Written submission to the Ad Hoc Committee on Bill of Rights

 

“The basis of peace and stability in any society, has to be the fullest respect for the human rights of all people.”

John Hume

 

Introduction

1. The Assembly's Ad Hoc Committee on a Bill of Rights was established following the publication of the ‘New Decade, New Approach' document to consider the creation of a Bill of Rights for Northern Ireland. I have been asked to provide evidence as a negotiator in the Talks which produced the Good Friday Agreement. It seems that the Committee wish to consider the intent and import of the Agreement's wording in respect of a Bill of Rights including the phrase “to reflect the particular circumstances of Northern Ireland”.

2. The subjects of rights protections, equality and other safeguards were recurring themes in the various formats used in the 1996-8 Talks. I can recall many circular and repetitive exchanges with contributions ranging from contrary to constructive with cases made running from the absolutist to the abstract. It became clear that apparently shared language of general principle did not necessarily translate to an articulate consensus on the realities that such provisions needed to address or the requirements for their meaningful implementation.

3. It was not only in these discussions that participants, including the independent chairs and representatives of both governments, might use shorthand euphemisms like “the unique circumstances of Northern Ireland” or “unique context on the island of Ireland”. Such phrases were being used to avoid rehearsing descriptive lists of political, historical, geographic, constitutional, economic, social, cultural or other factors which might themselves be seriously contested or qualified from other perspectives. It was established that there was a particular aversion in one party to any such use of the word “unique”. After a number of voice-activated lectures from one participant objecting to the term, and waxing on contestable comparisons with other situations, most participants were conditioned to avoid the trigger word “unique”.

4. Words like “particular”, “specific”, “distinct”, “special” or “bespoke” were found not to bring the same vocalised objections or discordant response. So, when discussions on rights and safeguards involved context-specific arguments or possible applications beyond general international principles or instruments, it became usual and useful to refer generically along such lines as “the particular circumstances of Northern Ireland”.

5. Before further addressing the specific terms of paragraph 4 under the “Rights, Safeguards and Equality of Opportunity ~Human Rights ” heading, I should recall some other pertinent points about the context or construct of the negotiation which influenced the wording and informed its agreement by the participants.

 

Context and content of negotiations

6. Obviously, issues and ideas relating to rights and safeguards were going to be germane to the prospects and terms for agreement on new political arrangements. However, for similar reasons mentioned above, it emerged that it was difficult to concentrate on deliberating the possibilities and necessities for institutions in the respective Strands of the Talks if those discussions were going to be transfixed by conflicting arguments about historic rights experiences and perspectives. Excursionary arguments about the relevance or comparability of other situations and how given rights are acknowledged or asserted - or not - were not really conducive to positive exchange on institutional models in respective Strands.

7. An understanding grew that Rights, Safeguards and Equality issues could be best addressed in their own terms in ways that could transcend the detailed pace or shape of the institutional deliberations. However, it was also understood that many parties would want or need to properly cross-reference such rights and equality frameworks in any institutional models they might offer or accept. This allowed Mo Mowlam as Secretary of State (who delegated table time in the Strands to Minister of State Paul Murphy) to have a significant hand in the two “Rights, Safeguards and Equality of Opportunity” sections of the Agreement. One was under the sub-heading “Human Rights”, where the paragraph of special interest to the Ad Hoc Committee (paragraph 4) appears; the other was under the “Economic, Social and Cultural Issues” sub-heading.

8. Paragraph 4 is the third of three under “United Kingdom Legislation”. The British Government emphasised their commitment to legislate both for the ECHR in Northern Ireland domestic law and also for supplementary or additional rights, following consultation and advice by the new NIHRC. They explained that this was to offer a degree of entrenchment of a Bill of Rights which could neither be frustrated or violated by actions or inaction in the Assembly, Executive or North-South Ministerial Council.

 

Parties affirm on particular rights

9. Those three paragraphs in the name of the British Government are preceded by the collective affirmation by parties in paragraph 1.

“The parties affirm their commitment to the mutual respect, the civil rights and the religious liberties of everyone in the community. Against the background of the recent history of communal conflict, the parties affirm in particular:

• the right of free political thought;
• the right to freedom and expression of religion;
• the right to pursue democratically national and political aspirations;
• the right to seek constitutional change by peaceful and legitimate means;
• the right to freely choose one’s place of residence;
• the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity;
• the right to freedom from sectarian harassment; and
• the right of women to full and equal political participation.”

