Getting to Yes on a Bill of Rights for Northern Ireland

[1] Making a Bill of Rights for Northern Ireland (NIHRC, September 2001).

[2] Progressing a Bill of Rights for Northern Ireland: An Update (NIHRC, April 2004).

[3] A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland (NIHRC, December 2008).

[4] Ibid, Appendix 1, 179.

[5] Ibid, criterion ‘A’.

[6] A Bill of Rights for Northern Ireland: Next Steps (NIO, Consultation Paper), paras 3.14 and 3.15.

[7] Ibid, para 1.2.

[8] Ibid, para 1.3.

[9] Ibid, para 1.5. Each of these five areas is discussed at greater length in chaps 5 to 9 of the Consultation Paper.

[10] Note 3 above, pp 164-166.

[11] Note 3 above, pp 148-149

[12] This is the convention (i.e. tradition) that Westminster will not normally legislate for matters that have been transferred to a devolved region unless that region consents to that legislation. The UK Supreme Court has ruled that the Convention, even when enshrined in a statute, is not enforceable through the courts. 

[13] Note 6 above, para 4.3.

[14] Northern Ireland Act 1998, Sch 9.

[15] Note 4 above, para 4.6.

[16] As per section 3 of the Human Rights 1998.

[17] Ibid, section 4.

Your terms of reference

1. Under the New Decade, New Approach document your Committee was established to consider:

‘the creation of a Bill of Rights that is faithful to the stated intention of the 1998 Agreement in that it contains rights supplementary to those contained in the European Convention on Human Rights (which are currently applicable) and that reflect the particular circumstances of Northern Ireland; as well as reflecting the principles of mutual respect for the identity and ethos of both communities and parity of esteem’.

1. On a strict interpretation of those terms of reference your Committee could faithfully fulfil its task by considering the creation of a Bill of Rights and concluding that it should not be created. You would not have wasted your time because you would at least have made the effort to weigh up the pros and cons of whether a Bill of Rights should be created or not. The Belfast (Good Friday) Agreement contemplates but does not mandate a Bill of Rights.
2. But we all know that such a conclusion is extremely unlikely, as several parties represented on the Committee have a long record of being desirous of some rights being added to the Human Rights Act 1998 in order to form a Bill of Rights for Northern Ireland. Also, I don’t think your Committee will receive much evidence from expert witnesses, or from members of the public, suggesting that no benefit whatsoever could be gained from a Bill of Rights.
3. A much more likely conclusion of your Committee, therefore, is that a Bill of Rights should be created, but that you are unable to agree what that Bill should contain. Your disagreement might well arise from your differing interpretations of what rights over and above those already protected by the European Convention on Human Rights (the ECHR) are reflective of ‘the particular circumstances of Northern Ireland’ and of ‘the principles of mutual respect for the identity and ethos of both communities and parity of esteem’. I wish to suggest a pathway which would allow you to resolve any such disagreement in a manner that would accommodate all parties.

The Bill of Rights process to date

1. It is important to remember how much discussion has already taken place around this topic since the Belfast (Good Friday) Agreement in 1998. As the then Chief Commissioner of the Northern Ireland Human Rights Commission, I launched the Commission’s consultation on a Bill of Rights on 1 March 2000. Prior to my appointment as Chief Commissioner I had long endorsed the need for a Bill of Rights in Northern Ireland and had helped an NGO to draft one. But that draft, like nearly every other draft prior to 1998, was largely composed of clauses protecting civil and political rights – the rights which were set out in the ECHR but which were not yet part of the domestic law of Northern Ireland or of anywhere else in these islands. But then those rights did become part of the law throughout the UK by virtue of the Human Rights Act 1998, which was enacted seven months after the Belfast (Good Friday) Agreement and ten days before the enactment of the Northern Ireland Act 1998. (Amongst the social and economic rights protected by the Human Rights Act, by the way, were the right to respect for one’s home, the right to peaceful enjoyment of one’s possessions and the right to education.) The Human Rights Act became binding on the Northern Ireland Assembly and Executive when the latter was formed on 2 December 1999, but it did not come into force for other public authorities until 2 October 2000. The ECHR became part of the domestic law of the Republic of Ireland more than three years later, when the European Convention on Human Rights Act 2003 (Ireland) came into force on 31 December 2003.
2. The NIHRC’s consultation on a Bill of Rights in 2000 was extremely wide-ranging and the submissions received were overwhelmingly in favour of a Bill of Rights that was comprehensive in nature. That may have been partly because the Human Rights Act 1998 had not yet come fully into force, so the idea that ECHR rights were already part of the law of Northern Ireland was still an unfamiliar one. But it may also have been because the people who responded to the Commission’s consultation wanted a document that would help to copper-fasten the fragile peace process in Northern Ireland, which at that time was just beginning to bed down. To be frank, that was my own motivation for wanting quite a comprehensive Bill of Rights. If enacted by the UK Parliament, as required by the Belfast (Good Friday) Agreement, it would, I hoped, become a central pillar of the governance arrangements here, ensuring that, whatever political difficulties might lie ahead, the people of Northern Ireland would still be able to fall back on a wide range of rights, if necessary by going to court to vindicate them. A Bill of Rights could not prevent violence from breaking out again, but it could ensure that everyone in society was treated equally, with no individuals having more rights than others.
3. You will all be familiar with the history of the debates about a Bill of Rights since 2000. The draft proposals for a Bill of Rights unanimously agreed by the NIHRC in 2001[1] were not welcomed by the then Labour Secretary of State, John Reid, who thought the Commission had gone far beyond its statutory remit. Nor was it supported by some human rights NGOs, which thought the Commission had not been ambitious enough. Three of the ten members of the Commission later withdrew their support for the draft, siding with the NGOs. Having taken account of the criticisms, the NIHRC produced a follow-up document in 2004.[2] In March 2007 a Bill of Rights Forum was established by the UK government, chaired by Professor Chris Sidoti and with 28 other members. The Forum established seven working groups which met regularly from July 2007 and the Forum met in plenary session on 14 occasions after December 2007. The Forum’s report was delivered in March 2008. It was considered by the NIHRC over the next few months and formed the basis of the Commission’s advice to the Secretary of State in December 2008.[3]
   1. The NIHRC’s advice was very comprehensive, setting out in some detail why many new rights should be contained in a Bill of Rights and how they should be enforced. Because the proposals went further than those canvased by the NIHRC in 2001, the human rights NGOs were very supportive of them. The NIHRC set out the criteria it felt should be used for deciding which issues should qualify as falling under the rubric of ‘the particular circumstances of Northern Ireland’[4] and for each right that it wanted to see inserted in a Bill of Rights it explained how one or more of those criteria were satisfied. However, those criteria allowed rights to be included in the proposed Bill of Rights which had little if any connection to the conflict in Northern Ireland. It was enough, for example, if they were rights which were already protected in Northern Ireland but had been more neglected there than in other parts of the UK.[5] On the other hand, the right of parents to insist that their children be educated in schools attended by both Catholic and Protestant pupils was deemed not to meet any of the criteria. Nor, incidentally, was the right of any woman to have an abortion, even though that right has been considerably more neglected in Northern Ireland (for good or ill) since the Abortion Act 1967 was passed for Great Britain.
   2. In 2009, the then Labour Secretary of State, Shaun Woodward, again had to conclude that the NIHRC had gone too far:

