Ad Hoc Committee on a Bill of Rights: Briefing note
The Bar of Northern Ireland
Introduction
1. The Bar Council is the representative body of the Bar of Northern Ireland which comprises 650 self-employed members who operate on an independent referral basis. Members of the Bar specialise in the provision of expert independent legal advice and courtroom advocacy, serving the administration of justice and upholding the rule of law across this jurisdiction. Northern Ireland's independent referral Bar represents one of the cornerstones of our legal and justice system with an important history of providing expert impartial representation across a range of areas. This short briefing note provides some background information for the Ad-Hoc Committee from the perspective of the Bar on the topic of 'justiciability and enforcement' in relation to a Bill of Rights for Northern Ireland.
Role of the Courts
2. It is worth considering the role of the Courts in Northern Ireland more broadly in relation to any Bill of Rights. The Court is essentially an accountability mechanism of last resort and it should therefore be viewed in relation to how it can perform a role in holding the other branches of the state to account. Ultimately it will be for the Committee and the Assembly to decide on what a Bill of Rights should seek to achieve and the degree to which the court should be involved in this. However, the creation of economic and social rights via a Bill of Rights will not in itself necessarily result in these rights being easily justiciable; it will be the underpinning of this with the creation of any associated political obligations which may result in the rights becoming legally consequential and justiciable. It will then be the proper constitutional role of the Court to ensure that the powers of the Executive and the Legislature are exercised in accordance with the law.
3. Furthermore, there are case examples in the context of Northern Ireland which demonstrate the clear boundaries that exist between the Courts and the Executive whilst also highlighting that it will not be a straightforward task to make economic rights justiciable. They show that it is not the function of the Court to take decisions on questions relating to the Executive's budgetary arrangements and competing priorities; these matters often involve complex decisions taken in the context of a challenging economic backdrop. For example, the case of The Department of Justice v Bell (Patricia) and Police Ombudsman for Northern Ireland [2017] NICA 69 in which
Gillen LJ espouses a number of important principles at [19] in distinguishing between decisions for the Executive and the Courts: "Normally, the question whether the Government allocates sufficient resources to any particular area of state activity is not justiciable... There should be little scope or necessity for the Court to engage in microscopic examination of the respective merits of competing macroeconomic evaluations of a decision involving the allocation of (diminishing) resources. These are matters for policy makers rather than judges: for the executive rather than the judiciary". In addition, the case of In the application by Brigid Hughes for Judicial Review [2018] NIQB 30 shows that the Court will be careful on the issue of expenditure of public funds even where a breach of fundamental rights under the ECHR has been identified. This case related to the provision of adequate funding for legacy inquests in which the Court found the breach and ordered the State to "reconsider" the question of additional funding.
4. It is worth noting that there have been some cases in England where the Courts have found against local councils for not meeting certain legally-enforceable service provision rights in the areas of education and social care even though this had a financial impact on the Councils which argued they could not afford it given the detrimental impact on other spending priorities.1 Much depends upon the wording of the statutory right; the tighter it is the more likely the Court will approach it as a matter of pure legal entitlement as opposed to a matter of discretionary executive branch decision-making which the Court should not be involved in.
5. It is also worth commenting on the importance of the role of the Court as a bastion of democratic accountability and protector of the unique constitutional arrangements in Northern Ireland's post-conflict society. The Committee will undoubtedly be aware of a number of judicial review cases in recent years which demonstrate the essential role which our Courts play in safeguarding the civil and political rights and protections afforded to all citizens under the Belfast Agreement 1998, incorporating the European Convention on Human Rights. For example, the lack of an Assembly and Executive between 2017 and 2020 often placed the spotlight on the Courts which may have served to create a misconception of judicial overreach in policy matters in the absence of Government. However, this was never the case with the court interpreting convention rights given effect by way of the Human Rights Act 1998 within the boundaries of conventional legal limits as rights with sufficient obligations attached as to make them justiciable in a Court. The political narrative at times in the UK surrounding the case of Cherry/Miller (No 2) [2019] UKSC 41, and the associated Independent Review of Administrative Law2, relating to the boundaries as to what is justiciable and what is not in the courts has perhaps also served to further misconceptions around the supremacy of the Court over the Executive and Legislature.
