agreement and the European Charter for Regional or Minority Languages.
Section 15 Social, economic and environmental rights
Version 1
(1) Everyone has the right to access to health care.
(2) Everyone has the right to be protected against destitution.
(3) Everyone has the right to shelter.
(4) Everyone has the right to work.
(5) Everyone has the right to be protected against a dangerous environment.
Version 2
(1) Duties on public bodies
 

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(a) All public bodies through which any of the legislative, executive or judicial powers of the State are exercised in Northern Ireland (in particular the Northern Ireland Executive and Northern Ireland Assembly) shall take legislative or other measures, and shall allocate the necessary resources, to ensure the progressive achievement of the rights in this section.
(b) The Northern Ireland Executive or, if the Executive is not in place at the time, the Northern Ireland Office, shall report annually to the Northern Ireland Assembly or, if the Assembly is not in place at the time, to Parliament at Westminster, on the progress made during the previous year in realising the rights in this section.
(2) The right to health care
(a) Everyone has the right to the highest attainable standard of physical and mental health and well-being.
(b) Everyone has the right to have equal and free access to sexual and reproductive health care and to information and education relating to sexual and reproductive matters at all levels, free of coercion, discrimination or violence.
(c) The State shall take all reasonable steps to promote good health and well-being, and to ensure adequate prevention and treatment of ill-health. The State shall take appropriate measures to address health problems specific to children and to promote the health and health care of children.
(3) The right to an adequate standard of living
(a) Everyone is entitled to an adequate standard of living sufficient for that person and those dependent upon him or her.
(b) Everyone has the right to social care and support in accordance with their needs.
(4) The right to housing
(a) Everyone has the right to adequate accommodation appropriate to their needs.
(b) Everyone is entitled to be secure in their occupancy of their home.
(5) The right to work
 

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(a) Everyone has the right to contribute to the social and economic life of society, including the right of access to work and the right to choose and practise a trade or profession.
(b) The State shall take measures to provide for, support and encourage the continuous development of the skills, knowledge and understanding that are essential for employability and fulfilment.
(c) Everyone has the right to just and favourable conditions of work.
(6) The right to a healthy and sustainable environment
(a) Everyone has the right to a healthy, safe and sustainable environment.
(b) The State has a duty to provide accurate and timely information and to consult on, and foster participation in, planning and decision-making on matters which concern the environment.
Version 3
This version would amalgamate versions 1 and 2.
Section 16 Limitations
The rights contained in sections 2 to 15 of this Bill of Rights may be limited only to the extent that the limitation is prescribed by law, necessary in an open and democratic society based on human dignity, equality and freedom, and compatible with international human rights conventions to which the State is a party, taking into account all relevant factors including:
(a) the nature of the right,
(b) the importance of the purpose of the limitation,
(c) the nature and extent of the limitation,
(d) the relation between the limitation and its purpose, and
(e) less restrictive means to achieve the purpose.
Section 17 Emergencies
(1) No derogation from the Bill of Rights for Northern Ireland shall be lawful unless a state of emergency has been declared prior to the derogation.
(2) A state of emergency in Northern Ireland may be declared only by the United Kingdom Parliament and only after that Parliament or, by way of
 

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a cross-community vote, the Northern Ireland Assembly has passed a resolution that –
(a) the life of the people of Northern Ireland is seriously threatened by war, invasion, general insurrection, natural disaster, or other public emergency; and
(b) a declaration of a state of emergency is strictly required by the exigencies of the situation.
(3) A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, is effective only:
(a) prospectively from the date of the declaration; and
(b) for no more than three months from the date of the declaration, unless the declaration is extended.
(4) Any extension of a state of emergency can be valid for no longer than three months and must be declared in the same manner as the original state of emergency.
(5) A state of emergency will be deemed to cease to exist if a resolution calling for it to end is passed in the United Kingdom Parliament.
(6) On an application from any interested person, a competent court may decide on the validity of:
(a) a declaration of a state of emergency;
(b) a declaration of the extension of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency or of an extension of a state of emergency.
(7) No declaration of a state of emergency or of an extension of a state of emergency, and no legislation enacted or other action taken in consequence thereof, may permit:
(a) indemnifying the State, or any person, in respect of any unlawful act; or
(b) any derogation from this section.
 

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Section 18 Enforcement
(1) The State must respect, protect, promote and fulfil the rights in this Bill of Rights.
(2) A provision of this Bill of Rights binds persons and bodies other than the State if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
(3) Any person or body who has a legitimate interest in the matter may bring proceedings concerning the alleged breach of any provision in this Bill of Rights.
(4) Courts shall grant to any person or body whose rights and freedoms under this Bill of Rights have been or may be violated an effective remedy such as they consider just and appropriate.
(5) Legislation may be referred to the courts for a decision as to whether it is at that time compatible with this Bill of Rights.
Section 19 Amendments
No amendment shall be made to this Bill of Rights without the consent of the Northern Ireland Assembly in a resolution adopted by a cross-community vote or (if the Assembly is suspended) without the support of a weighted majority as expressed in a referendum in Northern Ireland.
Section 20 Short title and European Convention rights
(1) This Act shall be referred to as the Bill of Rights for Northern Ireland Act 2004.
(2) The Convention rights as set out in the Human Rights Act 1998 shall be considered a part of the Bill of Rights for Northern Ireland.
(3) The other rights protected by the European Convention on Human Rights and the Protocols thereto shall also be considered a part of the Bill of Rights for Northern Ireland.
 

