Writing up rights

legalAid1 Peter Cheney takes stock of the latest stage in the contentious bill of rights debate.

Many countries have bills of rights, the American example being the most famous, and the idea of having one for Northern Ireland has been around for some time.

A Liberal MP in the old Stormont Parliament, Shelagh Murnaghan, first proposed it in 1964 and the idea was given new momentum by the Belfast Agreement in 1998.

The latest stage started when the NIO published its consultation on the ‘next steps’ on 30 November last year.

There has been a strong lobbying campaign in favour of a bill of rights but the Belfast Agreement does not insist that there must be one.

Supporters argue that bills of rights have helped in other peace processes.

The St Andrews Agreement set up a Bill of Rights Forum, drawn from the main parties and other interest groups, to discuss the idea in more depth. Its report was published in March 2008 (agendaNi issue 18, page 86) but most unionist and socially conservative members of the forum dissented over these grounds:

  • Accountability – it could be used to strike down Assembly legislation;
  • Age of criminal responsibility – the report calls for this to be raised from 10, which could mean some young offenders are not held liable for breaking the law;
  • Positive discrimination – quotas for women in politics were suggested and public authorities would be forbidden to discriminate against persons with “conflict-related convictions”.
  • Unborn child rights – a clause which defined life as starting at conception was rejected by the forum; and
  • Victims – the definition accepted by the forum includes paramilitaries injured in attacks during the Troubles as well as civilians.

This report was then considered by the Human Rights Commission, which presented its advice to the NIO in December 2008. While the NIO thanked the commission for its advice, a lot of this was disregarded.

Over half of its proposals were not specifically relevant to Northern Ireland. These cover the following areas:

  • Marriage and civil partnerships;
  • Education;
  • Freedom of movement;
  • Civil and administrative justice;
  • Health;
  • Standards of living;
  • Work;
  • The environment; and
  • Social security.

In fact, these issues could be dealt with in a UK-wide ‘bill of rights and duties’. This idea was put forward by Gordon Brown, in the ‘Governance of Britain’ paper, shortly after he came to power. A separate debate on this is under way, organised by the Ministry of Justice. However, 32 of the rights proposed in the advice were considered relevant to the debate. These cover five familiar categories:

  • Equality, representation and participation in public life;
  • Identity, culture and language;
  • Sectarianism and segregation;
  • Victims and the legacy of the conflict; and
  • Criminal justice.

To take the first topic, the NIO undertook to ask the Executive whether any extra equality categories were needed i.e. groups which should not be discriminated against. It found that the parties were already promoting women in politics. The commission had also sought an “an independent electoral authority” for Northern Ireland, when in fact two already existed: the Chief Electoral Officer and the Electoral Commission.

On the cultural issues, the Government agreed that any bill should include the right of people in Northern Ireland to identify themselves as Irish or British or both. This will be discussed with the Irish Government, as it overlaps with the Republic’s nationality law. The Government also agrees in principle that people should not have to swear an oath that is contrary to their religion or belief.

In the NIO’s view, there is still a case for Irish language legislation but it is up to the Assembly to pass this. Language is seen as a sensitive area and the Government holds back from specific proposals. Instead, it asks people for their views on whether more linguistic rights are needed.

Turning to the conflict, the commission had insisted on legislation to make sure all killings in the Troubles – described as “violations of the right to life” – are effectively investigated. The NIO warns that this proposed right “could have [farreaching] and unintended consequences”. For example, it does not cover deaths which took place outside Northern Ireland.

More legislation for victims (of the Troubles) is also requested by the commission, and it says this should include “rights to redress and to appropriate material, medical, psychological and social assistance.” The Government points out that the Executive is already supporting victims but suggests that a bill could refer to victims in some way.

In criminal justice, the Government acknowledges the problems in the past about how suspects were treated and explains that many safeguards have been since put in place. It would welcome views on whether more needs to be done.

The commission had also called for everyone to have the right to “trial by jury for serious offences”, as opposed to the non-jury courts used for terrorism cases. While the NIO sees trial by jury as the “most desirable system”, it adds that non-jury trials can also be fair.

Responses must be received by 1 March.

Reaction

DUP MLA Peter Weir, a barrister, told agendaNi that any bill of rights will require unionist community support and added that it “cannot be permitted to take the responsibility for key decisions away from those democratically elected and place them in the hands of unelected lawyers.”

Weir welcomed the dumping of “many of the most outrageous recommendations” from the commission. For the UUP, Danny Kennedy saw the report as a “stunning rejection” of the commission’s advice.

Alliance spokesman Stephen Farry noted that there was no longer any time to pass a bill before the election and he also warned that human rights could be misused to increase sectarian divisions.

Sinn Féin’s Martina Anderson wants economic and social rights included in any bill: “Structural socio-economic discriminations and inequalities were contributing factors to the conflict here, not least on issues such as employment and housing.” The SDLP will continue to argue for an “expansive” bill of rights, according to Alex Attwood.

The Human Rights Commission will issue a full response to the document “in due course”. The NIO emphasises that a bill of rights should not set detailed public policy, and it should not make the courts more powerful than elected politicians. It also reminds those involved in the debate that a bill “needs to attract the broadest possible degree of support and gain enduring acceptance, not become a cause of division.”

Don’t we have one already?

In December 1689, the English Parliament passed its own bill of rights following the succession of King William III to the throne. It declared a constitutional monarchy, with a king’s power checked by the courts and Parliament. Citizens were free to petition the monarch and elect MPs. Freedom of speech and debate in Parliament was also secured.

The document influenced its betterknown American counterpart and is part of the law of Engla
nd and Wales, but not Northern Ireland. Its official title reads: “An Act declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne.”

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