A UK Bill of Rights, threat or opportunity for N.Irish human rights?

I do struggle with constitutional minutiae, so I’m looking for some help on this one from Slugger’s intellectual wing…

When we last left the “Bill of Rights for Northern Ireland” the government, in the form of  Hugo Swire, had said:

There remains a clear lack of consensus amongst political representatives in Northern Ireland on proposals for a Bill of Rights for Northern Ireland and the issue of supplementary rights for Northern Ireland more generally. I will continue to consider how best to address this issue but would urge all sides to work together to build consensus on how best to proceed.

I think it’s pretty safe to assume that there hasn’t been any great progress on that building of “consensus” over the last three months, which then makes this reply to a Lord Laird question from another government spokesperson, Baroness Garden of Frognal, intriguing:

The Belfast agreement states that the 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, and these additional rights, together with the ECHR, to constitute a Bill of Rights for Northern Ireland. The joint declaration of 2003 also states that, after consultation with the parties, the British Government are committed to bringing forward legislation at Westminster where required to give effect to rights supplementary to the ECHR to reflect the particular circumstances of Northern Ireland.

That’s not the intriguing bit obviously, just a summary of the legal position but since 2003 (or, more accurately, since Cameron coming to power last year) the UK’s relations with the ECHR have plummeted to such an extent that the UK, post the proposed United Kingdom Bill of Rights, may well opt out of the ECHR in an attempt to force changes that “would then allow Britain to opt back in”. That’s a Baldrickian scenario for another post but the upshot  is that a commission has been set up to consider whether the Government should bring in a “British Bill of Rights” and if the Conservative Ultras (helped by some more controversial ECHR-related cases ) have their way, there will indeed be a UK Bill of Rights.

How could that then affect a Northern Ireland Bill of Rights?

Back to Baroness Garden:

Separately, the Government are committed to the establishment of a commission to investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. The Government will make a Statement to Parliament on the terms of reference of the commission in due course. The Government believe that a UK Bill of Rights could be an appropriate legislative vehicle for any additional rights specific to Northern Ireland.

It’s on that last sentence where I’m looking for expert interpretation; I read that as meaning the NI Bill of Rights could be a part of a wider UK one, not a separate standalone.

 If so, would that still meet the terms of the Belfast Agreement (i.e. “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”)?

I’m not asking whether it would be a commonsense, workable alternative; I would have certain reservations however, on the whole, I think it could be.

The more important question I would like help with here is whether it’s a legally possible alternative?

  • Oneill The overall difficulty I have with the idea of any sort of bill of rights is that it requires a written constitution otherwise we can only be talking about glorified legislation, ie, “The Government believe that a UK Bill of Rights could be an appropriate legislative vehicle…”

  • What exactly have the full and part time members of the Human Rights Commission been doing for the past number of years?
    I attended a fringe meeting at the SDLP Conference where one of their members (Colin Harvey) was in a bit of a tizzy that it might all fall apart and wanted the SDLP to take up the slack. They have apparently a good record on human rights.

  • joeCanuck

    They have apparently a good record on human rights.

    I think Christy would, with some justification, claim otherwise.

  • I know some people think that the SDLP have an exaggerated record on human rights but I never heard anyone claim they had a bad record.
    Certainly Colin Harvey didnt seem to think that.
    Nor did the two others from the Human Rights forum who turned up to make their pitch for a Bill of Rights.

  • Christy,

    If I had to take my chances between closely-defined legislation and a woolly constitution I’d be relying on the former each time.

    Bills of Rights need to be practical, tied in with legislation which can be enforced and I think this is where our local example with its unrealistic wish list missed the point.

  • Oneill. I follow that but not entirely at ease with it, with time any BoR’s would become ‘closely defined’ with case law. There is benefit either way.

    fitzjameshorse1745 “They have apparently a good record on human rights.”

    Really can you provide examples? What I do know is that they do not understand the concept of the right to a fair trial, they have suggested to me that the 1998 Human Rights Act was not applicable in 2002, of their 1.6Million budget a mere 60k is allocated to its legal committee to spend wisely on the ‘exceptional’ cases which may slip through its very high threshold of what constitutes as aviolation of human rights.