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APPENDIX 2
The Commission’s 2001 proposals for a Bill of Rights for Northern Ireland
1. Preamble
The people of Northern Ireland
considering that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world;
realising that each individual in Northern Ireland, having duties to other individuals and to the community to which he or she belongs, is under a responsibility to strive for the promotion and observance of the rights recognised in the present Bill of Rights;
recognising that the tragedies of the past have left a deep and profoundly regrettable legacy of suffering and that those who have died or been injured, and their families, can best be honoured through a fresh start dedicated to the achievement of reconciliation, tolerance, mutual trust and the protection and vindication of the human rights of all;
building on the principles enshrined in the Belfast (Good Friday) Agreement,
namely:
a commitment to partnership, equality and mutual respect as the basis of relationships within Northern Ireland;
a total and absolute commitment to exclusively democratic and peaceful means of resolving differences on political issues and an opposition to any use or threat of force by others for any political purpose;,
an acknowledgement of the substantial differences between the competing and equally legitimate political aspirations in Northern Ireland and a commitment to strive in every practical way towards reconciliation and rapprochement within the framework of democratic and agreed arrangements; and
the better protection of the human rights of all men, women and children in Northern Ireland;
accepting therefore the need for a Bill of Rights building on the established protections under the European Convention on Human Rights, the European Union Charter of Fundamental Rights and other international human rights conventions, which will:
 

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reflect the particular circumstances of Northern Ireland;
guarantee the rights of both main communities and all other communities in Northern Ireland;
promote mutual tolerance and respect between all sections of the community; and
ensure the effective delivery of those rights to all people, including those suffering during the conflict and the most disadvantaged and vulnerable people in Northern Ireland;
have requested the adoption of the following Bill of Rights.
2. Democratic rights
(a) Elections
Article 3, Protocol 1 to the European Convention – Right to free elections
[1] The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
2. Elections to the European Parliament, the Westminster Parliament, the Northern Ireland Assembly and local government shall be by a system of proportional representation to be determined by legislation.
(b) Participation in government
1. Elected representatives shall be entitled to fair, full and effective participation in the governance of Northern Ireland.
2. The State shall take all appropriate measures to promote the right of women to fair, full and equal participation in public life, including participation in decision-making processes and access to power.
Article 16 – Restrictions on political activity of aliens
[3] Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.
(c) Electoral rights
 

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1. All persons aged 17 or over shall have the right to vote in elections to local and regional government bodies and referendums at local and regional level within Northern Ireland, provided that they satisfy the requirements of legislation as to residence or other local connection. All persons who are entitled to vote are also entitled to present themselves as candidates for election and to nominate, second or support candidates.
3. Rights concerning identity and communities
(a) The right to a national identity
1. Individuals born in Northern Ireland have the right to identify themselves and be accepted as Irish or British citizens, or both, as they may so choose.
(b) The rights of members of communities
1. Nothing in this section shall be used to negate equality commitments, including positive action provisions in the Bill of Rights or in legislation. [Nor shall anything in this section negate voting mechanisms designed to ensure representivity in political institutions and decision-making.]
2. Everyone belonging to a national, ethnic, religious or linguistic community shall have the right in common with other members of that community to enjoy his or her own culture, to profess and practise his or her own religion and to use his or her own language.
3. Everyone has the right to be nomadic or sedentary and a right to change from one mode of living to the other.
4. Everyone has the right freely to choose to be treated or not to be treated as a member of what might otherwise be perceived to be their national, ethnic, religious or linguistic community and no disadvantage shall result from this choice or from the exercise of the rights which are connected to this choice.
5. The Government and public bodies shall, without prejudice to existing legal requirements and to the positive action clause 4(8) of this Bill, adopt effective and appropriate measures to:
(a) promote equality in all areas of economic, social, cultural and political life among and between persons belonging to national, ethnic, religious or linguistic communities and the conditions necessary for them to maintain and develop their culture;
(b) preserve the essential elements of the identity of such persons, namely their religion, language, traditions and cultural heritage; and
 

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(a) promote tolerance, mutual respect, understanding and co-operation among all persons living in Northern Ireland, irrespective of their cultural, ethnic, religious or linguistic identity, in particular in the fields of education, culture and the media.
The following clause is offered as an alternative to clauses 2-4, above:
2. The Government and public bodies shall adopt effective and appropriate measures to ensure:
(a) mutual respect for all people in the diversity of their identities and traditions; and
(b) parity of esteem and just and equal treatment for the identity, ethos and aspirations of both communities; the programmatic standards in the Framework Convention shall provide a guide as to how this is to be achieved.
4. Equality and non-discrimination
Article 14 of the European Convention – Prohibition of discrimination
[1] The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. Everyone is equal before and under the law and has the right to equal protection and equal benefit of the law. Equality includes the full and equal access to and enjoyment of all rights and freedoms.
3. Equality between men and women must be ensured in all areas. The State shall take all necessary measures to promote the equal enjoyment, benefit and protection of all human rights and fundamental freedoms for women and girls.
4. Everyone has the right to be protected against any direct or indirect discrimination whatsoever on any ground (or combination of grounds) such as race or ethnic origin, nationality, colour, gender, marital or family status, residence, language, religion or belief, political or other opinion, possession of a criminal conviction, national or social origin, birth, disability, age, parentage, sexual orientation, status as a victim or any other status.
5. Direct discrimination shall be taken to occur when a person has suffered, will suffer or would suffer disadvantage on the basis of any of the grounds in clause 4 (the non-discrimination clause).
6. Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put any persons at a disadvantage by virtue of
 