‘The government’s initial assessment is that over a half of the rights proposed in the NIHRC’s Advice are equally as relevant to the people of England, Scotland and Wales as they are to the people of Northern Ireland… [I]t is the government’s view that the introduction of such rights in Northern Ireland alone would either be unworkable in practice, or could give rise to unjustified inequalities across the UK.’[6]

Nevertheless, the UK government did recognize that ‘there remains a case for additional protections for the rights and freedoms of the people of Northern Ireland, which reflect the particular circumstances of Northern Ireland’.[7] The government’s Consultation Paper then suggested that the additional protections should be in the following areas:

-         equality, representation and participation in public life

-         identity, culture and language

-         sectarianism and segregation

-         victims and the legacy of the conflict

-         criminal justice.[8]

To its credit, the government’s Consultation Paper made various suggestions as to how those protections might be achieved. It did so because it thought that this more streamlined list of rights could help underpin peace, prosperity and political progress in Northern Ireland: it would encourage the full and equal participation of all people in Northern Ireland society; build and affirm respect for all cultures and communities; build confidence in public services in Northern Ireland; and protect those made vulnerable by the particular circumstances on Northern Ireland.[9]

10. Of course the campaign for a comprehensive Bill of Rights has continued to be waged since 2008, especially by the Northern Ireland Human Rights Consortium, and at times UN human rights treaty-monitoring bodies have supported the call for a Bill of Rights but without specifying how broad it should be. Towards the end of 2010 the UK government published the 232 substantive responses it had received to its 2009 Consultation Paper, noting that there was (unsurprisingly) a divergence of views submitted by the public and also by the political parties, particularly around the appropriate breadth of a Bill of Rights. Despite these and subsequent developments, we are no nearer to obtaining any kind of Bill of Rights today than we were in 2000.

11. If your Committee is to move matters forward I think it needs to go back and look closely at what the UK government was saying about the five key areas it highlighted in its 2009 Consultation Paper and also at what the NIHRC was recommending for those areas in its 2008 Advice. That is how, I think, you might be able to reach some level of agreement on what should be included in a Bill of Rights. But this will require political compromises to be made. If no compromises are made we will end up with the status quo – i.e. no Bill of Rights at all. That would be unfortunate, since everyone in Northern Ireland can only benefit from a Bill of Rights, however brief it is. The enactment of even a short Bill of Rights would also send a signal to the world that the peace and reconciliation process in Northern Ireland is still moving forward.   

Lessons learned

12. Looking back, I don’t think my attitude to a Bill of Rights in the early 2000s was unreasonable at the time. If there was any naivety in it, it lay in the assumption that if politics were to fail in Northern Ireland the mere listing of rights in a Bill of Rights would continue to guarantee peace, stability and good governance. I was overlooking the fact that for rights to be enjoyed there has to be a government in place to ensure that practical steps are taken to protect those rights. Between February 2017 and January 2020 there was no government in place in Northern Ireland and direct rule was not reinstated. Contrary to what has been suggested by some others, I believe that if a Bill of Rights had been in place during that period – even a Bill as broad as that proposed in the NIHRC’s advice submitted in 2008 – its existence would have done nothing to help restore the Executive in Northern Ireland or to have forced the UK government to step into its shoes. It is not the function of a Bill of Rights to create and maintain governments. Its function is to impose duties and constraints on governments once they have been formed. That was essentially the point I made in an article published in the Newsletter on 9 May 2019.

13. Another naïve assumption back in 2000 was that a UK government and Parliament – even one led by New Labour at the height of its powers and popularity – would be willing to enact a Bill of Rights for Northern Ireland that dealt with a range of issues which were unlikely to have been in the mind of any of those who drafted the Belfast (Good Friday) Agreement in 1998. Also, it was also unrealistic, perhaps, to expect unionists to sign up to a rights regime which was radically different from that of the rest of the UK. Some of them may have been disturbed by the provision in the Belfast (Good Friday) Agreement which says that whatever rights are protected by a Bill of Rights in Northern Ireland must also be protected to a similar extent by equivalent laws in the Republic of Ireland. To some unionists it might have seemed unfair that nationalists were to get a rights regime that aligned with that of the Republic while unionists were not to get one that aligned with that of the UK.

14. There is an irony in this because, despite the Irish government’s oft-repeated support for a wide-ranging Bill of Rights for Northern Ireland it has never, to my knowledge, stated that it would be prepared to enact a similar law in the Republic of Ireland. Indeed, as regards economic and social rights, for example, the Irish government has been just as reluctant as the British government to protect them in human rights law, as has the Supreme Court of Ireland.

