The Law Centre is disappointed with the government’s proposals for a Bill of Rights for Northern Ireland. The exclusion of economic and social rights fails to protect and benefit the people of Northern Ireland and especially those who are most disadvantaged. The government should not make the enactment of a comprehensive Bill of Rights dependent on the GB-wide rights and responsibilities debate.

Introduction

Law Centre (NI) is a public interest law non-governmental organisation.  The Law Centre’s mission is to promote social justice.  We do this by providing specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland.  We provide a specialist legal service (advice, representation, training, information and policy comment) in five areas of law: mental health, community care, immigration, social security and employment to approximately 400 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.

Law Centre (NI) has a long-standing interest and involvement in human rights issues.  We use human rights standards extensively in our casework.  We have long supported a Bill of Rights for Northern Ireland that would make a positive difference to the lives of the people of Northern Ireland, particularly those who are most disadvantaged.  We are members of the Human Rights Consortium and throughout the past decade we, along with many others, have engaged in the extensive dialogue about the form and content of a Bill of Rights.

We found the Secretary of State’s forward extremely encouraging.  We agree with the Secretary of State’s opening remarks that ‘human rights and equality are ... part of a necessary framework which is there to protect and benefit the whole community’ (at p. 6).  We are therefore extremely disappointed that the remainder of the consultation document does not, in our view, propose a framework that will deliver on this vision.

Our work on promoting social justice underscores the centrality of economic and social rights to the reality of people’s lives.  A comprehensive Bill of Rights that embraces economic and social rights can bring significant benefit to the people of Northern Ireland.  The Government’s decision to exclude these rights and its proposal to curtail the range of rights to be included in a Bill of Rights for Northern Ireland is such that it is unlikely to meet its own aspiration that a ‘Bill of Rights which has the support of the people of Northern Ireland could play an important role in underpinning the peace, prosperity and political progress of Northern Ireland’ [para. 1.5].  Instead, the Government appears to have put the enactment of a comprehensive Bill of Rights for the people of Northern Ireland into suspension by making this hostage to the emerging policy debate in England, Wales and Scotland.

The Context for a Northern Ireland Bill of Rights

We agree with the Government that ‘the fundamental principle of mutual respect for the rights and freedoms of all the people of Northern Ireland has been at the heart of progress ... and still has a crucial role of play in its future success.’  The importance of a Bill of Rights in the process of building a stable and peaceful society was articulated in the Belfast (Good Friday) Agreement and again in the St. Andrew’s Agreement.  It is further attested by the extensive participation by civic society in the debate in the intervening years.  There has been widespread consultation over the last decade by the Northern Ireland Human Rights Commission (NIHRC) about the scope and content of the Bill of Rights and significant public investment in the debate, including through the work of the Government-sponsored Bill of Rights Forum.

All of this has raised significant public expectation about the Bill of Rights for Northern Ireland that is not met by this consultation document.  We have given careful consideration to the arguments put forward by the Government in this response but consider that this document is flawed for the reasons set out below.  We have therefore chosen not to comment on the substance of the Government’s proposals but largely limit our comments to the approach taken in the consultation document.  Our key concerns with the consultation paper are that:

1. it appears to misrepresent the nature of a Bill of Rights as part of the framework for protecting and benefiting the whole community;
2. it limits the terms of the debate by failing to give adequate consideration to the background against which a Bill of Rights for Northern Ireland was originally conceived and by failing to explain the policy rationale for excluding a range of rights from a Northern Ireland Bill of Rights.

1. Nature of a Bill of Rights

The ‘added value’ of a Bill of Rights is that it is a values document.  A Bill of Rights should reflect and resonate with the society it serves.  It should be the vision statement that provides clarity about the values on which society is based.  As the Government is aware, as a foundational document, a Bill of Rights holds a special ‘quasi-entrenched’ place in the legal and political architecture of the state.  To equate protections set out in law and practice, including an ‘NHS constitution’ [para. 1.4] and codes of practice with the protections that should properly be enshrined in a Bill of Rights appears to misrepresent the nature and purpose of a Bill of Rights.  The Government is aware that primary and secondary legislation is readily amenable to change according to the political preferences of the incumbent administration.  Codes, policies and practices are likewise vulnerable to amendment by the relevant public bodies.  It is insufficient therefore to assert, as the Government does in many instances in this document, that certain rights are already protected in legislation or in codes of practice or other guidance.

2. Limiting the Terms of the Debate

The consultation paper frames the parameters of the debate by  linking the Northern Ireland Bill of Rights with the Green Paper on Rights and Responsibilities: Developing our Constitutional Framework (March 2009) and by applying a particular reading of the ‘particular circumstances of Northern Ireland.’  This approach excludes from further discussion a range of rights including the right to health; work; social security and the right to an adequate standard of living.