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their status, as defined by clause 4(4) (the non-discrimination clause) and as limited by clause 4(9) (the exceptions clause).
7. Harassment or bullying shall be deemed to be a form of discrimination when unwanted conduct related to any of the grounds referred to in clause 4(4) (the non-discrimination clause) takes place with the purpose or effect of violating the physical integrity or dignity of a person, or of creating an intimidating, hostile, degrading, humiliating or offensive environment.
8. Laws, policies, programmes or activities aimed at achieving and sustaining full and effective equality, in particular by reducing inequalities affecting groups disadvantaged on the grounds specified in clause 4(4) (the non-discrimination clause) or on socio-economic grounds, and which may include specific measures for individuals from such groups, shall be required [or may be adopted]. Such laws, policies, programmes or activities shall not constitute unlawful discrimination.
9. A difference of treatment which is based on a characteristic related to any of the grounds referred to in the non-discrimination clause 4(4) 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. The rights of women
Equality between men and women:
see Clause 4(3):
Equality between men and women must be ensured in all areas. The State shall take all necessary measures to promote the equal enjoyment, benefit and protection of all human rights and fundamental freedoms for women and girls.
Right to reproductive health:
see Clause 14b(5)
Everyone has the right to have equal and free access to sexual and reproductive health care and to information and education relating to sexual and reproductive matters at all levels, free of coercion, discrimination or violence.
Freedom from gender-based violence:
see Clause 8c(1)
The State shall take all appropriate measures to prevent and eliminate all forms of violence against women and girls whether physical, mental or emotional.
 

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Right to fair, full and effective participation:
see Clause 2b(2)
The State shall take all appropriate measures to promote the right of women to fair, full and equal participation in public life, including participation in decision-making processes and access to power.
6. Rights to life, freedom from torture, inhuman or degrading treatment or
punishment, freedom from slavery and freedom from forced labour
(a) Article 2 of the European Convention – Right to life
[1] Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
[2] Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
3. 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.
Sixth Protocol, Article 1 – Abolition of the death penalty
[4] The death penalty shall be abolished. No one shall be condemned to such penalty or executed.
Sixth Protocol, Article 2 – Death penalty in time of war
[5] A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The
 

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State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.
(b) Article 3 of the European Convention – Freedom from torture, inhuman or degrading treatment or punishment
[1] No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
(c) Article 4 of the European Convention – Freedom from slavery or forced labour
[1] No one shall be held in slavery or servitude.
[2] No one shall be required to perform forced or compulsory labour.
[3] For the purpose of this Article the term “forced or compulsory labour” shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.
7. Criminal justice and administrative justice
(a) Article 5 of the European Convention – Right to liberty and security
[1] Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
 

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(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
[2] Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
[3] Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
[4] Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
[5] Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
6. No-one shall be detained solely on the ground that he or she is a member of one of the categories in Article 5(1)(e) of the European Convention on Human Rights.
7. Everyone has the right not to 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.
8. Everyone who is arrested has the right to consult privately, without unreasonable delay and if necessary at state expense, with a solicitor [of his or her choice] before being questioned by the police.
9. Everyone who is detained has the right to inform a relative or friend without unreasonable delay that he or she is being detained and where this is occurring.
10. Everyone who is detained 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, subject to reasonable conditions and restrictions as specified by law in accordance with Principle 19 of the UN’s Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment.
 

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11. Everyone who is detained 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, reading material, medical treatment and spiritual counselling.
12. 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.
13. 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.
14. 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.
15. Everyone who is detained has the right to be charged or to be released within 24 hours unless a court orders an extension to the detention for exceptional reasons.
16. Everyone who is charged with a criminal offence has the right to be released pending trial unless the prosecution can produce admissible evidence to show that there are relevant and sufficient reasons to justify continued detention.
17. Everyone has the right to be informed immediately upon arrest of his or her rights as an arrested person in a language and manner which he or she understands.
(b) Article 6 of the European Convention – Right to a fair trial
[1] In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
[2] Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
[3] Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
 

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(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
4. 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.
5. Everyone charged with a criminal offence has the right to remain silent at the trial and to have no adverse inferences drawn if this right is exercised.
6. 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.
7. 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.
8. Everyone convicted of a criminal offence has the right to appeal to a higher court against the conviction, the sentence or both.
9. Every witness in a court case has the right to reasonable protection, assistance, and support throughout the legal process.
10. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) 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.
11. Judges and other court officials shall conduct proceedings professionally, courteously and temperately and in a manner consistent with their public office.
12. 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.
13. 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.
 

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14. 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.
15. The State shall take effective measures to ensure that favourable conditions are created for the reintegration of ex-prisoners into society.
(c) Article 7 of the European Convention – Non-retrospectivity of criminal laws
[1] No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
[2] This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
(d) Fair trials in administrative law proceedings
1. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
2. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons for that action.
8. The rights of victims
(a) Victims of the conflict
1. 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.
2. All victims of the conflict have the right to the highest possible level of social care and support in accordance with their needs, particularly in respect of personal security and access to health care, income support, employment, training and education and for those purposes to be protected from any unfair or discriminatory treatment.
 