10. It might be noted that this collective affirmation of some specified basic rights, while acknowledging recent history, does not seek to ascribe significance to categories of rights that could be held to have been breached or neglected previously. While the political exchanges in the Talks included many references to various grievances, violations, injustices and threats, it was clear that an agreed text on rights would not include an upcasting list of wrongs. To even attempt such a catalogue of categories of rights variously denied or offended would have veered into contriving a symmetry of whataboutery or blame apportionment that would not assist the forward-looking purpose of an agreement. Paragraph 1 therefore affirmed collective positive commitment to a non-exhaustive list of rights in “from here on” terms.

11. Similar thinking extended to the decision not to try to specify or highlight in paragraph 4 any exemplary or defining particularities of Northern Ireland’s circumstances to be reflected in the work to be assigned to the Northern Ireland Human Rights Commission.

 

Shared acceptance and divergent emphases

12. Respective parties alluded to certain features or factors which they argued might render ECHR prescribed rights as either insufficient or possibly inappropriate in our context. Some of these points included references to the possible institutional modalities being discussed in the Strands negotiations, especially those in Strand One. It was also the case that the parallel Strand One discussions on “Safeguards” did not relate solely to inclusion and decision-making within the Assembly.

13. Unsurprisingly, there were divergent emphases on such points. Some expressed both reservations about the workability of the ECHR being accessible in local courts and a view that this development might outweigh the need for much to be added as “supplementary” rights other than possible confirmations around “group rights”. Others put more stress on both the value of the ECHR’s incorporation into domestic law and a strong need for additional rights to be articulated with particular reference to experience and outlooks here.

14. Discussion of “communal or group rights” at the time was coloured by contentions then current around parades, the right to parade or protest against parades, the balance of rights and how to affirm, adjudicate or mediate these. Parties couched arguments on possible expressions of “group rights” in terms that could be simultaneously assertive and tentative. The varying degrees of specification and qualification from parties around the possible articulation of “communal rights” was another factor that informed the wording of paragraph 4.

15. Another feature of these discussions was frequent reference to the possible relevance of other polities’ experiences, the adequacy or otherwise of international conventions or the significance of bespoke frameworks on rights and equality alongside a given political dispensation. As parties had benefitted from insight and exchange visits to South Africa, aspects of arrangements there were invoked by all parties but not to the extent of agreed applicability to the dispensation that might be agreed here.

16. So while there was a shared acceptance of the need for a codified tablet of rights to assure citizens and guide or oblige government, there was a spectrum of views on what the weight and range of its content might need to be. No party was opposing the idea of a Bill of Rights even if they were qualifying the arguments from other parties. I remember saying in the Talks that some seemed to want a Bill of Rights as a badge for the system while others wanted one as a shield for the citizen.

17. The British Government had a clear commitment to passing their Human Rights Bill for the whole UK but accepted that its terms would not have sufficient scope or detail to answer some of the particular rights questions being argued in the Talks. It was clear that they did not want debate on the Human Rights Bill distracted by very specific sensitivities relating to experiences or perceptions in Northern Ireland. There was some scepticism over the Bill’s provision that a primary act of parliament could be passed to override a given interpretation or application under the future Human Rights Act. This could be an easy path of derogation from the ECHR. The Government responded by arguing that a Bill of Rights for Northern Ireland, encompassing and supplementing the ECHR, and the commitment - in paragraph 33 of Strand One – that ”The Westminster Parliament...will... legislate as necessary to ensure the United Kingdom’s international obligations are met in respect of Northern Ireland;” would ensure degrees of entrenchment of such rights.

 

Reading paragraphs 2 & 4 together

18. I hope that the foregoing recollections of the inter-party discussions helps to explain why paragraph 4 was couched in such terms:

4. The new Northern Ireland Human Rights Commission...will be invited to consult and to advise on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland. Among the issues for consideration by the Commission will be:

• • the formulation of a general obligation on government and public bodies fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland; and
  • a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors.

