Adrienne Reilly – Protection of Rights Coordinator at CAJ and human rights trainer, consultant and activist
The Commission on the UK Bill of Rights (CBR) set up in March 2011 to investigate the creation of a “UK Bill of Rights”, delivered its much anticipated report, ‘A UK Bill of Rights: The Choice Before Us” to the UK Government in December 2012. The main report, Volume 1, addresses a wide range of issues including the International and European human rights landscapes; arguments for and against a Bill of Rights; Devolution and a UK Bill of Rights amongst other things. It is supplemented with eight papers from Commission members, setting out their divergent views on a UK Bill of Rights. Volume 2 of the report is a list of annexes including a consultation summary and examples of Bills of Rights. Whilst the ongoing British angst and fixation with ‘in or out’ of the EU rumbles on, it was worth taking time to consider these large reports in relation to where in fact Northern Ireland was placed specifically in relation to the UK Bill of Rights debate, but also in relation to the broader British human rights sweep.
The substantive contribution from both reports is the ‘Overview’ in Volume 1, which is designed to be self-contained, although the full report conveys the Commissions analysis and conclusions in their entirety. On full reading it is evident that this was by no means a consensus report, or indeed a two-way majority/minority split. The title in the Overview of ‘The Conclusion of the Majority Views’ is in fact misleading. By and large, the ‘majority’ opinions were variations on a theme of a UK Bill of Rights. They included different and diverse opinions, with no agreement on what form a UK Bill of Rights might take or what it might look like. In fact the consensus minority view (Baroness Kennedy QC and Philippe Sands QC) noted that “the majority has failed to identify or declare any shortcomings in the Human Rights Act or its application” in the UK Courts. In short, the CBR has no definite answer as to whether or not there should be a UK Bill of Rights, or what it might look like. Noteworthy, however, is the fact that contributors to both consultations expressed overwhelming support for retention of the Human Rights Act, although the ‘majority’ of Commissioners stated that they “have not felt bound by the outcomes of the consultations in terms of purely numerical majorities.”
Bill of Rights for Northern Ireland is part of the ongoing Peace Process
For once a decision in relation to Northern Ireland seems to have been the least controversial, with Commission consensus in relation to recognition of the separate and ongoing Northern Ireland Bill of Rights process. The Commission recognized that the outstanding guarantee emanating from the Belfast/Good Friday Agreement is an integral part of the peace process. Many NGO’s from Northern Ireland and beyond outlined the political, legal and constitutional positioning of the Northern Ireland Bill of Rights in relation any UK Bill of Rights in an evidence session in Belfast in 2011. Similarly submissions to the CBR outlined the genesis of, and cross-community buy in for, this explicit guarantee in the Belfast/Good Friday Agreement, an International Peace Agreement, to which both the British and Irish Governments are guarantors as cosignatories.
Fortunately, the Commission members clearly understood and fundamentally grasped the gravity of the situation, stating:
“We are acutely conscious of the sensitivities attached to discussion of a UK Bill of Rights in the context of Northern Ireland. In particular we recognize the distinctive Northern Ireland Bill of Rights process and its importance to the peace process in Northern Ireland. We do not wish to interfere with that process in any way nor for any of the conclusions that we reach to be interpreted or used in such a way as to interfere in, or delay, the Northern Ireland Bill of Rights process.” (Italics added)
General observations: The Constitutional Dimension – UK Bill of Rights in relation to devolution in Northern Ireland
The Commission noted that at the start of their work not all of them fully understood the full implications of devolution in their terms of reference. However, this rapidly became clear and they grasped that perceptions of issues on which they were asked to advise, and indeed of their remit and legitimacy, were very different among those whom they met in Northern Ireland, Scotland, and Wales. They noted that calls for a UK Bill of Rights were emanating from England and that there was very little criticism of the European Court of Human Rights or the Convention from other parts of the UK. The Commission was also very clear that any future debate on a UK Bill of Rights must be acutely sensitive to issues of devolution and must involve the devolved administrations
No issue of ‘ownership’ in Northern Ireland
The Commissions ‘majority’ conclusions noted that the lack of public understanding and ‘ownership’ of the Human Rights Act and the European Convention on Human Rights is the most powerful argument for a new constitutional instrument. The ‘minority’ report noted that it was “…abundantly clear that there is no ‘ownership’ issue in Northern Ireland, Wales and Scotland (or large parts of England), where the existing arrangements under the Human Rights Act and the European Convention on Human Rights is not merely tolerated but strongly supported.”
No Advisors from Northern Ireland
Sadly, the Commissioners stated as a “matter of regret that the devolved administration in Northern Ireland did not nominate Advisory Panel members who might have similarly (like Scotland and Wales) helped us”. CAJ and others expressed concern about this with the Office of First Minister and Deputy First Minister (OFMdFM) and relevant parties, but no conclusive reason as to why there were no appointments was ever disclosed. This could be interpreted in a number of ways. One, that the Northern Ireland devolved administration accept the literal legal interpretation of the Belfast/Good Friday Agreement as expressed last September by First Minister Peter Robinson that the “responsibility of a Bill of Rights lies with the UK Government.” Or two, that they did not want to be challenged by the UK Bill of Rights Commissioners in relation to an outstanding constitutional guarantee of an international peace agreement, that has overwhelming support from its electorate, and to be questioned as to ‘why not and when?’ it was going to be fulfilled.
(Un)Incorporation of the European Convention on Human Rights and Northern Ireland
Clearly the Commission went beyond its terms of reference in relation to the question in its second consultation as to ‘what extent’ respondents believed that ‘the ECHR should or should not remain incorporated’ into ‘domestic law.’ This was raised by a number of organizations local NGO’s. It would have been useful if the Commission had explicitly addressed this regarding the devolution framework in their ‘Overview’ analysis also, given the ongoing concerns around the call from the UK Government for a referendum on the ECHR. Any such move without an agreed Bill of Rights and incorporation of the ECHR in Northern Ireland would again have complex constitutional and legal implications for human rights protections guaranteed in the Belfast/Good Friday Agreement.
Time to take the Northern Ireland Bill of Rights forward
The overall report on a UK Bill of Rights raises more questions than it answers, however, it is crystal clear in relation to the Northern Ireland Bill of Rights process.
Some submissions to the CBR outlined that it would be a mistake for the UK government to await the next crises in the political process in Northern Ireland to discharge its commitments to take forward a Bill of Rights provided for in the 1998 Belfast/Good Friday Agreement. Indeed recent protests in relation to the Union Flag in Northern Ireland is part of the fruition of unrest associated with some of the unfinished business of the peace settlement, in particular a Bill of Rights with concrete socio, economic, civil and political protections.
Compounding this is further human rights unsettlement in Britain. Focus on a proposed referendum in relation to the European Court of Human Rights, ongoing concerns around the changes to the Human Rights Act and ‘ownership’ of human rights in general, could have constitutional implications for the outstanding human rights protections in the Belfast/Good Friday agreement unless bedded down with domestically.
The UK Bill of Rights Commission has understood and accepted Northern Ireland’s constitutional and legal position on a Bill of Rights within the Belfast/Good Friday Agreement. Just as importantly the CBR acknowledged overwhelming cross-community support. There is now ‘no choice before us.’ What really is there left to say, except surely the time has come for the Northern Ireland Office and the UK Government to finalize the Bill of Rights for Northern Ireland.