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(b) The rights of victims for the future
1. “Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws. A person may be considered a victim regardless of whether the perpetrator is apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term also includes, where appropriate, their family, their dependants, those with whom they have a close relationship and persons who have suffered harm in intervening to assist victims in distress or to prevent victimisation.
2. 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 obtain redress by way of restitution or compensation through formal or informal procedures that are expeditious, fair, inexpensive and accessible.
(c) the right of every victim to have the crime in question investigated thoroughly, promptly and impartially.
(d) 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.
(e) the right of every victim to reasonable assistance during the trial of any person charged in connection with the crime in question.
(c) Violence against women
The State shall take all appropriate measures to prevent and eliminate all forms of violence against women and girls whether physical, mental or emotional.
9. Right to family life and private life
(a) Article 8 of the European Convention – Right to family and private life
[1] Everyone has the right to respect for his private and family life, his home and his correspondence.
[2] There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society
 

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in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
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.
(b) Article 12 of the European Convention – Right to marry
[1] Men and women of marriageable age have the right to marry and to found a family, according to the laws governing the exercise of this right.
2. 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 and in long-term domestic partnerships. Such legislation shall provide for the formal recognition of the relationship and the rights and responsibilities of the partners during the relationship and in the event of its dissolution.
3. Everyone who is married has the right to have the marriage terminated in accordance with the law.
10. The rights of children
(a) General provisions
1. For the purposes of this Bill of Rights, a child means every human being below the age of 18 years.
2. In all actions concerning children, whether undertaken by public or private institutions, individuals or bodies, courts of law, administrative or legislative authorities, the best interests of the child shall be the paramount consideration and the following rights shall be interpreted as subject to that requirement.
3. Public bodies shall carry out their functions in relation to children in accordance with the provisions of the UN’s Convention on the Rights of the Child and shall in addition take all reasonable steps to ensure for all children the following rights.
 

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(b) Participation rights
1. The State shall ensure to every child the right to express his or her views freely in all matters concerning him or her. The State undertakes to consider such views and to give them due weight in accordance with the age and maturity of the child.
2. Every child has the right to participate effectively, either directly or indirectly through an independent representative, in all proceedings affecting him or her, whether administrative or judicial, in public or private law. Every child has the right of access to the law and to legal representation.
3. Every child has the right to participate and play a constructive role in society and in the future of Northern Ireland. Without prejudice to duties imposed by domestic law, the State shall promote and encourage all those working with and for children to collaborate, co-operate and form partnerships with children to further the protection of their rights.
(c) The family
1. Every child has the right to grow up in a stable and safe family environment and to this end the State shall provide adequate support and assistance to parents and other primary carers.
or
The State shall provide adequate support and assistance to parents and other primary carers to enable every child in so far as is possible to grow up in a stable and safe family environment.
2. Every child who is denied a stable, safe and loving family environment is entitled to special protection and support from the State in the best interests of the child within a reasonable time. The State’s obligation to protect and support shall end only when it is no longer required. Children leaving care shall be prepared for and supported in the transition from care to independent living.
3. Every child who is separated from one or both parents has the right to maintain personal relations and direct and/or indirect contact with them and with his or her family on a regular basis except where it is contrary to his or her best interests.
(d) Protection rights
1. Every child has the right to be protected from all forms of physical, emotional or mental violence, inhuman or degrading treatment or punishment, injury or abuse, neglect or negligent treatment, bullying, maltreatment or exploitation, including sexual exploitation or abuse.
 

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2. Such protection shall include the taking of all necessary legislative, administrative, social and educational measures, the establishment of effective programmes for the identification, reporting, referral and investigation of such abuse and for the care and treatment of victims, and the independent monitoring of those programmes.
(e) Children in conflict with the law
1. No child below the age of 12 years shall be criminally responsible. The State undertakes to keep the age of criminal responsibility under review and to continue to develop measures for dealing with children in conflict with the law without resorting to judicial proceedings and in a way which removes them from the criminal process, provided that their human rights and legal safeguards are fully respected.
2. Every child suspected or accused of having infringed the criminal law, or found to have infringed it, has the right to be treated in a manner consistent with respect for his or her dignity and human rights and in accordance with his or her age and understanding.
3. The following minimum rights shall be guaranteed to every child:
(a) the right to have criminal charges explained promptly and in appropriate language;
(b) the right to have access to appropriate legal and other assistance in the preparation of a defence;
(c) the right to have any criminal charge determined without delay by a competent, independent and impartial tribunal in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is contrary to his or her best interests and taking into account his or her age or situation, of his or her parents or legal guardians;
(d) the right to have an appropriate adult present to represent the interests of the child even if a solicitor is also present;
(e) the right to be tried for a criminal offence in an appropriate setting and manner, having regard to the child’s age, maturity, needs, vulnerability and understanding;
(f) the right to have measures taken to ensure his or her participation in and understanding of the criminal proceedings;
(g) the right to have his or her privacy respected before, during and after the proceedings.
 