15. The points made in the three previous paragraphs are not arguments against the creation of a Bill of Rights for Northern Ireland, but they are arguments against the creation of a Bill of Rights which takes a broad view of what is meant by ‘the particular circumstances’ in Northern Ireland: the wider the reach of a proposed Bill of Rights for Northern Ireland, the less likely it is to be truly acceptable either to the UK government and Parliament or to the Irish government and Oireachtas. I submit that what both governments intended by the phrase ‘the particular circumstances of Northern Ireland’ were the circumstances connected to the fact that Northern Ireland is a divided society, one which experiences difficulties not encountered to the same degree in either Great Britain or the Republic of Ireland concerning the rights of two ‘sides’ (i.e. unionists and nationalists, although of course there are many people in Northern Ireland who do not see themselves as falling into either of those camps). The difficulties in question relate to the sorts of areas listed in the UK government’s Consultation Paper mentioned in paragraph 9 above, namely difficulties over equality, representation and participation in public life, identity, culture and language, sectarianism and segregation, victims and the legacy of the troubles. Here I would endorse the view already put to your Committee by Professor Tom Hadden in the evidence he gave on 8 October 2020: you should engage with the British and Irish governments as to what kind of Bill of Rights they would most like to see emerge from your deliberations. If you come up with proposals which in the view of one or other of those governments has unnecessary read-across implications for their own rights system, your proposals are likely to be rejected by them.

16. So, I am not ashamed to say that, since my 6-year term at the NIHRC came to an end in 2005, I have changed my mind as to what kind of Bill of Rights we need for this place. In a nutshell, I think less would be more. I now believe we need a Bill of Rights that addresses directly the issues that were referred to in the section of the Belfast (Good Friday) Agreement dealing with a Bill of Rights and two or three other issues that were mentioned elsewhere in that Agreement. I think that a new law – let’s call it the Human Rights (Northern Ireland) Bill – should be enacted by the UK Parliament to deal with those issues and its final clause should read: ‘This Act, taken together with the Human Rights Act 1998, can be referred to as ‘the Bill of Rights for Northern Ireland’. In so far as the supplementary rights are to be enforced through different mechanisms than those enshrined in the Human Rights Act, those differences should be made clear. To that extent I agree with what is said in the NIHRC’s 2008 Advice about the need for different kinds of enforcement[10]: all rights in the Bill of Rights should be justiciable, but that does not mean that they need to be justiciable in the way provided for by sections 6 and 7 of the Human Rights Act (which, in general terms, make it unlawful for a public authority to act in a way which is incompatible with a Convention right and allow an actual or potential victim of that unlawful act to bring the public authority to court for a remedy).

17. If the Northern Ireland Assembly wishes to enact legislation protecting additional rights in Northern Ireland, it is at liberty to do so. Indeed, it has already done so to a limited extent: see, for instance, the Addressing Bullying in Schools Act (NI) 2016 and the Rural Needs Act (NI) 2016. Moreover, the New Decade, New Approach agreement explicitly commits the Executive to enacting legislation on issues such as the protection of language rights, the promotion of reconciliation and tolerance, the reduction of carbon emissions and the elimination of zero-hour contracts. In addition, the parties to that agreement:

‘acknowledge the importance of promoting and protecting the rights and identity of individuals and are agreed that the Executive should seek to build a society that reflects the best international standards of human rights’ (page 26).

In this way the Assembly can, if it wishes, provide for rights which many here would like to see protected by law but which the UK government and Parliament are unwilling to enact. The Assembly has extensive devolved powers including, for example, in the field of workers’ rights. That is the road which Scotland is currently taking: it is not demanding a comprehensive Bill of Rights from Westminster! (I return to the powers of the Assembly to protect rights at paragraphs 35-39 below.)

18. It is worth noting that in its 2008 Advice the NIHRC proposed giving sole control over the future of any Bill of Rights enacted at Westminster to the Northern Ireland Assembly: ‘Amendment of a Bill of Rights for Northern Ireland should only be undertaken with the cross-community approval of the Northern Ireland Assembly’.[11] In its 2009 Consultation Paper the UK government agreed with the NIHRC’s proposal regarding amendments to a Bill of Rights but also stated, rightly I think, that ‘a Bill of Rights which at its introduction is clearly supported across the community would be the most powerful and appropriate basis on which to legislate at Westminster’ (my emphasis). The NIHRC is right to concede, however, that nothing, except a non-binding political convention such as the current Sewel convention,^[12] can prevent a future Westminster Parliament from ignoring that constraint on its law-making powers. The UK Parliament is sovereign. It can even (unfortunately) enact laws that breach an international agreement.

Realpolitik 

19. I want to stress that I remain strongly in favour of human rights protection in Northern Ireland, because I think that any society which is genuinely based on respect for human rights is much more likely to be a free, fair and just society. But, to emphasise what I have already said, I no longer think that that this high degree of human rights protection has a realistic chance of being achieved through the kind of Bill of Rights referred to in the Belfast (Good Friday) Agreement (GFA). A more limited Bill of Rights should be enacted, with the Assembly left to do what it can within its legislative competence to make Northern Ireland a more free, fair and just society.

20. Your Committee should also be keen not to allow the Bill of Rights issue to drive different communities apart in Northern Ireland. All Bills of Rights are intended to do the opposite. I think the UK government was correct when it said in 2009 that, while no group should be allowed a veto when it comes to fundamental rights, proposals for new rights which are highly contested need to be backed up by particularly persuasive arguments: ‘A Bill of Rights needs to attract the broadest possible degree of support and gain enduring acceptance, not become a cause of division’.[13] That is surely common sense.

