Charter debate: lessons from Northern Ireland

Brice Dickson was a key speaker at the Seminar in Cork on Saturday. His presentation looked at three things: lessons to be learned from the Bill of Rights debate in Northern Ireland; what quality of relationship might exist between a future charter and a future Bill of Rights; and some concluding thoughts on the challenges it might throw up. He was speaking in a purely personal capacity, and no way reflects the official thinking of the Human Rights Commission.

Note: A summary of day will follow.By Brice Dickson

Saturday was a good day to hold such an event on the Charter, it being the fourth anniversary of the commencement of the Human Rights Act in the UK.

I want to focus on two things: (a) the lessons that could be learned for the Charter of Rights process from the Bill of Rights project in Northern Ireland and (b) the potential relationship between the Charter of Rights and the Bill of Rights.

Lessons that could be learned

Do not underestimate the range of interested organisations and individuals who will have views on what should be contained in the Charter of Rights; handling such vies will be a big logistical task;

When the consultation gets going in earnest there will be orchestrated campaigns by particular factions, e.g. on the right to life (the anti-abortion lobby), the right to citizenship, the rights of children, etc.

The politicians and the two governments will be political about the Charter: they will do and say what is politically expedient rather than what is right from a “rights” point of view.

Consider recent events – the UK government’s delay in appointing new Commissioners to the NI Commission and in responding to our report on our powers, the awarding last week of an extra £9 million to the PSNI for investigations of unsolved murders, the decision to hold an inquiry (but perhaps not a wholly public one) into the murder of Pat Finucane, etc.; these acts or omissions have all been timed to suit the political environment of the day.

The two Commissions may be deprived of the ownership of the process of developing the Charter because it may be deemed to be too big a job for the Commission, just as some appear to think that the Bill of Rights project in the North is too big for the NI Commission alone and ought to be given to others to handle.

The NI Commission is very supportive of a political Roundtable or Forum being established but the Commission needs to retain the duty given to it by the Agreement to provide advice to the British government (which will not be doing within the next six months at least).

The issues being dealt with are very difficult in themselves: What rights should be included in the Charter? How should those rights be enforced? Should a special court be created? How should the balance be struck between general clauses and specific clauses in the Charter, and between legalistic language and more accessible language?

If consultees found it hard to comment on Bill of Rights proposals in the North they will find it even harder to comment on Charter proposals because the Belfast (Good Friday) Agreement gives such little guidance on what the Charter should contain.

The Charter will have a cross-jurisdictional quality (certainly North/South, but unionists may also want it to have a West/East dimension). The Charter will lie on top of existing protections, not forgetting the role of the European Court of Human Rights for cases from both the UK and Ireland, the role of the UN’s Human Rights Committee for Ireland and the role of the UN’s Committee on the Elimination of Discrimination Against Women for the North.

The relationship between the Charter and the Bill of Rights

The NI Commission wants the Bill of Rights to have a status similar to that of the Human Rights Act – a higher law, in the form of a Westminster Act, against which all past and future laws have to be measured. The Charter could have a similar status, allowing other laws to be declared incompatible (in the North) or unconstitutional (in the Republic).

Instead of being a set of overriding rights the Charter could be a set of principles and/or values governing the interpretation of the Bill of Rights and of the Republic’s laws, just like the European Convention is under both the Human Rights Act 1998 and the European Convention on Human Rights Act 2003.

The European Court of Human Rights will always be there to “trump” what is decided under the Bill or the Charter.

In conclusion

I share the scepticism of Donncha O’Connell and Rachel Murray and am personally tending towards favouring Model A of the three options contained in the Commissions’ pre-consultation document issued last year.

It’s important to note that the Agreement does not require the consent of democratic political parties – it merely requires them to be allowed to sign the proposed Charter. But the mention of such parties suggests that the Charter should focus on political rights, perhaps those referred to in paragraph 1 of the same section of the Agreement such as the right to free political thought and the right of women to involvement in the political process.

Provided there is the Human Rights Act and the Bill of Rights in Northern Ireland, and the Constitution and the European Convention on Human Rights Act in the Republic, and provided the principle of equivalence is complied with as per paragraph 9 of this section of the Agreement, the added value which a Charter might bring is to provide a list of principles which will require the political parties to behave in a better way than some of them have up to now.

It’s not just that they should cut any links with paramilitary organisations but also that that they should agree to abide by international human rights standards if and when they are in government and that they should (perhaps) make themselves available for election in both parts of Ireland (e.g. in the North no-one can vote for the British Labour Party because it refuses to authorise constituency associations there).

Lord Justice Sedley’s suggestion [in Cork] of a Charter which is “laconic, open-textured and general” is to me appealing, but I should stress that that is not the official position of the Northern Ireland Commission at this time; all bets are still on in that regard.