19. Attention to paragraph 4 should not ignore the key terms of the preceding paragraph 2 relating to the ECHR which was to be an integral component of the composite Bill of Rights posited in paragraph 4. The logic and language of this paragraph point to the ECHR (including when encompassed in a Bill of Rights) being justiciable even to the extent of allowing the courts to overturn Assembly legislation:

“2. The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”

20. Even ahead of the arrival of the wider Bill of Rights as outlined in the Agreement, the import of the Agreement’s elevation of the ECHR is significant and unambiguous. It empowers the courts to strike down legislation passed by the Assembly, notwithstanding paragraph 4 of Strand One: “The Assembly – operating where appropriate on a cross- community basis – will be the prime source of authority in respect of all devolved responsibilities.”

21. I recognise that the remit of the Ad Hoc Committee pre-dates the publication of the Internal Market Bill. However, I feel compelled to observe that parts of that Bill mean that devolved decisions can be overturned by Whitehall ministers. The Agreement only provided for the courts, under the light of the ECHR or Bill of Rights, to overrule Assembly legislation but the Internal Market Bill confers such powers on Ministers of the Crown.

 

ECHR promises now being assailed

22. It also ousts full regard for - or recourse to – the ECHR in opposition to decisions so imposed. Obligations on public bodies, rooted in the Agreement, to adhere to the ECHR and the equality provisions in Part 7 of the Northern Ireland Act (1998) will be upended when powers in this bill are exercised. It will be illegal for public authorities to invoke adherence to such duties in distinction to, or defiance of, Whitehall decisions (including by secondary legislation). This erosion of the current and future applicability of ECHR rights seriously confounds the premise of the Ad Hoc Committee's remit in New Decade, New Approach.

23. It should be clear that I do not accept that it is a moot point if the Internal Market Bill (and other Brexit-related legislation) strains, injures or breaks essential precepts of the Agreement including the promised primacy of human rights protections. In the Declaration of Support that opens the Agreement “the participants in the multi-party negotiations...firmly dedicate ourselves to the achievement of reconciliation, tolerance and mutual trust, and to the protection and vindication of the human rights of all.”

 

Strand One key terms

24. I will not buy the false idea that a tyre is only flat at the bottom. The fact that the Agreement’s platform of rights protections was not to be a mere optional accessory inferior to political processes can be found in the direct cross-references in Strand One. Paragraph 5 of Strand One shows them to be directly relevant to the Agreement’s institutional construct under the heading “Safeguards”

5. There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including:

:

a) allocations of Committee Chairs, Ministers and Committee membership in proportion to party strengths;

b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission;

c) arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland;

d) arrangements to ensure key decisions are taken on a cross-community basis;

(i) either parallel consent, ie a majority of those members present and voting, including a majority of the unionist and nationalist designations present and voting;

(ii) or a weighted majority (60 per cent) of members present and voting, including at least 40 per cent of each of the nationalist and unionist designations present and voting.

Key decisions requiring cross-community support will be designated in advance, including election of the Chair of the Assembly, the First Minister and deputy First Minister, standing orders and budget allocations. In other cases such decisions could be triggered by a petition of concern brought by a significant minority of Assembly members (30/108)

e) an Equality Commission to monitor a statutory obligation to promote equality of opportunity in specified areas and parity of esteem between the two communities, and to investigate individual complaints against public bodies.

25. Paragraph 5 is not the only cross-reference to conformity with the ECHR/Bill of Rights and equality requirements in the Strand One text. The terms of 5(c) above are illuminated in paragraphs 11-13. It can be seen here that the intention of the petition of concern was not to be a veto but one means of allowing a special proofing and evidence procedure in the Assembly to protect equality and other rights. In the Talks, we used phrases like “joined up scrutiny” to explain how both the NIHRC and Equality Commission (and others) could be called to give key evidence and advice under that “special procedure”. These terms were drafted to ensure that it was a petition of concern rather than objection or veto. Some participants referred to the special procedure as a test of “put up or shut up” on valid concerns and their resolution.

11. The Assembly may appoint a special Committee to examine and report on whether a measure or proposal for legislation is in conformity with equality requirements, including the ECHR/Bill of Rights. The Committee shall have the power to call people and papers to assist in its consideration of the matter. The Assembly shall then consider the report of the Committee and can determine the matter in accordance with the cross-community consent procedure.