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4. The detention of a child must occur only in exceptional circumstances and in accordance with the law. Detention shall be used only as a measure of last resort and for the shortest appropriate period of time. A variety of dispositions and alternatives to institutional care shall be available to ensure that children are always dealt with in a manner appropriate to their well-being and proportionate to their circumstances and the alleged offence.
5. Every child deprived of liberty shall be treated with respect for his or her dignity and human rights and in a manner which takes into account his or her age and particular needs.
6. Every child deprived of liberty shall have the following minimum rights:
(a) the right to be separated from adults in detention and (if not yet found guilty) from children who have already been found guilty;
(b) the right to prompt access to appropriate legal and medical assistance and pastoral care;
(c) the right to privacy and respect for his or her correspondence;
(d) the right to maintain regular and direct contact with parents, siblings or other family members and friends, save in exceptional circumstances;
(e) the right to access the Northern Ireland Curriculum and/or educational and vocational training necessary to prepare for his or her re-integration and constructive participation in society following release.
(f) Children with disabilities
1. Every child living with a disability has the right to the greatest extent possible to enjoy an independent and fulfilling life in conditions which ensure dignity, promote self-reliance and facilitate his or her active participation in the community. He or she has the right to special care and assistance, to assessment and appropriate services, and to effective education, which allows the child, to the greatest extent possible, to maximise his or her potential for personal development, independence and social inclusion.
(g) Right to play
1. Every child has the right to play and leisure which is appropriate to his or her age and ability and which contributes to his or her social, physical, emotional, creative and intellectual development. The State shall promote the right of all children to participate in sport, cultural, recreational and artistic activities.
 

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(h) Health care
1. Every child has the right to enjoy the highest attainable standard of health and to enjoy access to all appropriate health care services, including dedicated psychiatric services.
2. The State shall take appropriate measures to address health problems specific to children and to promote the health and health care of children. Every child has the right to receive information, material and guidance from a range of sources on issues relating to the child’s well-being, including reproductive health, sex and sexuality.
3. Every child has the right to a standard of living adequate to the child’s physical, mental, spiritual and social development. The State shall provide material assistance and support to enable the full implementation of this right to be achieved.
(i) Education
1. Every child has the right to an effective education.
2. The State shall take appropriate measures to ensure that education respects the rights and needs of all children, especially children with disabilities, pregnant children, children in care, children in juvenile justice centres and children of other disadvantaged groups.
3. School exclusions shall be imposed only as a measure of last resort. Every child excluded from school has the right to be informed promptly of the grounds for the exclusion, to receive all documentation relating to the school’s decision to exclude and to have the right to participate in an independent appeal procedure, together with his or her parents, guardians or other independent representative.
4. The State shall take measures to protect the safety of children in school, to respect their right to privacy and human dignity, and to guarantee their effective participation in matters affecting his or her education.
(j) Children’s economic rights
1. The State shall take appropriate measures to protect every child from economic exploitation and from performing any work that is hazardous, interferes with the child’s education, is harmful to the child’s health or is otherwise prejudicial to any aspect of the child’s welfare.
2. Children working below school leaving age shall enjoy the same rights and protection as other workers in relation to the right to just conditions of work, the right to safe and healthy working conditions, the right to a fair remuneration, the right to organise, the right to bargain collectively, and the right to equal opportunities and equal treatment without discrimination on any of the grounds
 

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specified in clause 4(8). Persons in full-time employment between school leaving age and the age of 18 shall enjoy all of these rights and all other rights available to workers over the age of 18.
(k) Awareness about rights
1. The State undertakes to make the rights of children widely known and accessible to all. To this end, the State undertakes to include human rights on the school, youth service and training curricula, as well as on the training programmes for all those working for, in connection with or on behalf of children.
11. Education rights
(a) The right of effective and appropriate education for all
Article 2 of Protocol 1 of the European Convention – Right to education
[1] No-one shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
2. Everyone has the right to an effective education which is to the greatest extent possible directed towards the full development of the person, including his or her talents, mental and physical abilities and sense of dignity and which enables all persons to participate effectively in the life of the community.
3. The State shall, to the greatest extent possible, ensure the right of parents to have education and teaching for their children in conformity with their religious, philosophical and pedagogical convictions, subject to the competence of the child to decide for him- or herself in accordance with his or her age and maturity. The State shall respect the right of parents to choose for their children education in schools with a particular religious ethos, education in integrated schools and education in Irish-medium schools.
4. The State shall provide financial and other support to all schools established in accordance with need and with clause (b) above on an equitable and transparent basis, subject to reasonable requirements, including minimum numbers of pupils in any area and without prejudice to the need to redress inequalities.
(b) A specific protection from discrimination
1. No individual shall be denied admission to any educational establishment receiving state funding on any of the grounds specified in the non-discrimination clause in this Bill of Rights.
 

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2. The State shall ensure that the criteria for admission to all such educational establishments are such as to ensure access to effective and appropriate education for all.
(c) A provision on education for mutual respect and human rights
1. The State shall ensure that education in all its forms shall be directed to the promotion of human rights, equality, dignity of the person, respect for diversity and tolerance.
12. Rights to freedom of thought, expression, information and association
(a) Article 9 of the European Convention – Freedom of thought
[1] Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his or her religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his or her religion or belief, in worship, teaching, practice and observance.
[2] Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.
(b) Article 10 of the European Convention – Freedom of expression
[1] Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
[2] The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
(c) Article 11 of the European Convention – Freedom of assembly
[1] Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
 