6. One example is the case of JR80's Application [2019] NICA 58 involving an application brought by a survivor of Historic Institutional Abuse who successfully challenged the failure to implement a redress scheme as recommended by the final report of the Historical Institutional Abuse Inquiry delivered in January 2017. The Court of Appeal concluded that the Executive Office had the power to implement the scheme under the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 at [118], which permitted civil servants to act in the absence of Ministers (a form of governance which the court considered "neither democratic nor appropriately accountable" at [93]).
7. It is also worth noting the comments of McCloskey J in his leave decision (see [2018] NIQB 32 at [13]): "One of the consequences of the [indefinite moratorium afflicting the Executive and legislature of Northern Ireland]... is that members of the Northern Ireland population are driven to seek redress from the High Court in an attempt to address aspects of the void brought about by the absence of a functioning Government and legislature... While the spotlight on the implementation of the HIA redress proposals should be firmly on the Northern Ireland Executive and Assembly it is, rather, on the courts". Therefore the Courts have been involved in contentious issues in Northern Ireland's recent history due, in part, to the periodic vacuums in power. It is worth bearing in mind generally that the Courts cannot decide political questions but the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, does not necessarily mean that the court will not consider it; essentially it is the legal effect of political decisions that the Court will concern itself with typically by way of judicial review.
8. The Committee will recognise the need to be very careful in the drafting of any new Bill of Rights for Northern Ireland which seeks to give effect to socio-economic rights. A well-crafted, tightly drawn and clear document will reduce the likelihood of any dispute as to what it provides for and accordingly of any need for judicial determination of such disputes. Nevertheless, it would be fair to assume that the limits of any new rights, and how they should be applied in any individual set of circumstances, would be tested in our courts on a regular and ongoing basis. That is the experience currently in respect of existing rights under human rights law and public law; there is every reason to expect that to become the norm in respect of any newly created legal rights.
9. In addition, it is worth observing that litigants on occasion try to turn to the courts
because they are unable to prevent policies with which they disagree from being implemented or because they do not believe that they can garner sufficient political support for a particular cause; there is a risk that a broadly drafted Bill of Rights could see some litigants attempt to recast challenges to policy on the grounds of reasonableness with a view to circumventing the political process and achieving their goals by another route. However, the Bar considers that the Courts would likely be reluctant to become involved in such matters and, reiterating the point highlighted above, making socio-economic rights justiciable in themselves is not a straightforward matter.
10. However, at this point it seems appropriate to consider the various remedies already available presently to the Courts in judicial review cases which the Committee may be interested to consider further in connection with socio-economic rights. As explained above, when the Court intervenes in civil and political rights determination it provides an important accountability check on the Executive or Legislature. One way in which this can occur is to use different types of remedies and this means that the Court is therefore an important part of a multi-institutional dialogue focused on ensuring accountability rather than any transfer of political power to the judiciary.
11. All remedies in judicial review cases in this jurisdiction are discretionary and can be tailored to suit the particular needs of the case. Order 53 of The Rules of the Court of Judicature (NI) 1980 details the flexible, practical and effective remedies which the court can direct, namely an order of mandamus, an order of certiorari, an order of prohibition, a declaration, an injunction and/or damages. The court also has the power to make the following: an award of damages (Order 53, rule 7), an order remitting the decision to the lower deciding authority for reconsideration or reversing or varying the decision (Section 21 of the Judicature (NI) Act 1978), an injunction or declaration concerning public office (Section 24 of the Judicature (NI) Act 1978), a substituted sentence in a criminal case (Section 25 of the Judicature (NI) Act 1978) and a declaration under the Human Rights Act 1998.