The commitment to the enactment of a Bill of Rights for Northern Ireland in the Agreement and again at St. Andrews was not predicated upon developments in other jurisdictions within the UK but on the recognition of the importance of a Bill of Rights as a component of the process of building a peaceful society.  The extensive debate over the last decade has focused on a Bill of Rights for NI not on a UK-wide debate.  To change the parameters of the debate at this stage is highly unsatisfactory.    Linking progress on a comprehensive Bill of Rights for Northern Ireland to the ‘developing national debate’ [para. 3.7] loses sight of the context in which the commitment to progressing a Bill of Rights for Northern Ireland was made.  Moreover, there is considerably greater awareness of the Bill of Rights and the role it can play in Northern Ireland as a result of the work done by the Human Rights Commission, Community Foundation for Northern Ireland and Human Rights Consortium and others.  This leaves local communities in Northern Ireland considerably ahead of their counterparts in Britain on awareness of the issues.

In short, we do not believe that progress to enact a comprehensive bill of rights for NI should be delayed by the ongoing policy debate on a UK Bill of Rights that may, or may not, stay on track depending on the outcome of the forthcoming Westminster election.  Moreover, the Bill of Rights is rooted in the Belfast Agreement made between the United Kingdom and the Republic of Ireland.  The shift to a British debate, in effect, sends out a message that is unlikely to enhance the inclusion of both of the main communities in Northern Ireland in the debate and is contrary to the spirit of the Agreement.

This linkage to the GB debate appears to underpin the Government’s reading of the ‘particular circumstances of Northern Ireland.’ This translates into an assessment by the Government that ‘over half of the rights proposed in the NIHRC’s advice are equally relevant to the people of England, Scotland and Wales ... and therefore, fall to be considered in a UK-wide context’ [para. 3.14].      Over the last decade there has been considerable discussion of the ‘particular circumstances of Northern Ireland’.  The Law Centre’s view is that ‘the particular circumstances of Northern Ireland’ should be broadly interpreted so as to enhance the rights of the most disadvantaged in society.  The NIHRC consulted widely on this and, in accordance with their remit, produced robust advice on the rights that should be enshrined in the Northern Ireland Bill of Rights.  With one exception (the right to health), the Government has failed to explain its reasons for its approach.   The explanation proffered that rights that do not resonate solely for the people of Northern Ireland are not for further consideration is insufficient of itself.  It does not provide an adequate rebuttal of the NIHRC’s advice and fails to give due regard to the constitutional context in which the commitment to a Bill of Rights was made.  Simply because the right to health, for example, also has relevance for the people of England, Wales and Scotland does not mean that this and other rights should not be expressly articulated in a Northern Ireland Bill of Rights that establishes the values upon which the future governance and relationships in Northern Ireland will be built. It behoves the Government to address in detail the advice proffered by the NIHRC and explain why it has decided to accept or reject this.

The economic and social rights that are excluded from the debate are rights that are integral to our work to promote social justice.  Our experience is that people do not classify their experience of disadvantage into categories of rights – civil and political and economic and social – and that this is a false dichotomy.  The Government assert that ‘the national debate is ... the right context in which to consider both the opportunities and the risks in attempting to establish legally enforceable economic and social rights’ [para. 3.21].  Given, however, that the debate about economic and social rights in a Bill of Rights in already considerably advanced in Northern Ireland and there is widespread public support for these rights we see no rationale at this stage for the Government now excluding these rights from the parameters of the debate.[1]

The Government’s decision ‘not ... to address in detail ... those rights that it considers to fall outside the scope of... a Bill [of Rights]’ for Northern Ireland [para. 3.16] fails, in our view, to meet the requirements for public consultation as set out in caselaw requirements and the Cabinet Office Code of Practice on Consultation.[2] The insufficient explanation of its decision to pre-determine those rights which are to be excluded from the debate means that consultees are unable to make a meaningful response to the consultation at a formative stage.

Conclusion

Our experience of using human rights in our work with disadvantaged individuals and groups is that enforceable rights make a difference to the reality of people’s lives.  A comprehensive Northern Ireland Bill of Rights, embracing the full range of economic, social, civil and political rights, would serve as a guiding framework for the future governance of Northern Ireland.  After more than a decade of deep and widespread discussion and debate about a Bill of Rights for Northern Ireland we are deeply disappointed and dissatisfied by the limitations of the approach set out in this paper.  We have not therefore commented in any further detail on the consultation paper.  The paper indicates that the Government ‘is open to argument and discussion about where the line should be drawn in respect of rights to be included in a future Bill of Rights for Northern Ireland’ [para. 4.6]. If this is so, then we urge the Government to fundamentally reconsider both its approach and the content of its proposals.