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[2] No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or the administration of the State.
13. Language rights
1. Everyone has the right to use his or her own language for private purposes and all languages, dialects and other forms of communication are entitled to respect.
2. Everyone has the right to communicate with any public body through an interpreter, translator or facilitator when this is necessary for the purposes of accessing, in a language that he or she understands, information or services essential to his or her life, health, security or enjoyment of other essential services.
3. The State shall make suitable provision for assisting communication between members of different linguistic communities.
4. Without prejudice to the foregoing provisions, legislation shall be introduced to ensure for members of all linguistic communities, where there is sufficient demand, the following rights in respect of their language or dialect:
(a) the promotion of conditions necessary to maintain and develop it;
(b) the right to use it in dealings with public bodies;
(c) the right to use one’s name in it and to be officially recognised under it;
(d) the right to display signs and other information in it:
(e) the right to display local street and other place names in it;
(f) the right to learn it and to be educated in and through it.
5. Without prejudice to the foregoing provisions, in relation to the Irish language and Ulster-Scots, legislation shall be introduced to implement the commitments made under the Belfast (Good Friday) Agreement and the European Charter for Regional or Minority Languages.
14. Social, economic and environmental rights
(a) A general provision to govern social and economic rights
1. Since poverty and social exclusion represent a fundamental denial of human dignity, the protection of social and economic rights is an integral part of the delivery of effective human rights. All public bodies through which any of the legislative, executive or judicial powers of the State are exercised in Northern Ireland (in particular the Northern Ireland Executive and Northern Ireland Assembly) shall therefore take legislative and/or other measures to develop and enforce
 

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programmatic responses to the social and economic rights set out below. In doing so, all public bodies will allocate resources in a proportionate and non-discriminatory manner, as set out in the non-discrimination clause (4(4)) of this Bill of Rights. All public bodies shall be required to consult and to create mechanisms which facilitate and promote the development of policies and programmes to ensure social and economic inclusion for all citizens. Legal remedies shall protect the due process and equality rights of all citizens in respect of social and economic rights.
(b) Protection of property
Article 1 of First Protocol to the European Convention
[1] Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
(c) The right to health care
1. Everyone is entitled to the highest attainable standard of physical and mental health and well-being.
2. Government shall take all reasonable steps to promote good health and well-being, and to ensure adequate prevention and treatment of ill-health.
3. Equality of access to health promotion, treatment and prevention of ill-health shall be assured.
4. Everyone has the right to be consulted about decisions which affect his or her physical or mental health.
5. Everyone has the right to have equal and free access to sexual and reproductive health care and to information and education relating to sexual and reproductive matters at all levels, free of coercion, discrimination or violence.
(d) The right to an adequate standard of living
1. Everyone is entitled to an adequate standard of living sufficient for that person and those dependent upon him or her.
2. Material provision for each person should be sufficient to ensure esteem for his or her health and dignity.
 

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3. Everyone has the right to social and civic care.
4. Persons receiving assistance from the State shall be accorded respect. The State shall endeavour to accommodate the particular needs of ethnic and minority groups in the provision of material needs.
5. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided to ensure the enforcement of these rights.
(e) The right to housing
1. Everyone has the right to adequate housing.
2. Housing should be appropriate to the material, social and mobility needs of the person.
3. Everyone is entitled to secure establishment in his or her home. Limitations on secure establishment must be subject to fair legal process.
(f) The right to work
1. Everyone has the right to contribute to the economic and social life of society, including the right of access to work and the right to choose and practice a trade or profession.
2. The State shall provide for, support and encourage the continuous development of skills, knowledge and understanding that are essential for employability and fulfilment.
3. Everyone has the right to just and favourable conditions of work.
(g) The right to a healthy and sustainable environment
1. Everyone has the right to a healthy, safe and sustainable environment.
2. The State has a duty to provide accurate and timely information and to communicate, consult and foster participation in planning and decision-making on matters which concern the environment.
15. 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,
 

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must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
must have due regard to the content of the Belfast Agreement of 10 April 1998 and to the Preamble to the Bill of Rights;
must have due regard to international law and practice; and
may have due regard to the law and practice of other countries.
2. When interpreting any legislation, and when developing the common law, a court, tribunal or other body must promote the spirit, purpose and objectives of the Bill of Rights.
3. The Bill of Rights does not deny the existence of any other rights or freedoms which are recognised or conferred by legislation or the common law, to the extent that they are consistent with the Bill.
16. Limitations
1. The non-Convention rights in the Bill of Rights may be limited only to the extent that the limitation is prescribed by law, reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into account all relevant factors including:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
Article 17 of the European Convention – Prohibition of Abuse of Rights
[2] Nothing in this Convention may be interpreted as implying for any state group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
Article 18 of the European Convention – Limitation on use of restrictions on rights
[3] The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
 

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17. Emergencies
(a) Article 15 of the European Convention – Derogation in time of emergency
[1] In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
[2] No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
[3] Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
(b) States of emergency
1. No derogation from the Bill of Rights for Northern Ireland shall be lawful in Northern Ireland unless a state of emergency in Northern Ireland has been declared prior to the derogation.
2. A state of emergency in Northern Ireland may be declared only by an Act of the relevant legislative authority and only after the legislative body has passed a resolution that -
(a) the life of the people of Northern Ireland is seriously threatened by war, invasion, general insurrection, natural disaster, or other public emergency; and
(b) a declaration of a state of emergency is strictly required by the exigencies of the situation.
3. A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, is effective only -
(a) prospectively from the date of the declaration; and
(b) for no more than 21 days from the date of the declaration, unless the relevant legislative body extends the declaration of a state of emergency.
4. Any extension of a state of emergency can be valid for no longer than three months and must be made by a resolution of the relevant legislative body supported by a cross-community vote of at least 60 percent of the members of the legislative body in Northern Ireland.
 