12. Therefore, where an applicant is successful, a Court has power, inter alia, to direct the respondent to take a particular substantive course, to quash the decision of the respondent, to prohibit the respondent from doing a particular act, to make an injunction, to award damages, to direct the respondent to take its decision again, to make a declaration or to grant no relief at all. The Court has a wide discretion in relation to the order of remedies and they are entirely flexible.
13. Furthermore, there is no requirement on the Court to grant any kind of remedy at all
even where an applicant has been successful. For example, where a court is of the view that the sole ground of relief established is a defect in form or a technical irregularity and no substantial wrong and no miscarriage of justice has occurred or no remedial advantage could accrue to the applicant, then the court has a discretion not to grant a remedy as per Section 18(5) Judicature (NI) Act 1978.
14. However, this discretion is not limited to cases where there is a technical irregularity. Indeed in all cases the Court has a wide discretion as to what remedy to grant and also whether to grant any remedy at all. The Court of Appeal decision of Credit Suisse v Allerdale Borough Council [1997] QB 306 saw Lord Hobhouse LJ describe this discretion: "The discretion of the court in deciding whether to grant any remedy is a wide one. It can take into account many considerations, including the needs of good administration, delay, the effect on third parties, the utility of granting the relevant remedy. The discretion can be exercised so as partially to uphold and partially quash the relevant administrative decision or act".
15. The experience of practitioners in this jurisdiction suggests that where a remedy is granted, success does not always result in the outcome that the applicant was seeking. It is extremely rare for the Court to make an order requiring a respondent to reach a particular substantive result. The furthest that the Court is likely to go is to order the respondent to re-take a decision lawfully.
16. The Committee might also wish to consider the context of the Pre-Action Protocol for Judicial Review in NI3 which has a specific section on 'Non – Litigation Options' and the alternative remedies that are already available prior to judicial review and there is an expectation from the Court that these options will have been exhausted with proceedings as a 'measure of last resort'. A judge can also expressly encourage the parties to a judicial review to consider exploring consensual resolution through a mediation/alternative dispute resolution mechanism if appropriate, particularly at the leave stage. The Committee may be interested to note the comments of McCloskey J in Edmunds v Legal Services Agency for Northern Ireland [2019] NIQB 50 at [26]:
"ADR has also featured in the Practice Directions and protocols of the senior civil courts of Northern Ireland for many years. Notably, the breadth of its potential as a mechanism for the consensual resolution of disputes other than via litigation is reflected in its recognition in the first of the Judicial Review Court Practice Directions, published as long ago as 2005. The experience in this court during the past two years has been that in every case where the court has exhorted ADR two consequences have followed. First, the parties have invariably responded positively. Second, consensual resolution has been achieved in every case".
Models of Enforceability
17. The Committee in its discussions to date has touched on a number of possible models of enforceability in relation to economic and social rights. It is evident that there is a continuum of possible options, ranging from pre-legislative scrutiny by the Assembly and the progressive realisation of a limited range of rights through legislative and other measures through to fully justiciable and legally enforceable rights. A number of Scandinavian countries, such as Finland, already protect social and economic rights as legally enforceable rights in their constitutions. The Bar recognises that the NI Human Rights Commission's advice to the Secretary of State going back to 2008 contained a full range of recommendations for new substantive rights and took the position that these would be capable of judicial enforcement within our existing Court structure.
18. Pre-legislative scrutiny is something which is highly desirable and the Committee should give serious consideration to including this in any model for a Bill of Rights. Any move to place responsibility for dealing with socio-economic rights on politicians could represent an effective way of reminding Ministers of their obligations to implement these in Northern Ireland. One possible way of doing this might be to establish an additional Assembly Committee charged with regular pre-legislative scrutiny of Bills for compliance with such rights. For example, there is some pre- legislative scrutiny in the UK Parliament conducted by the Joint Committee on Human Rights. It can also scrutinise the Government's response to court judgments concerning human rights and the UK's compliance with its human rights obligations contained in a range of international treaties. Alternatively the Committee could consider embedding consideration of compliance with human rights across all existing Assembly Committees which could be supported through legal advisers. However, whilst pre-legislative scrutiny may be useful in this area we would caution that it will always be difficult to predict the ways in which any new socio-economic rights could be legally challenged in a Court.