21. My view today is that if a Bill of Rights is to be enacted for Northern Ireland at Westminster, in line with what the Belfast (Good Friday) Agreement suggests, it should be a fairly short document which addresses the ‘rights issues’ that were relevant to the continuation of the troubles in Northern Ireland prior to 1998. To my mind that is what is meant by the New Decade, New Approach document when it refers to ‘a Bill of Rights that is faithful to the stated intention of the 1998 Agreement’. I talked about what those ‘rights issues’ are in a short article written for the 50-year anniversary issue of the magazine Fortnight, published in September 2020. I am told that you have already received a copy of that issue, but a copy of this particular article is annexed to this submission for your convenience. The issues – listed in many documents that eventually resulted in the Belfast (Good Friday) Agreement – are as follows:

-         promoting a culture of tolerance, mutual respect and mutual understanding,

-         encouraging shared and integrated education and housing

-         developing communities

-         advancing the position of women in public life

-         promoting reconciliation.

22. It can be seen that many of these issues overlap with those identified by the UK government in 2009 as ones which it thinks should be dealt with in a Bill of Rights. Your Committee should consider whether the UK government’s list is an appropriate distillation of what can be derived from the GFA. There seems to be a large degree of equivalence between them, as indicated in this Table:

Issues derived from the GFA in 1998	Analogous issues suggested by the UK government in 2009
Tolerance, mutual respect, mutual understanding	Equality; sectarianism; identity, culture, language
Sharing and integrated education and housing	Segregation
Community development	Criminal justice
Advancing women in public life	Representation and participation in public life
Promoting reconciliation	Victims and the legacy of the conflict

 

23. If your Committee is interested in recommending rights in any of these areas, it could do worse than consider the relevant proposals in the NIHRC’s 2008 Advice in the light of the UK government’s 2009 Consultation Paper. The following Table indicates the relevant pages of the two documents. I think your Committee should consider them carefully.

Topic	NIHRC proposals 2008	UK government proposals 2009
Equality	pp 33-34 and 80-85	pp 28-32
Sectarianism	pp 40 and 94-98	pp 52-55
Identity and culture	pp 41 and 98-103	pp 48-50
Language	pp 42 and 103-106	pp 48-50
Representation and participation in public life	pp 35-36 and 88-90	pp 34-39
Victims	p 43 and 106-9	pp 60-62

 

The UK government’s 2009 document was quite detailed in its analysis of the NIHRC’s proposals. On several issues (including sectarianism, language, victims, and criminal justice) it indicated that it would be willing to discuss what provisions might be included in a Bill of Rights in the light of responses to questions posed in the Consultation Paper. It also expressed a commitment to discuss with the Northern Ireland Executive whether some other provisions could be included in a Bill of Rights (e.g. a principle regarding inclusive and equitable representation within local government and a requirement that the membership of public bodies should be representative of the community in Northern Ireland). But the only supplementary rights to which the government gave its definite support at that time were these:

Equality

The UK government was supportive of including an equality provision in a Bill of Rights which would say that ‘everyone in Northern Ireland is equal before the law and has the right to the equal protection and benefit of the law’, although it pointed out that the provision would need to ensure that it did not lead to uncertainty about the extent to which differences in treatment are justified, or weaken the effect of existing protections (e.g. in sections 75 and 76 of the Northern Ireland Act 1998). The government also recognised that there was scope for updating the current equality laws (see too paragraph 38 below).

Identity and culture

The UK government wanted a Bill of Rights to enshrine the right of the people of Northern Ireland to identify themselves and be accepted as Irish or British or both. It also agreed that people in Northern Ireland should not be required to swear an oath that is contrary to their religion or belief.

Representation in public life

The UK government was happy to include a provision in a Bill of Rights saying that any electoral system in Northern Ireland should provide for both main communities in Northern Ireland to be fairly represented. It also proposed the inclusion of ‘a general principle of inclusive and equitable representation in the Assembly’.

Ways of protecting rights

24. Even if the scope of a Bill of Rights for Northern Ireland is limited in the way I have suggested, it will still be a challenge to frame legislation that will achieve the goals in question. This is partly because some of the goals are rather nebulous, making it difficult to know how to measure success. Concepts such as tolerance, mutual respect, mutual understanding and reconciliation are not easy to define, nor is a ‘developed’ community. There would be less difficulty in measuring the degree to which education and housing are shared or the extent to which women’s position in public life has been advanced.

25. The key to meeting this legislative challenge, I would suggest, is the realization that rights can be protected in various ways. The standard, traditional, way is by allowing a person who claims to be the victim of a right’s abuse to go to court to have his or her claim tested. But there are many other ways in which to vindicate rights. In the report which I helped to compile for the Human Rights Consortium, about which you were briefed by Christopher McCrudden and Kevin Hanratty on 12 November 2020, a wide variety of methods for protecting economic and social rights is canvassed. Implicit in that report – we should perhaps have highlighted it to a greater extent than we did – is the point that rights issues can be legislated for indirectly, through the imposition of duties, rather than directly, through the conferment of rights. And the choice of methods for protecting rights is not limited to economic and social rights.  

26. The common law which is applied in all jurisdictions throughout these islands is riddled with the concept of duties. One of the most famous is the duty of care. All of us in society, whether individuals or companies, whether private actors or public servants, owe a legal duty of care not to cause loss or injury to someone whom we should reasonably have foreseen would suffer those consequences of our actions. A breach of that duty, if it directly causes the loss or injury, can give rise to a successful claim for damages.

27. The concept of duties is also frequently used in legislation, e.g.:

-         ‘It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees’ (Health and Safety at Work (NI) Order 1978, article 4(1));

-         ‘It shall be the general duty of police officers (a) to protect life and property, (b) to preserve order, (c) to prevent the commission of offences, (d) where an offence has been committed, to take measures to bring the offender to justice’ (Police (NI) Act 2000, section 32(1));

-         ‘The Board of Governors of a grant-aided school must (a) ensure that policies designed to prevent bullying involving a registered pupil at the school are pursued at the school…’ (Addressing Bullying in Schools Act (NI) 2016, section 2(1)).

