Bill of Rights Forum

NIO Consultation

November 2006

Introduction

Law Centre (NI) is a non-governmental organisation that works to promote social justice.  It provides specialist legal services to member organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland.  We also deliver training, publications and policy services to our members.   The services are provided to almost 500 member agencies.  Members include local Citizen Advice Bureaux, independent advice agencies, local solicitors, trade unions, social services, probation offices, constituency associations of local political parties, libraries and other civic organisations.

Given the considerable delay that has characterised the progress of establishing a Forum, we are concerned that the period for consulting on this important initiative has been compressed into a two week period.  This does not afford adequate time for community and voluntary and other groups to consult widely with their membership in formulating a response.    

Law Centre (NI) is a member of the Human Rights Consortium and we endorse its general principles for the Forum.  We welcome progress on the establishment of a Roundtable Forum.  Below we set out our key concerns with the proposed remit, composition and timeframe set out for the work of the Forum.

Comments on Consultation on a Forum on a Bill of Rights for Northern Ireland

The commitment is to a ‘body that commands widespread support from the political parties and wider civic society.’  We submit that the following issues need to be addressed in order to realise this commitment.    

1. General Principles: the principles of openness, transparency and inclusiveness should underpin the work of the Forum.  This means that all proceedings should be open, public and accessible and that documents made available to the Forum should also be publicly available.  Inclusiveness does not simply refer to the representativeness of the Forum but to its modus operandi.  A key aspect of this must be engagement with wider society in order to encourage widespread understanding of the Forum’s work.  The Forum should therefore be specifically tasked with outreach work to maximise participation by civic society.  An independent secretariat, appointed by the Chair and/or members of the Forum should be resourced with sufficient funds to facilitate outreach work and to ensure the Forum is able to operate according to these general principles.

Recommendations:

	The work of the Forum should be conducted in accordance with the principles of openness, transparency and inclusiveness;
	An independent secretariat should be appointed by the Forum;
	The Forum must engage in outreach work.

2. Remit: Our first concern in relation to remit relates to the Forum’s obligation to produce ‘agreed recommendations’.  We note that the Forum will ‘itself decide on the procedures it will follow in producing agreed recommendations’.  It is unclear, however, whether this suggests an imperative to work towards consensus.  We recognise the powerful mandate that goes with consensus decision-making and it will be important for the Forum to work towards consensus where possible.  Equally, however, it is well understood that the need to reach consensus decisions can not only stifle creative thinking but can also lead to outcomes which reflect a ‘lowest common denominator’ approach.  We therefore consider it preferable that the Forum should be free to engage in and express divergent views reflecting the complexity of human rights issues, relieved of the need to reach consensus on all occasions.   The ability of members of the Forum to openly reflect the tensions in the group on certain issues and to express their disagreement with a majority recommendation by way of minority opinions would, we believe, pose no serious threat to the work of the Forum.  We see no difficulty in the outcomes of decision-making in the Forum being reflected in the Forum’s final report e.g. through a statement of where agreed recommendations have and have not be achieved and the number of representatives who could not agree on those particular recommendations. 

Our second concern refers to the Forum’s remit to inform the NIHRC’s advice to Government on the bill of rights.  We recognise that  the NIHRC has a statutory obligation to advise the Secretary of State on a bill of rights for Northern Ireland and is well placed to apply an overarching ‘human rights proofing’ to the Forum’s recommendations.  For these reasons, we are broadly content that the role of the Forum should be to ‘inform the work of the NIHRC’ subject strictly to a requirement that the conclusions of the Forum are given due and appropriate weight by the Commission and reflected in its final advice to Government.  This is particularly important where, for example, these conclusions reflect an agreed or majority  position in the Forum.  Where the Commission seeks to amend or reject the Forum’s recommendations, it should be required to provide detailed reasons explaining these decisions. 

Our third concern relates to the role of the Commission in the work of the Forum.  Given the Commission’s distinctive statutory role in advising the Government on a bill of rights for Northern Ireland, we submit that it would be helpful if the Commission has observer status at the Forum.  We note that the Commission intends to provide the Forum with a paper setting out its views on the important issues relating to a Bill of Rights.  Additionally, the Commission should be charged with assisting the work of the Forum through the provision of documentation, including that requested by the Forum.  This material should be widely circulated beyond the Forum in order to inform civic society.  This includes all material relating to the substantial body of work that has been done in relation to the Bill of Rights to date.

Finally, we are concerned that the remit does not actually refer to the Bill of Rights.   Nor is there any reference to the changing demographics of Northern Ireland society in recent years. 