19. The example of the South African Bill of Rights is another one which may also be particularly interesting for the Committee to consider as it contains a number of social and economic rights, such as rights to housing, health care, food, water and social security, but qualifies the justiciability of those rights by providing that "the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation" of these rights. The South African Constitutional
Court has also used the administrative law concept of reasonableness to ensure that the Courts will only very rarely intervene to uphold social and economic rights.
20. Under the South African model, individuals do not have legally enforceable rights against the State to full protection of the rights recognised by the Bill of Rights. There is some scope for a judicial role in enforcing the constitutional provisions but the Court has rejected an approach which would require the state to provide certain minimum standards of economic and social rights to all as it recognises that the Courts are ill-equipped to adjudicate on issues where Court orders could have multiple social and economic consequences for the community which, as referenced above, is something which the Committee should bear in mind in relation to the Courts in NI. The South African Bill of Rights has also simultaneously recognised that there can be a restrained role for the Courts in requiring the state to take measures to meet its constitutional obligations and to subject the reasonableness of those measures to evaluation demonstrating that the Courts can in theory have some limited role in relation to social and economic rights. Furthermore, there are a range of other international models of practice which can be found in the presentations and papers already provided to the Committee by various academics.4
21. In the context of Northern Ireland, any judicial role will ultimately be determined by the way in which the relevant part of any Bill is drafted. There is undoubtedly scope for a general preamble to the Bill detailing selective rights and the Committee might decide that this should only contain aspirational principles that are not legally enforceable. However, there is also some risk inherent in this approach given that citizens may become disillusioned if these rights only exist on paper but those in the community cannot exercise the right to an individual remedy. In practice, if we accept that aspirational policy goals are inadequate, then the question may then become one around appropriate mechanisms through which access to justice can occur and a vision for what an effective remedy might mean in the context of Northern Ireland for any violation of rights under a new framework.
Conclusion
22. In summary, the Committee's ongoing public survey on a Bill of Rights is a positive development and one which will hopefully allow for an open and frank discussion around the possible advantages and disadvantages of developing a Bill of Rights for Northern Ireland. It is vital that the Committee develops a clear and coherent approach towards what it ultimately hopes to achieve through such a Bill before further deciding on any model which gives effect to this.
23. Socio-economic rights engage in complex areas of policy relevant to the allocation of state resources and if members wish to give legislative effect to a Bill of Rights it will necessitate the Committee undertaking a careful exploration of various forms of incorporation, justiciability and potential frameworks to adequately facilitate access to effective remedies in the context of Northern Ireland. The incorporation of socio- economic rights in Northern Ireland requires a multi-institutional approach engaging each branch of Government - the Executive, Legislature and Courts - in decisions impacting on these rights. The elements required to address this issue are varied, inter-connected and structural and, as evidenced by the examples above, this can take place through a variety of pathways which are not mutually exclusive and already form part of the various building blocks used in different constitutional models showing that international human rights law can be embedded in multiple ways.5
Foonotes
1 For example R (KE and others) v Bristol City Council [2018] EWHC 2103 which involved a successful judicial review challenge to a decision by Bristol City Council to set a schools' budget which included a reduction in expenditure of approximately £5 million for special educational needs.
2 See the Bar Council of Northern Ireland's response to the Review
3 Judicial Review Practice Direction 03/2018, Appendix 1
4 Succinct information provided in this paper on international models is a useful overview: Dr Katie Boyle, 'Models of Incorporation and Justiciability for Economic, Social and Cultural Rights', Scottish Human Rights Commission, November 2018
5 Ibid