Not all statutory duties entitle people who have suffered loss or injury through a failure to comply with the duty to go to court for compensation. But the duties that do not lead to that avenue of redress can still be enforced in other ways, such as by seeking a court order declaring that that the duty-holder has acted unlawfully and requiring the duty-holder now to perform the duty, by reporting the duty-holder to a regulatory body which can then impose sanctions on the duty-holder, or simply by widely publicising the failure to perform the duty and thereby damaging the duty-holder’s reputation.      

28. Well-known and very relevant examples of statutory duties in Northern Ireland which cannot be enforced through a court action in which compensation is sought are those imposed by section 75 of the Northern Ireland Act 1998, mentioned in paragraph 23 above:

‘(1) A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity (a) between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation; (b) between men and women generally; (c) between persons with a disability and persons without; and (d) between persons with dependants and persons without.

(2) Without prejudice to its obligations under subsection (1), a public authority shall in carrying out its functions relating to Northern Ireland have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group.’

The effectiveness of these duties is kept under review by the Equality Commission for Northern Ireland, which can also give advice to public authorities on how to perform the duties and investigate complaints that public authorities are not complying with the duties.[14] If the public authority is a government department the Commission can ask the department to revise its equality scheme. In all other cases the Secretary of State can give directions to the public authority as deemed appropriate. As pointed out in the report compiled for the Human Rights Consortium on economic and social rights (at pages 35-39), there is room for enhancing the way in which the section 75 duties are enforced (e.g. by making judicial review more available). For present purposes they are being referred to merely as examples of existing legislation which seeks to protect rights in ways other than permitting direct court action by aggrieved individuals.     

29. International human rights treaties also rely to a considerable extent on indirectly protecting rights by directly imposing duties. Thus, Article 3 of the UN Convention on the Rights of the Child provides as follows:

‘(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(2) States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

(3) States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.’

It would be possible for such treaty provisions to be directly incorporated into the law of Northern Ireland, with additional provision made for what action can be taken if the duties are not fulfilled. The Children (NI) Order 1995, in its own article 3(1), already goes some way towards incorporating the first of the above duties into our law:

‘Where a court determines any question with respect to (a) the upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.’ 

If a court fails to comply with the duty, that is a breach of law and constitutes a valid ground for an appeal to a higher court.

30. The European Framework Convention for the Protection of National Minorities (FCNM) is also worthy of careful consideration, as argued by Dermot Nesbitt in his evidence to your Committee presented on 15 October 2020 (paras 20-29 of his written paper). The UK ratified this Convention just a few months before the Belfast (Good Friday) Agreement was reached and in the Agreement itself the Irish government committed to ratify it as quickly as possible (it did so in May 1999). The FCNM’s provisions not only require States to recognise certain rights but also impose on States a number of duties which do not necessarily confer correlative rights, e.g.:

Article 5 of the FCNM

(1) The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.

Article 6 of the FCNM

(1) The Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of education, culture and the media.

(2) 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.  

Other examples of legislation on safe communities, sharing, good relations, dignity, well-being, good governance, etc

31. It is difficult to find many other examples of provisions in existing legislation which seek to protect the other kinds of supplementary rights that are suggested in the Belfast (Good Friday) Agreement and in associated documents (as listed in paragraph 21 above). But there are still a few to contemplate beyond those in section 75 of the Northern Ireland Act 1998 and article 3(1) of the Children (NI) Order 1995 cited in paragraphs 28 and 29 above. The NIHRC’s 2008 Advice also contains some useful exemplars, e.g. in the section on the right to identity and culture (pp 41 and 98-103). Already within Northern Ireland’s statute book there are provisions such as these:

-         ‘The functions of a Police and Community Safety Partnership shall be… (f) to prepare plans for reducing crime and enhancing community safety in the district; (g) to identify targets or other indicators by reference to which it can assess the extent to which those issues are addressed by action taken in accordance with any such plans’ (Justice Act (NI) 2011, section 21(1))

-         ‘It is the duty of the Department of Education (so far as its powers extend) to encourage, facilitate and promote shared education’ (Shared Education Act (NI) 2016, section 3).

32. In Great Britain you can find examples such as these:

-         ‘A public authority must, in the exercise of its functions, have due regard to the need to… (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it (Equality Act 2010, section 149(1))

-         ‘A relevant authority [e.g. a district council] must promote and maintain high standards of conduct by members and co-opted members of the authority’ (Localism Act 2011, section 27(1))

-         ‘Each local authority must ensure that a panel of persons is in place for its area (a) with the function of assessing the extent to which identified individuals are vulnerable to being drawn into terrorism…’ (Counter-Terrorism and Security Act 2015, section 36(1))

-         ‘The general duty of the [Future Generations Commissioner for Wales] is (a) to… (i) act as a guardian of the ability of future generations to meet their needs, and (ii) encourage public bodies to take greater account of the long-term impact of the things that they do, and (b) for that purpose to monitor and assess the extent to which well-being objectives set by public bodies are being met’ (Well-being of Future Generations (Wales) Act 2015, section 18)

-         ‘The community justice partners for the area of a local authority must, in accordance with such provision as to timing as the Scottish Ministers make by regulations, publish a plan in relation to community justice for the area’ (Community Justice (Scotland) Act 2016, section 19(1))

-         ‘An appointing person for a public board must take such steps as it considers appropriate to encourage women to apply to become non-executive members of the public board’ (Gender Representation on Public Boards (Scotland) Act 2018, section 5(1)).

33. In other countries there are examples such as these:

-         ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.’ (Constitution of Germany 1949, Article 1(1))

-         ‘All spheres of government and all organs of state within each sphere must… (b) secure the well-being of the people of the Republic; (c) provide effective, transparent, accountable and coherent government for the Republic as a whole… and (h) co-operate with one another in mutual trust and good faith by (i) fostering friendly relations; (ii) assisting and supporting one another; (iii) informing one another of, and consulting one another on, matters of common interest; (iv) co-ordinating their actions and legislation with one another; (v) adhering to agreed procedures; and (vi) avoiding legal proceedings against one another’ (Constitution of South Africa 1996, section 41(1))

-         ‘Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles: (a) A high standard of professional ethics must be promoted and maintained; (b) Efficient, economic and effective use of resources must be promoted; (c) Public administration must be development-oriented; (d) Services must be provided impartially, fairly, equitably and without bias; (e) People’s needs must be responded to, and the public must be  encouraged to participate in policy-making; (f) Public administration must be accountable; (g) Transparency must be fostered by providing the public with timely, accessible and accurate information; (h) Good human-resource management and career-development practices, to maximise human potential, must be cultivated; (i) Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation’ (Constitution of South Africa 1996, section 195(1)).