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5. On an application from any interested person, a competent court may decide on the validity of -
(a) a declaration of a state of emergency;
(b) any extension of a declaration of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.
6. No Act of the relevant legislative body which authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise:
(a) indemnifying the state, or any person, in respect of any unlawful act; or
(b) any derogation from this section.
18. Enforcement
1. Courts shall grant to any person or body whose rights and freedoms under this Bill of Rights have been or may be violated an effective remedy and for this purpose may grant such relief or remedy, including compensation, or make such order, as they consider just and appropriate.
2. Any person or body who has a legitimate interest in the matter may bring proceedings concerning the alleged breach of any provision in this Bill of Rights.
3. Proposed legislation may be referred to the courts for a decision as to whether it is at that time compatible with the Bill of Rights for Northern Ireland.
19. Entrenchment and amendment
No amendment shall be made to this Bill of Rights without the consent of the Northern Ireland Assembly in a resolution adopted by a cross-community vote. The Assembly may at any time adopt a resolution by a cross-community vote requesting the amendment of the Bill. Any such resolution shall specify the amendment to be made.
 

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APPENDIX 3
The Text of the European Convention Rights
Section 1 (“Rights and Freedoms”) of the European Convention on Human Rights (1950), i.e. Articles 2 to 18:
Article 2 – Right to life
1 Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2 Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
a in defence of any person from unlawful violence;
b in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c in action lawfully taken for the purpose of quelling a riot or insurrection.
Article 3 – Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 4 – Prohibition of slavery and forced labour
1 No one shall be held in slavery or servitude.
2 No one shall be required to perform forced or compulsory labour.
3 For the purpose of this article the term "forced or compulsory labour" shall not include:
a any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
b any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
c any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
d any work or service which forms part of normal civic obligations.
 

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Article 5 – Right to liberty and security
1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a the lawful detention of a person after conviction by a competent court;
b the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2 Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3 Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.
Article 6 – Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall
 

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be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3 Everyone charged with a criminal offence has the following minimum rights:
a to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b to have adequate time and facilities for the preparation of his defence;
c to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Article 7 – No punishment without law
1 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2 This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
Article 8 – Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-
 

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being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 9 – Freedom of thought, conscience and religion
1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 10 – Freedom of expression
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11 – Freedom of assembly and association
1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
 

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Article 12 – Right to marry
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Article 13 – Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
Article 14 – Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Article 15 – Derogation in time of emergency
1 In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2 No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3 Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
Article 16 – Restrictions on political activity of aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.
Article 17 – Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
 

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Article 18 – Limitation on use of restrictions on rights
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
Protocol 1 to the ECHR (1952), Articles 1 to 3:
Article 1 – Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Article 2 – Right to education
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
Article 3 – Right to free elections
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
Protocol 4 to the ECHR (1963):
Article 1 – Prohibition of imprisonment for debt
No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.
Article 2 – Freedom of movement
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the
 

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interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.
Article 3 – Prohibition of expulsion of nationals
1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.
2. No one shall be deprived of the right to enter the territory of the State of which he is a national.
Article 4 – Prohibition of collective expulsion of aliens
Collective expulsion of aliens is prohibited.
Protocol 6 to the ECHR (1983):
Article 1 – Abolition of the death penalty
The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.
Article 2 – Death penalty in time of war
A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.
Article 3 – Prohibition of derogations
No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.
Article 4 – Prohibition of reservations
No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.
 

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Protocol 7 to the ECHR (1984):
Article 1 – Procedural safeguards relating to expulsion of aliens
1. An alien lawfully resident in the territory of a State shall not be expelled there from except in pursuance of a decision reached in accordance with law and shall be allowed:
(a) to submit reasons against his expulsion,
(b) to have his case reviewed, and
(c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.
2. An alien may be expelled before the exercise of his rights under paragraph 1.a, b and c of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.
Article 2 – Right of appeal in criminal matters
1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.
Article 3 – Compensation for wrongful conviction
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
Article 4 – Right not to be tried or punished twice
1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State
 

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concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.
Article 5 – Equality between spouses
Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.
Protocol 12 to the ECHR (2000):
Article 1 – General prohibition of discrimination
1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

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APPENDIX 4
Results from a 2004 Opinion Survey
In February 2004 a random sample of 1,000 people in Northern Ireland aged 18 years and over were asked how important a Bill of Rights was to them and what some of the rights protected by a Bill of Rights for Northern Ireland should be. This was the third face-to-face survey commissioned by the Human Rights Commission to ascertain public opinion. The two previous surveys took place in 1999 and 2001.
The need for a Bill of Rights
The results of the 2004 opinion survey have continued to bear out the importance attached to a Bill of Rights for Northern Ireland which clearly emerged from the two earlier surveys. As Table 1 indicates, almost 70% of those expressing an opinion said that a Bill of Rights reflecting the particular circumstances of Northern Ireland was either essential or desirable. Strong support for a Bill of Rights was indicated by both main communities (65% of Protestants and 73% of Catholics) and this too has been a consistent feature throughout all three surveys. Just 2% of those who were asked for an opinion in 2004 felt that the idea of a Bill of Rights was unacceptable.
Table 1: The need for a Bill of Rights
The Commission’s proposals for a Bill of Rights must reflect the particular circumstances of Northern Ireland, including the principles of mutual respect for the identity and ethos of both communities and parity of esteem. Do you think that such a Bill of Rights is:
Essential
Desirable
Acceptable
Tolerable
Unacceptable
 