We suggest the terms of reference should be:

‘To produce through open, transparent and inclusive processes, including outreach work, recommendations to inform the NIHRC’s advice to Government on the scope, structure and content of a strong and inclusive Bill of Rights for Northern Ireland, reflecting the particular circumstances of Northern Ireland and including rights supplementary to those in the ECHR and drawing on international instruments and experience.’

Recommendations:

	That the term ‘agreed recommendations’ should not be taken to   refer to consensus decision-making but that the Forum should produce recommendations reflecting its deliberations, highlighting minority opinions and issues of disagreement as appropriate.
	The NIHRC should be obliged to give due weight to the recommendations of the Forum in advising the Secretary of State on a bill of rights for Northern Ireland;
	That the NIHRC should have observer status at the Forum and be obliged to support the work of the Forum through the provision of documentation as requested;
	That the terms of reference should specifically refer to the Bill of Rights for Northern Ireland.

3. Timeframe: the opportunity to frame a bill of rights through an inclusive process involving political representatives and civic society is a unique opportunity and must not be jeopardised by unrealistic time pressures.  The proposed deadline of 30 September 2007 is unrealistic given the upcoming Christmas break; the anticipated election period scheduled for the spring and the summer recess.  We strongly submit that the minimum timeframe for the Forum’s work should be at least12 months.  This longer timeframe would enable the Forum to engage in outreach work.  We would support the Human Rights Consortium’s recommendation that the Forum should report on International Human Rights Day 2007.  

Recommendation:

The timeframe for receipt of the Forum’s final report should be extended to at least 10 December 2007.

4. Chairperson: the process of formulating a bill of rights in a post-conflict society can be highly contentious. 

It is therefore important that the Chairperson should not only have significant expertise (rather than simply ‘an understanding and experience of human rights’) and track record in the theoretical and practical application of human rights but also significant experience of and considerable skills in managing the work and deliberations of the Forum, mindful of the nature, form and remit of the body.  A Chair who commands the respect of wider civic society and who can bring credibility to the work of the Forum points to a candidate of international standing.  We would support the recommendations of the CAJ that the appointment should be verified with the UNHCHR and the Council of Europe.   

Should it not be possible to identify such a candidate by the date of the inaugural meeting on 11 December, we would recommend that consideration be given to the possibility of proceeding on an interim basis with the appointment of a vice-chair to take forward the initial work of establishing the Forum with a view to the Chair being in post within the first quarter of the Forum’s life.  The vice-chair would be able to liaise with the Chair during this time and remain in post upon the Chair’s appointment in order to provide continuity to the Forum. 

Recommendations:

	The Chair should be of international standing with expertise in the theory and application of human rights and highly skilled in managing this type of body;
	The appointment of the Chair should be independently verified by the UNHCHR/Council of Europe;
	Consideration should be give to proceeding on an interim basis with a vice-chair to commence the Forum’s work, pending appointment of a Chair, where such a candidate is not immediately available.

5. Membership: we agree that the Forum should be of a manageable size and would not wish to see the maximum membership increased beyond that outlined in the consultation paper. 

We would expect the political parties to be cognisant of the need for appropriate balance in their nominations and that an appropriate balance reflecting gender, race, sexual orientation and disability is respected in relation to the composition of the civic society members.  We also recommend that the civic society membership should be drawn from a range of bodies with recognised experience in human rights; an understanding of the Bill of Rights process and whose work is with disadvantaged and vulnerable groups.  Fully reasoned decisions must be made available as to the selection decisions for civic society membership of the Forum.

We would not wish to draw up a list of named organisations which should have a seat on the Forum.  It is important, however, that there should be a role for those groups in civic society who have a broad and deep understanding of human rights.  The recognised human rights expertise and standing within the ngo community and international human rights community of the Committee on the Administration of Justice and their long-standing involvement in the bill of rights debate in Northern Ireland points to a seat for the CAJ on the Forum.  Beyond this we would not feel able to comment on which other groups should be allocated membership of the Forum. 

Recommendations:

	The civic society membership of the Forum should be drawn from those organisations with considerable understanding of human rights and the Bill of Rights process;
	Reasoned decisions must be provided about selection decisions;
	The CAJ should be allocated a seat on the Forum because of its recognised international standing and its twenty year track record on work on a Bill of Rights in Northern Ireland.

Conclusion

The positive role that may be played in a post-conflict society by the process of negotiating and framing a bill of rights is now well-recognised.  Process is vital to the ultimate product.  It is therefore extremely important that the process is not rushed.  The process must be independent, inclusive, open and transparent.  Finally, it is equally important that a candidate who can command widespread credibility and effectively manage the complex debates about a bill of rights is available to lead the process. 

We trust these comments are useful and we look forward to feedback from the consultation process.