    Although they are a public body with statutory status they conduct themselves as an academic dept or NGO and are none too pleased when members of the public approach them for assistance…

    Colin Harvey is not a reliable source on how he and his collegaues have conducted what is effectively an academics diners club.

  • I agree absolutely……an academic diners club with opportunities for advancement, a place for failed politicians who lose or who cant win seats, a pension fund with the prospect of a Lords seat or some other bauble.
    A waste of time.
    While the various too many bodies in the golden halo in the Human Rights Consortium are actually interested in a Bill of Rights, I find that real people dont care much.

  • fitzjameshorse1745 Maybe the reason why “(Colin Harvey) was in a bit of a tizzy that it might all fall apart…” is because they (Commissioners) are approaching the end of their terms –with nought to show for all the fun and few are under any illusion about how they ran the HRC (him being a Professor of HR Law to boot).

    I find it astonishing that the NIHRC actually does not know or understand a number of Convention rights!? Specifically Articles 6 and 10 completely baffle them.

    Oneill “the UK’s … may well opt out of the ECHR in an attempt to force changes that “would then allow Britain to opt back in”. If that were to occur then I would still be a little cautious about any bill of rights –between common law and current hr law just about everything is covered, even if lawyers had to be a little creative on occasion. The real danger is duplication of protections that complicate and make nonsense of reason, that is of no use to anyone.

    On the other hand if the UK were to pull out of the ECHR –then it might be more relevant and important that a proper BoR’s initiate as replacement. If that were to happen then I would be cautious about any ‘opting’ back into the ECHR.

  • “On the other hand if the UK were to pull out of the ECHR –then it might be more relevant and important that a proper BoR’s initiate as replacement.”

    Exactly. But moving on from that, I can’t see any reason why a UK BOR (with specific local additions) couldn’t do an adequate job for protecting rights here.

  • “I can’t see any reason why a UK BOR (with specific local additions) couldn’t do an adequate job for protecting rights here.”

    As a UK BoR’s I suppose it could have specific terms laid out for here or a general facility as provision for the courts to sometimes make regional specific determinations in exceptional cases which could address any region –including England itself.

  • Brian Walker

    The NI Bill fo Rights is in the doldrums. It partly awaits the appointment of new HR Comissioner. But it is unlikely to get separate treatment for years until after a report by a commission to consider a UK wide Bill be set up by December. Cons and Lib Dem are split on this. Many Cons led by Cameron want to reduce the influence of the European Court of Human Rights on UK decisions. Nobody knows how to achieve this, though Labour when Jack Straw was leading supported a version of a British Bill that would treat the government’s counter terrorism and repatration rules more amenably.
    The UK will not in my view ever pull out of the Convention and the Supreme Court will continue to be influenced by it.

    A Bill for N I is a separate question. Owen Paterson has rejected the NI HRC report on behalf of the UK government for a comprehensive Bill with many social and economic rights . There is also a unionist./nationalist split on the subject of an NI Bill. The UK Attorney General Dominic Grieve when in opposition speculated that an annexe to a UK Bill might be sufficient for NI,. This is unlikely to satisfy nationalists. But it isn’t much of a priority for any party just now .

  • joeCanuck

    Can someone please, in simple language, explain what seperate “rights” are necessay to protect N.I. folks that would not be covered by an all encompassing UK BoR.

  • Mick Fealty

    FJH,

    In fact Colin Harvey is NOT a member of the SDLP. This seems to be a common misconception, and I am not really sure where it comes from, but from the point of view of this conversation, can we consider it scotched?

  • Mr Fealty,
    I know that Mr Harvey is not a member of the SDLP. I dont know how you assumed I thought that he is.
    Mr Harvey is a member of the Commission who spoke at a Fringe Meeting (sponsored by the Human Rights Consortium)….alongside Mr Patrick Corrigan of Amnesty and a lady whose name eludes me at the moment.
    Earlier in the day Mr Harvey spoke alongside Duncan Morrow and Rev Dr Norman Hamilton on the SDLP platform on the subject of Shared Society..