Don’t Know
 

Protestant
44%
21%
18%
4%
2%
10%
 

Catholic
59%
14%
10%
2%
2%
13%
 

All
50%
19%
15%
3%
2%
12%
Views on specific rights
The survey asked more detailed questions on a number of specific rights that could be protected by a Bill of Rights for Northern Ireland. The responses are contained in summary form in Table 2 below.
As with the surveys of 1999 and 2001, marked support for social and economic rights has continued to be displayed in 2004. These rights include the right to a reliable health service, good education, social security, decent jobs and proper housing. Of all those questioned as many as 76% said that specific protections for social and economic rights were essential or desirable in a Bill of Rights for Northern Ireland. Support was stronger among Catholic respondents (83%) than among Protestant respondents (72%). Further,
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79% of Catholics and 66% of Protestants wished to see a duty imposed on the Government and public bodies to guarantee social and economic rights.
73% of those questioned saw the inclusion in a Bill of Rights of pro-active measures to address inequality (79% of Catholics and 67% of Protestants) as essential or desirable. This indicates a 10% increase in support among Protestant respondents since 2001 while the support among Catholic respondents has neither increased or decreased.
A right for women to fair, full and equal participation in decision-making was seen as essential or desirable by 73% of all respondents (69% of Protestants and 80% of Catholics). These figures illustrate an increase in support from 2001.
Respondents were asked to say how important it was to create specific protections for the rights of two main communities in Northern Ireland. 71% (68% of Protestants and 74% of Catholics) viewed this as essential or desirable. When asked for their views on whether a Bill of Rights should protect the rights of other communities, 78% (equal numbers of Protestants and Catholics) replied in the affirmative. Finally, 61% of Catholics and 50% of Protestants viewed the right not to be treated as a member of a particular community as essential or desirable.
Table 2: Views on specific rights
Essential or desirable
Unacceptable
How important do you think it would be for the Bill to include:
Protestant
Catholic
All
Protestant
Catholic
All
Specific protections for the rights of the two main communities
68%
74%
71%
2%
3%
2%
A right not to be treated as a member of a particular community
50%
61%
56%
6%
5%
5%
Specific protections for economic and social rights
72%
83%
76%
2%
2%
2%
A duty on government and public bodies to guarantee economic and social rights
66%
79%
72%
3%
2%
2%
Proactive measures to address inequality
67%
79%
73%
2%
2%
2%
A right to communicate with public bodies through an interpreter to gain access to essential services
53%
72%
63%
6%
3%
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Progressing a Bill of Rights for Northern Ireland: An Update
A right of elected representatives to fair, full and equal participation in governance of Northern Ireland
55%
70%
62%
5%
3%
4%
A right for women to fair, full and equal participation in decision-making and power
69%
80%
73%
2%
3%
2%
Continued application of the Bill if there were a united Ireland
59%
62%
61%
7%
10%
7%
How a Bill of Rights should work in practice
A new question was asked in the 2004 survey to ascertain views on how a Bill of Rights might be made to work in practice (i.e. enforced) in Northern Ireland. All those questioned were asked to provide views on three possible options – using the existing courts, using a new constitutional court or using a new human rights court. As can be seen from Table 3 below, opinion was fairly equally supportive of the options of using the existing courts (46% of all those questioned) and using a new human rights court (44%). Making a Bill of Rights work effectively in practice is a complex debate and the Commission will therefore continue to give careful consideration as to how best a Bill of Rights could be enforced.
Table 3: How a Bill of Rights should work in practice
Do you think a Bill of Rights should be enforced, that is, made to work in practice, through:
The existing courts in
Northern Ireland
A new Constitutional Court in Northern Ireland
A new Human Rights Court
in Northern Ireland
Protestant
Catholic
All
Protestant
Catholic
All
Protestant
Catholic
All
Yes
49%
43%
46%
33%
31%
33%
39%
47%
44%
No
16%
27%
21%
28%
38%
31%
22%
27%
23%
Don’t Know
35%
30%
33%
39%
31%
36%
39%
27%
34%
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Advising government without agreement of political parties
The Commission was tasked by the Belfast (Good Friday) Agreement 1998 to provide advice to government on the scope for defining rights in a Bill of Rights for Northern Ireland. The Commission would prefer if the political parties in Northern Ireland could agree with its advice before it is handed to government. However, the Commission recognises that this may not be possible given the political uncertainties in Northern Ireland. Of all those who questioned in the 2004 survey, the overwhelming majority of respondents (67%) thought that the Commission should provide advice to government even if the political parties have not been able to agree it (see Table 4, below). Stronger support for this view came from Catholics (73%) than from Protestants (63%).
Table 4: Advising government without agreement of political parties
The Northern Ireland Human Rights Commission must give its advice on a Bill of Rights for Northern Ireland to the UK government. Should the Commission give its advice even if the political parties in Northern Ireland have not all been able to agree it?
Protestant
Catholic
All
Yes
63%
73%
67%
No
9%
9%
9%
Don’t Know
28%
18%
25%
Source: NIHRC Opinion Survey, Market Research Northern Ireland, March 2004
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