12. The above special procedure shall be followed when requested by the Executive Committee, or by the relevant Departmental Committee voting on a cross-community basis.

13. When there is a petition of concern as in 5(d) above, the Assembly shall vote to determine whether the measure may proceed without reference to this special procedure. If this fails to achieve support on a cross-community basis, as in 5(d)(i) above, the special procedure shall be followed.

26. It was an oversight and error in legislative haste when NIO Ministers failed to reflect the above provisions in the 1998 Bill. When this omission was pointed out, their shortcut remedy was to the effect that Assembly Standing Orders would make relevant provision which, I would argue, has not properly happened. I recognise that the Ad Hoc Committee may not have a remit to address this particular point, but it is crucially relevant to understanding the centrality of thinking about the ECHR/Bill of Rights to various dimensions of the 1998 Agreement.

27. If I allow that this failure in the 1998 legislation, was a genuine circumstantial mistake, I would not exonerate subsequent Ministers for the serial failure to follow through on the clear undertaking to legislate for a Bill of Rights. Introducing a precondition of all-party consensus for supplementary rights legislation housed with the ECHR in a Bill of Rights has been a deliberately self-frustrating test. It has no root in the Agreement itself. It is also confounded as a premise by the fact that other legislation consequential on the Agreement, or subsequent to it, have not needed all-party consensus eg the Policing Act, St Andrews Agreement Act etc.

 

Failure to legislate for Bill of Rights has current consequences

28. Successive Secretaries of State have tried to justify failure to legislate on a Bill of Rights by arguing that it might add little beyond what was already available under ECHR/HRA, the EU Charter of Fundamental Rights or other rights advanced in UK and/or EU law. Some of us have never believed that such arguments were valid while others might have concurred. However, nobody can now confer any currency on them.

29. The platform of EU-derived rights is being demolished by Brexit and the terms deliberately pursued by the British Government. The standing of the ECHR and HRA is being serially voided in Brexit-related legislation in Westminster including in the devolved ambit. Obligations on public bodies to uphold rights and to be held accountable in the courts are being supplanted by new powers to Whitehall which negate such obligations and vacate the promise of non-infringement in the Good Friday Agreement.

30. We cannot pretend that there is not a more fundamental threat in the longer term to the Human Rights Act and what remaining recourse to ECHR rights it confers in Northern Ireland law. The recent - and likely future - erosion of the rights-based guarantees of the Belfast Agreement has been facilitated by the failure to properly consolidate a Bill of Rights. A robust and articulate Bill might not just have conferred additional rights beyond the ECHR that are relevant to real needs and good purposes here. It would also serve to confirm that commitments on the ECHR and further protections are a cornerstone of the Agreement.

 

Closing observations

31. The Belfast/Good Friday Agreement comprises constitutional understandings, institutional undertakings and rights-respecting underpinnings. None of these should be underplayed and certainly not undermined. In the Agreement between the Governments of the United Kingdom and Ireland, Article 1, “The Two Governments:

(v) affirm that whatever choice is freely exercised by a majority of the people of Northern Ireland, the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions and shall be founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos and aspirations of both communities;

32. In closing with observations on particular implications for here of the fact of Brexit, and the impulsive imperatives being imposed by its drivers, I note the irony that the word “unique” has now come to such official standing. It has been used by both the EU and the UK Government in communiques, proposed agreements, the Withdrawal Agreement, the Protocol and related discussions - including on behalf of the Executive. Brexit has engendered new particularities and dimensions of uniqueness. Northern Ireland is unique within the UK by having a land border with the EU; unique in terms of citizenship rights of people born here - including EU citizenship; unique in being part of a cross-border governance ambit with an EU Member State via Strand Two; unique in terms of continuity Peace funding; unique in terms of special aspects of the Protocol; and unique as the only part of the UK that has a right to elect to re-join the EU without an Article 49 negotiation.

33. Such added points of uniqueness may not bring shared comfort to all. The uniqueness of a bespoke Bill of Rights, in the terms mandated in 1998, could offer some confidence to all at a time when so many are vexed with uncertainty and doubtful of the priority accorded to their rights, needs and interests both now and in the future.