    At the fringe event, there was only time for two questions. Paraphrasing now my own question, I suggested that the Commission was not exactly pro-active after 12 years and was now appealing to the SDLP (thru Alban McGuinness) to take up the slack.
    I heard a mumbled “hear hear” behind me.
    I would be unfair if I tried to paraphrase Mr Harveys answer to me. It was long and four months ago. But I know it started with an assertion that he was not going to apologise for the Commissions work.
    Afterwards over tea and sandwiches, a couple of SDLP people said they were glad I had asked the question.

    This is the problem with civic society.(Im speaking in general terms NOT specifics about people) They simultaeously distance themselves from “politics”…….nasty sectarian business……and manage to be on first name terms with every politician they feel able to help their particular cause.
    They are actually closer to politicians than members of political parties.
    During his speech Mr Harvey was quite complimentary about SDLPs record on human rights.
    Id be surprised if any “group” within the Consortium……120 from Action Against Medical Negligence to Youthnet……would actually endorse any political party . Cross Community and all that. And they dont have the courage……nor do many individuals within the groups.

    Of course Ive asserted before that the upcoming election will be fought in Marginals and “on the margins” with mere handful of votes deciding the outcome of final seats. That might make it worthwhile in tactical terms…..as well of course principle to engage with bodies like the Human Rights Consortium. But it would be naive to think that there will be an electoral reward.
    Maybe Virtue is its own Reward.

  • oops Alban Maginness not McGuinness.

  • fitzjameshorse1745 I note the defensive remark that you attribute to Colin Harvy, I quote, “But I know it started with an assertion that he was not going to apologise for the Commissions work.”

    I had thought that the NIHRC only do ‘achievements’ for the last ten years?

    The NIHRC had once notified me that it had instructed all of its employees never to make contact with me, only the next day I received one (of what became a dialogue with me over a series of other emails) the first email began as follows;

    “My employer has directly ordered me not to communicate with you, so I won’t say who I am. If you let my employer know that I have contacted you at all, I could lose my job,…”

    During the court hearing on 7th March last the NIHRC’s legal representative informed the court that all emails which I send to anyone within the Commission are redirected to one email address. I had sent private and personal emails to the employee referred to above –I am now inclined to think that the NIHRC might be breaching its employees Article 8 Convention rights. I will endeavour to make alternative form of contact with the employee to see if he had got sight of the emails which he may consider to have been personal and private.

  • FJH

    They simultaeously distance themselves from “politics”…….nasty sectarian business……and manage to be on first name terms with every politician they feel able to help their particular cause.

    Prof McWilliams feels no such need or requirement to distance herself from “politics”- for example, she’s standing full-square behind one of the candidates for the Irish Seanad:
    http://donnchaoconnell.ie/supporters/

    The UK Attorney General Dominic Grieve when in opposition speculated that an annexe to a UK Bill might be sufficient for NI,. This is unlikely to satisfy nationalists.

    But, more importantly, would such an annexe satisfy the requirements laid down for the Bill in the Belfast Agreement?

  • granni trixie

    Point of information Mick: Prof. Harvey had indeed links to the SDLP at one time. It did not come out of thin air which is why it was mentioned in the news when he joined HRC.

    Not that there is anything wrong with having connections with SDLP or any political party (which keeps within the law).

  • O’Neill,
    I think you have misread my post.
    I was referring to “civic society” as simultaneously distancing themselves from politics and shamelessly using it.
    Collectively they are cowards.
    I think I referred to Human Rights Commission as failed politicians who lose or who cant win Assembly seats.
    Clearly Mr Harvey seemed overtly sympathetic to a predominantly SDLP audience.
    But he is not actually the SDLP representative on the Commission. Thats still Eamonn O’Neill, former MLA (and possibly after May…MLA again). But it would be pointless having him address the Fringe Meeting (preaching to the choir).
    I dont know if Mr Harvey was actually represnting an official HRC line which was complimentary on SDLPs Human Rights record.
    Would Monica McWilliams (erstwhile NIWC) have said the same?
    Would Geraldine Rice (a serving Alliance Party councillor)?

    But granni trixies point “had indeed links to the SDLP” is interesting and I think accurate. I think Albans opening remarks were that Mr Harvey had supervised a dissertation/thesis or whatever.
    But my broader point is that theres a whole raft of people in civic society who cultivate “links” to political parties without ever being a member or overtly endorsing a Party.
    That might well be a consequence of a divided society where people involved in charity campaigns, trades unions, special interest groups dont actually “do” politics.

