'Bill of Rights - Consultation Document' by Human Rights Commission

MAKING A BILL OF RIGHTS
FOR NORTHERN IRELAND

A CONSULTATION BY THE
NORTHERN IRELAND HUMAN RIGHTS COMMISSION

Published September 2001
ISBN 1 903681 18 9

Northern Ireland Human Rights Commission
Temple Court
39 North Street
Belfast BT1 1NA

Tel: 028 9024 3987
Fax: 028 9024 7844
Email: nihrc@belfast.org.uk
Website: www.nihrc.org

CONTENTS

A. Introduction 1
B. The Commission’s consultation process 4
C. The Commission’s mandate 8

1. Preamble 12
2. Democratic rights 15
3. Rights concerning identity and communities 19
4. Equality and non-discrimination 25
5. The rights of women 31
6. Rights to life, freedom from torture, inhuman or degrading treatment
or punishment, freedom from slavery and freedom from forced labour 36
7. Criminal justice and administrative justice 40
8. The rights of victims 50
9. Rights to family life and private life 54
10. The rights of children 56
11. Education rights 66
12. Rights to freedom of thought, expression, information and association 71
13. Language rights 73
14. Social, economic and environmental rights 78
15. Interpretation 87
16. Limitations 89
17. Emergencies 91
18. Enforcement 94
19. Entrenchment and amendment 100

Appendix 1: Clauses for consultation 104
Appendix 2: Questions for consideration 129
Appendix 3: Additional Protocols to the European Convention on Human Rights 132
Appendix 4: Glossary of terms 136
Appendix 5. Selected references 141
Appendix 6: Organisations which made submissions to the consultation process 145

A. Introduction

There is a long history of demands for a Bill of Rights for Northern Ireland and prior to the current peace process there was consensus among the main political parties that a Bill of Rights for Northern Ireland would be a good thing. The Belfast (Good Friday) Agreement 1998 also indicated that a Bill of Rights should form part of a lasting settlement. The Secretary of State’s request to the Northern Ireland Human Rights Commission – under the terms of the Agreement and the Northern Ireland Act 1998 – to consult and advise the Secretary of State on the scope for such a Bill, is an important part of the settlement. But it is only a part. The final delivery of an effective and appropriate Bill of Rights is a matter for all those involved in the search for long-term peace and stability in Northern Ireland – the two governments, the political parties, civic society and indeed all the people of Northern Ireland.

The purpose of a Bill of Rights is to establish and guarantee the relationship between the state and its citizens. That means setting some limits to the powers of the Government and of public bodies to control the lives of ordinary people. That was the main focus of the most famous national bills of rights, such as the English Bill of Rights of 1688, the French Declaration of the Rights of Man and the Citizen of 1789 and the American Bill of Rights of 1791.

But a modern bill of rights should also set some more positive requirements for the Government, such as ensuring equality for all under the law, protecting everyone against discrimination and guaranteeing some essential public services. This is the focus of the increasing number of international human rights documents which now set the standard for national bills of rights. It is also the focus of the recent Charter of Rights and Fundamental Freedoms in Canada (1982) and of the Bill of Rights of South Africa (1996).

In a divided and multi-cultural society like Northern Ireland there will also be a need to establish and guarantee the rights of members of each community to equality and fair treatment and to ensure effective participation in government for all sections of the community.

None of this will make much difference unless the rights included can actually be relied upon by ordinary people, in particular by the most marginalised and disadvantaged members of the community who need them most. Effective provisions for dealing with individual complaints and for enforcement are therefore as essential as the rights themselves.

It should be remembered, of course, that a Bill of Rights cannot cure all ills. It merely provides a set of minimum standards. The effective protection of rights requires additional rights-based legislation and enforcement mechanisms. Furthermore, the protection of rights often involves a balancing exercise: as well as claiming our own rights we owe a responsibility to allow other people to claim theirs.

A Bill of Rights should not be thought of as just another piece of legislation to achieve a particular objective. It should set general standards against which all kinds of ordinary legislation and activity by the Government are to be judged. It should therefore be drafted in general terms, setting out basic principles for how the Government should operate but allowing a good deal of flexibility for the way in which the principles are implemented. It should also allow for changing interpretation as time passes and circumstances change. Finally it should be given a special constitutional status and special procedures for any future amendment so that the rights it protects cannot be chiseled away by future law-makers.