1. 34.  But it is also possible for Northern Ireland to be a leader in this field. If your Committee has the political will, you could approve novel clauses for inclusion in a Bill of Rights, carefully composed by those with experience in legislative drafting (not myself!). To give just two hypothetical possibilities:

-         ‘The First Minister and Deputy First Minister shall report annually to the Northern Ireland Assembly on the steps taken by Northern Ireland Ministers and Northern Ireland departments during the previous financial year to (a) promote a culture of reconciliation, tolerance, mutual respect and mutual understanding, (b) encourage shared and integrated education and housing, (c) develop communities and (d) advance the position of women in public life.’       

-         ‘The Minister responsible for community development in Northern Ireland shall report annually to the Northern Ireland Assembly on the steps taken by Northern Ireland Ministers and Northern Ireland departments to ensure adherence to the principles of (a) mutual respect for the identity and ethos of both communities and (b) parity of esteem.’

Such provisions could be supplemented by further provisions allowing for bodies or officials such as the Human Rights Commission, the Equality Commission, the Northern Ireland Audit Office or the Northern Ireland Public Services Ombudsman to review the annual reports in question and to publish an assessment of the progress made under each limb of the statutory duties. Some such assessments are already conducted on the current T-BUC strategy (Together: Building a United Community) but the system could be enhanced by drafting more effective provisions ensuring the implementation of the strategy. The imposition of such duties by a Bill of Rights would not necessarily confer a right on any individual to claim compensation for a failure to perform the duty, but it would allow cases to be brought to court by way of judicial review seeking a court order directing the public authorities in question to perform their duty. We saw a clear example of such a court order in the recent case of McNern’s and Turley’s Application for Judicial Review [2020] NIQB 57, where a High Court judge ordered the Executive Office not to obstruct the payment of compensation to victims of the troubles. In previous cases the High Court has required the Executive to comply with its statutory duties to develop strategies for alleviating poverty and for protecting language rights (Committee on the Administration’s Application [2015] NIQB 59; Conradh na Gaeilge’s Application [2017] NIQB 27).

 

   

Additional Assembly legislation to protect rights

35. Tempting though it may be to include, within a GFA-based Bill of Rights passed at Westminster, a long list of further rights, in my opinion it would be wiser to leave the discussion and possible adoption of those further rights to the political process within Northern Ireland itself. As the UK government observed in 2009, ‘whatever decisions are reached on the content of a Bill of Rights…it remains entirely open to the Northern Ireland Assembly to make further provision for Northern Ireland in any devolved areas if it chooses to do so’.[15]

36. Does it matter whether a new right is contained in a Bill of Rights passed at Westminster or in an Act of the Northern Ireland Assembly? Up to a point, yes. If we assume that supplementary rights in the Bill of Rights will be protected to the same degree as Convention rights are protected by the Human Rights Act, any legislation made in Northern Ireland which is incompatible with a supplementary right could be declared invalid by a court. This is true even of Acts of the Northern Ireland Assembly, because they will be considered to be secondary legislation for this purpose (being the Acts of a subordinate Parliament) and can therefore be declared invalid under section 3 of the Human Rights Act.  But if the supplementary right was contained in an Act of the Assembly and not in a Westminster Act, any subsequent Act of the Assembly which was incompatible with that right could not (normally) be declared invalid, since later legislation is always deemed to replace earlier legislation if the two pieces of legislation are incompatible (the earlier legislation is said to be ‘impliedly repealed’). But I have inserted the word ‘normally’ in the previous sentence because it would be possible for an Assembly Act to confer a special status on the supplementary right it is creating, just as the Human Rights Act does for Convention rights. The Assembly Act could say, as the Human Rights Act does, that all legislation, whether coming into force before or after the supplementary right has been created, must be read and given effect, so far as possible, in a way which makes the legislation compatible with the supplementary right.[16] If it is not possible to read and give effect to the legislation in that way, a court would then be able to declare the legislation invalid.[17] An alternative (but less protective) approach would be to say, in the legislation which creates the supplementary right, that subsequent draft legislation which appears to be incompatible with the right can be passed by the Assembly only if it is approved on the basis of a cross-community vote.  

37. In recent years the Assembly has shown itself capable of arriving at a consensus on the way forward on a number of rights issues – see, for example, the Children’s Services Co-operation Act (NI) 2015, the Shared Education Act (NI) 2016,  the Addressing Bullying in Schools Act (NI) 2016 (cited above in paragraph 27) and the Rural Needs Act (NI) 2016. Although the legislative competence of the Assembly is limited (more so than that of the Scottish Parliament but less so than that of the Welsh Parliament), there is still considerable scope for the Assembly to pass laws that would enhance the protection of (say) children’s rights, employees’ rights, victims’ rights,  the rights of disabled people, the rights of the elderly, the rights of the sick, the rights of the poor, the rights of minority language groups, etc. It might be difficult to achieve political agreement in many of these areas, but to make no progress on any of them until there is satisfactory progress on all of them through a comprehensive Bill of Rights which is subject to approval by the UK Parliament seems to me to be extremely counter-productive. It is allowing the perfect to be the enemy of the good, it is undermining the very raison d’être of devolution and it is delaying indefinitely the achievement of a fairer and more just society in this jurisdiction.