    As I recall I suggested at the Fringe meeting that the HRC feared it was on its last legs…..”they had held on to the ball too long and with the referee checking his watch, had decided to pass the ball to the SDLP”.

  • granni trixie

    Not to be picky but again for clarification, although Geraldine Rice is indeed an Alliance Councillor (of long standing) she is/was on HRC because she applied to a public advertisement to be on it – she was not there representing APNI. There is a difference though only mattering to anoraks possibly.

    Other politicans in the past have applied – I seem to remember forinstance that Arlene Foster did so, complaining (possibly to Ombudsman) because she was either not interviewed or had not been appointed. This was before she became such a big shot and would have been an interesting appointment, in my view.

  • Oneill

    “But, more importantly, would such an annexe satisfy the requirements laid down for the Bill in the Belfast Agreement?”

    They could do so. The terms of the GFA do not make clear that there MUST be a BoR’s but more accurately only suggest certain provision “any” BoR’s for NI would cover, specifically areas which might be supplementary to the ECHR.

    If an NI BoR’s was intended as supplementary to the ECHR then that means that the ECHR was by defacto an inherent part of the GFA –in the event that the UK were to opt out of the ECHR –would that be a breach of the GFA?

  • Indeed Granni Trixie is right.
    Geraldine Rice is a highly respected (not least by me) Alliance councillor. Indeed her MBE was awarded for services to local government. She was for many years the leading AP figure in South Belfast and I think its unfortunate that she missed out in 1998…..as it coincided with APs bad years.
    But while we know that her appointment to HRC was having been as a result of public appointment it would be naive to suggest that her excellent public record as an Alliance councillor was not considered by the Appointments people.
    And it would be naive to think that the NIHRC did not want a politically balanced board.
    Interestingly Eamonn O’Neill (SDLP) lost his seat in 2003 and was appointed to the HRC in 2005. He was re-appointed in 2008.He did not stand for Assembly in 2007 but is so doing in 2011 (as his term on HRC is ending?).
    Geraldine Rice failed to get elected again in South Belfast (2003) and was appointed to HRC in 2005. She did not stand in 2007. Re-appointed 2008.

    But I think my substantive point stands. Harvey was complimentary about SDLPs Human Rights record. Is this is his own view or would other HRC members endorse or repudiate it?
    Rather coyly, the HRC website does not specify the political affiliation of its members. Are they officially civil servants who cannot be seen to propogate a political party line?

  • Ooops…..cant forget Monica McWilliams lost her Assembly seat in 2003 and was appointed to the Commission in 2005.

  • granni trixie

    For me the interest lies in how people in NI manipulate identity and how other people use perceptions of those identities.
    In the case in question,what is known about a person appointed was used as a weapon against them whereas in the first commission, political affiliations (which might have ‘helped’ certain people, were ignored to suit).

  • I am not overly concerned one way or the other. I merely sought to assert that I had no knowledge of Colin Harveys political membership or leanings. Mr Fealty made the comment that he is not in SDLP…..which was based on a misreading of my post that he had spoken at both the SDLP Conference and at a Fringe meeting in support of Bill of Rights.
    I asserted that HRC gives gainful full time and part time employment to politicians rejected at the ballot box. I gave three examples from three parties. Clearly their record of previous public service was valued by those who apointed them……after all three were appointed within two years of their electoral defeat.
    Statistically however it would appear that anyone considering employment as a “new commissioner” might find it an advantage to include political service on their application.
    But wouldnt it be interesting if ALL of the new appointees had a record of service in just ONE political party……..would we really dismiss it as a coincidence and re-assure ourselves that the best people were appointed.
    I wonder if it would be better to exclude party politicians……because clearly the appointment of the best candidate (say a UUP person) would necessarily exclude the second and third best candidates if they just happened to be UUP members also.

    I suggest that quite reasonably .perhaps….that appointments are more about public confidence in a balanced team than mere merit. And I expect that any person putting them forward to be a new commissioner might very well consider a reference from a Leader of a political party. Would be interesting to see if applicants includes retiring politicians and people covering their bets against possible defeat in May.