38. The area which is perhaps most ripe for attention outside of the Bill of Rights issue is that of equality rights. It would be possible to upgrade Northern Ireland’s equality law through the Bill of Rights but it would mean inserting a host of relatively minor provisions updating existing law – unless, of course, there was a consensus in favour of adopting a right to equality per se (as opposed to a right not to be discriminated against on the basis of certain protected characteristics). The Constitution of Ireland, for instance, protects the right to equality in Article 40.1 (‘All citizens shall, as human persons, be held equal before the law…’), but it has supplemented that provision with important statutes. In 2001 the OFMDFM published a discussion document on a Single Equality Bill and in the St Andrew’s Agreement of 2006 the two governments and the main political parties in Northern Ireland promised to work rapidly towards a Single Equality Bill. But nothing came of this promise and in 2012 First Minister Peter Robinson and Deputy First Minister Martin McGuinness announced that ‘there are currently no plans to develop a Single Equality Bill here’. Unfortunately, the New Decade, New Approach document of January 2020 does not address the issue. There is nothing to stop The Executive Office from re-visiting the issue today and from bringing forward in due course a Bill that allows the people of Northern Ireland to be as well protected on the equality front as people in the rest of the UK and in the Republic of Ireland. As noted earlier (see paragraph 23 above), in its 2009 response to the NIHRC’s 2008 Advice on a Bill of Rights, the UK government was willing to include in a Bill of Rights for Northern Ireland a provision along the lines of ‘everyone in Northern Ireland is equal before the law and has the right to the equal protection and benefit of the law’. Who could possibly object to such a provision?

39. In the search for additional rights protection, as your Committee has already been informed, there is much to be learned in Northern Ireland from recent developments in Scotland and Wales. In the Republic of Ireland, too, there are some approaches to rights issues which could usefully be emulated here.

New Decade, New Approach

40. While the New Decade, New Approach agreement does not contain a commitment to a Single Equality Bill, it does contain language that is distinctly sympathetic to a human rights approach going forward. Thus, one of the Executive’s five priorities is ‘Delivering a fair and compassionate society’, which is exactly what a human rights approach to policy-making aims for too. Amongst the commitments listed under this priority are:

-         implementing an anti-poverty strategy

-         developing robust strategies and actions for ending sectarianism

-         enhancing investment and agreeing a target for social and affordable home starts

-         extending welfare mitigation measures beyond March 2020

-         implementing a redress scheme for victims and survivors of historical abuse

-         publishing a strategy on childcare

It cannot therefore be argued that the Executive is against the very idea of human rights. 

41. The New Decade, New Approach agreement also states:

‘The parties have agreed that the institutions [of government] should be reformed on the basis of good faith, trust and mutual respect… Reconciliation will be central to the Executive’s approach and there will be a focus on building a united community in a way that has equality and mutual respect to the fore… [The parties] affirm the need to encourage and promote reconciliation, tolerance and meaningful dialogue between those of different national and cultural identities in Northern Ireland with a view to promoting parity of esteem, mutual respect, understanding and cooperation. These principles will be reflected in legislation.’ (Pages 13-15, emphasis added.)

A Bill of Rights would be an ideal location for those principles to be reflected in legislation.

Brexit

42. According to the New Decade, New Approach agreement (page 38) your  Committee is to receive advice from experts who, amongst other things, are to review and make recommendations on how the UK’s withdrawal from the EU may impact on the ‘particular circumstances of Northern Ireland’. Without pre-empting that advice, it is worth noting that Article 2(1) of the Protocol on Ireland / Northern Ireland to the EU-UK Withdrawal Agreement provides as follows:

‘The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.’

Annex 1 then lists four European Directives relating to equal treatment between men and women in matters of social security, access to and supply of goods and services, matters of employment and occupation, and engagement in activities in a self-employed capacity. The list also includes a Directive on equal treatment between persons of different racial or ethnic origin and a Directive establishing a general framework for equal treatment in employment and occupation. These Directives have all been transposed into the law of Northern Ireland.

 To help guarantee the permanence of the legal protections set out in the Directives, it would be worth considering whether they should also be referred to in any Bill of Rights which is enacted for Northern Ireland. 

Conclusion

1. 44.  In summary, my position is that there should be a Bill of Rights for Northern Ireland which is restricted to supplementing the Human Rights Act 1998 with provisions that address the remaining issues that led in the first place to a call for a Bill of Rights in the Belfast (Good Friday) Agreement. Such a document is much more likely to gain the approval of the British government and therefore to be enacted at Westminster. It is also more likely to be agreeable to the Irish government. Additional rights issues could then be tackled through separate pieces of legislation tabled and debated within the Assembly. A priority in that regard should be an Equality Bill, to bring the protections in Northern Ireland up to the standards which they have already reached in England, Wales, Scotland and the Republic of Ireland. This managed approach to the development of human rights in Northern Ireland seems to me to be the most likely to be successful in satisfying differing views over the necessity for and content of a Bill of Rights.

 

Annex

Article published in Fortnight, 50^th Anniversary Issue, September 2020

The On-going Bill of Rights Debate

Sad to relate, not a lot has happened on the Bill of Rights front in Northern Ireland since the last edition of Fortnight in 2011. Or, rather, quite a lot of campaigning has continued to occur, but a Bill of Rights seems almost as far off as ever.

When the UK’s coalition government set up a Commission in 2011 to look into whether there should be a Bill of Rights for the whole of the UK, one of the few things its members could agree about was that the distinctive Northern Ireland Bill of Rights process should not be interfered with by the Commission’s work. When the Stormont House Agreement came along in 2014, after yet another crisis period at Stormont, it presented an opportunity to take the Bill of Rights process forward. Yet, while the SHA dealt with many things – finance and welfare, flags and culture, parades, the past and institutional reform – it simply noted that there was still no consensus on a Bill of Rights. Tellingly, however, the parties to the SHA committed themselves:

to serving the people of Northern Ireland equally, and to act in accordance with the obligations on government to promote equality and respect and to prevent discrimination; to promote a culture of tolerance, mutual respect and mutual understanding at every level of society, including initiatives to facilitate and encourage shared and integrated education and housing, social inclusion, and in particular community development and the advancement of women in public life; and to promote the interests of the whole community towards the goals of reconciliation and economic renewal (para 69).

That statement could have been read as an agenda for what a Bill of Rights should contain if and when the parties were ever to agree on its detailed wording, but by the time of the Fresh Start Agreement in 2015 there was no further progress to report on the issue.

During the suspension of the Assembly following the resignation of Martin McGuinness in January 2017, the DUP and Sinn Féin almost reached an agreement in February 2018 on how to restore the institutions. The leaked version of the document they were discussing stated that the parties had agreed to establish an Ad Hoc Assembly Committee ‘to consider the creation of a Bill of Rights that is faithful to the stated intention of the 1998 Agreement in that it contains rights supplementary to those in the European Convention on Human Rights, which are currently applicable, and “that reflect the particular circumstances of Northern Ireland”’ (para 3.2). The proposed Committee was to be assisted in its work by a panel of four experts.

An actual agreement was not of course reached until two years later. In January 2020 the New Decade, New Approach document repeated the earlier provision almost word for word, but it called for a panel of five experts rather than four and it required the Committee to report by February 2022. The Ad Hoc Committee was established in February 2020 and began taking evidence from witnesses in May.

So, what are the chances of a consensus being reached this time given that it has been so elusive in the past? There are perhaps three reasons for hope. First, none of the political parties wants to return to a situation where the Assembly and Executive are not operating. The three-year hiatus in devolution between 2017 and 2020 was especially harmful to the two big parties, whose share of votes in elections fell, but politicians in general were vilified by the electorate for not sinking their differences and getting on with making this place work. Representatives appreciate better than before that what makes people vote for them is the perception that they get things done, that they are cooperative rather than intransigent. It may not be the case that failing to agree on a Bill of Rights will cause the Executive to collapse, but success in achieving one would still constitute a benefit for all sides. It would demonstrate a can-do mentality.

A second reason for optimism is that it is now clearer that a Bill of Rights should not be set up to fail. It needs to be a document that deals with principles and processes rather than with absolute guarantees. In so far as absolute guarantees can ever exist, especially in a country where the dominant constitutional principle is parliamentary sovereignty, they are already provided for by the Human Rights Act 1998. Even then the European Court of Human Rights can decide that a limitation to those rights is justified. The Northern Ireland Human Rights Commission provided detailed advice to the UK government in 2008 on what should be contained in a Bill of Rights, but even if Westminster had immediately turned that advice into binding law the Bill would not have resolved either of the two most pressing human rights issues that came to the fore after 2008 – same-sex marriage and the decriminalization of abortion. The draft advice was silent on those issues. It also said very little about language rights and nothing at all about integrated education. It was parliamentary sovereignty and the Supreme Court’s interpretation of the Human Rights Act that brought same-sex marriage and legalized abortion to Northern Ireland, not a Bill of Rights.

Thirdly, the combined effects of Brexit and the Covid-19 crisis mean that everyone in Northern Ireland feels a little less secure now than they have been in recent years. We do not yet know what the economic consequences of Brexit are going to be: perhaps Northern Ireland will actually benefit from being in two customs unions? Nor do we know the political consequences: has it made a border poll more likely and would such a poll lead to a united Ireland? If it did, would unionists’ rights be fully protected under an Irish Constitution which, at present, does not include protection for group rights? Is that of itself a reason for creating a Bill of Rights for Northern Ireland, remembering that the Belfast (Good Friday) Agreement requires the Republic to mirror whatever is enacted on human rights for the North?

Covid-19 has been an existential shock of a different order. It has demonstrated that a regional government is just as competent at managing a pandemic as larger governments in Britain and Ireland. The mortality rate here per head of population, though still frightening, has been significantly lower than elsewhere in these islands. It has also shown the very high regard in which the NHS is held in the North, with even republican neighbourhoods regularly clapping its workers and displaying rainbows. Who, now, would argue against including a right to free health care at the point of delivery in a Bill of Rights for Northern Ireland? That right already exists in ‘ordinary’ legislation, so why not elevate it to the status of a right such as we find in the Human Rights Act, like the right never to be subjected to inhuman or degrading treatment?    

In his recent biography of Kevin Boyle – human rights lawyer, academic and activist (Are You With Me?, The Lilliput Press, 2020) – Mike Chinoy provides a detailed exposition of how the thinking of  Boyle and his co-author Tom Hadden  fundamentally influenced the wording of the Belfast (Good Friday) Agreement. What is said in that Agreement about a Bill of Rights ‘supplementing the rights in the European Convention and dealing with the particular circumstances of Northern Ireland’ flows directly from Boyle and Hadden. At private talks held with political parties near Kells in 1994 Boyle and Hadden also suggested some ‘add-ons’ to the ECHR, such as the right to self-determination, the right to communal recognition and protection, the right to education and language rights (specifically integrated education and the Irish language), the right to be Irish and British or both, and the right to have limits imposed on emergency laws.

Unfortunately, since 1998 politicians have not been able to agree about what the particular circumstances of Northern Ireland are. It is reminiscent of the old adage that if you think you know the answer to Northern Ireland’s problems you don’t understand the problems. Surely the most obvious particular circumstance is that Northern Ireland is disputed territory with a divided community? Supplementary rights should first and foremost focus on that reality, since the ECHR says virtually nothing about such circumstances. It does not mention concepts such as a culture of tolerance, mutual respect and mutual understanding, initiatives to encourage shared and integrated education and housing, community development, the advancement of women in public life or the promotion of reconciliation. It is primarily those concepts which are faithful to the stated intention of the 1998 Agreement. The new Ad Hoc Assembly Committee could do worse than seek to come up with clauses on those issues before it starts considering further add-ons which are particular to many more societies than Northern Ireland. Such add-ons could more efficiently be addressed at a different time by specific pieces of Assembly legislation.

Brice Dickson