The Belfast (Good Friday) Agreement 1998 (the Agreement) sets some additional objectives for the Northern Ireland Bill of Rights. It is to provide rights that are not already guaranteed in the European Convention on Human Rights. It must also reflect the particular circumstances of Northern Ireland and provide effective guarantees for the rights of all its peoples and communities. So it must recognise and guarantee parity of treatment and esteem for members of the two main communities. But it must also avoid the risk of institutionalising the division between these communities. And it must protect the rights of members of smaller communities and of those who do not want to be treated as belonging to any particular community. Finally it must take account of the possibility that there could be constitutional change in Northern Ireland by consensus. The British and Irish Governments have each committed themselves to protecting the rights of all persons living in Northern Ireland as well as the identity, ethos and aspirations of both "main communities".

The Northern Ireland Human Rights Commission has enthusiastically undertaken the task given to it under the Agreement (and the Northern Ireland Act 1998, section 69(7)) of consulting and advising the Government on what should be included in the proposed Bill of Rights. It believes that a Bill of Rights is an essential building block in the peace process in Northern Ireland and that it has the potential to be a rallying point for all sections of the community regardless of their political beliefs or past grievances. That means that it must make a real difference to the lives of everyone in Northern Ireland – young and old, rich and poor, long established and newly arrived.

The Commission has also been inspired by the pronouncements on human rights contained in the Northern Ireland Executive’s Programme for Government 2001-2004. We welcome the statement, for example, that the Executive is committed to policies "which actively promote equality of opportunity and adhere to international standards of human Rights". (p8)

The consultation process on the Bill of Rights to date has been extremely valuable in itself. The Human Rights Commission wants the Bill of Rights to emerge from a process, not to be imposed from on high. We want the people of Northern Ireland to feel that, having helped to mould the Bill of Rights, they own it and that it is a document which could be a basic foundation stone for a stable future.

The purpose of this consultation paper is to draw on the many submissions the Commission has already received and to set out the Commission’s initial views on what rights a Bill of Rights should include and how they could be enforced. On some issues the Commission has reached provisional conclusions. On others it has not yet made up its mind and has therefore set out what it sees as the main options. But it wants to have your views on all the issues involved before it makes its final recommendations to the Government.

From almost the day of its creation in March 1999 the Northern Ireland Human Rights Commission has promised to conduct a very deep and broad consultation process relating to the proposed Bill of Rights for Northern Ireland. The process was officially launched on 1 March 2000, the first birthday of the Commission, with high profile events in Belfast and Derry / Londonderry addressed by Mr Brian Keenan, the writer and former Beirut hostage. During the succeeding 12 months the Commission undertook a series of measures to canvas views on the Bill of Rights. These included the following:

• Training sessions for over 400 potential trainers. Many of these trainers have then been involved in spreading awareness of the Bill of Rights consultation within their own communities or organisations. There have been countless workshops, discussion groups and information events.

• The production of a training video. This 30-minute video outlines the history of human rights protection internationally and explains in particular the European Convention on Human Rights. It goes on to stimulate ideas as to what rights additional to those in that Convention may still need to be better protected in Northern Ireland.

• The production of a trainers’ manual. The manual contains a number of exercises which people can undertake when attending training sessions. They are designed to make people think about their current rights and what extra rights they need but do not yet have.

• The publication of 11 explanatory pamphlets. As well as an Introduction to the Bill of Rights, and one on Implementation issues, these pamphlets covered Children and Young People, Criminal Justice, Culture and Identity, Education, Equality, Language, Social and Economic Rights, Victims and Women. They have been widely distributed and have provoked a great deal of discussion around the various questions posed in each of them. Comment sheets were included in each pamphlet to make it easier for readers to send their views on particular rights to the Commission.

• The establishment of nine advisory Working Groups on different types of rights. These were chaired by, and were almost entirely composed of, persons from outside the Commission. They operated independently from the Commission and within three or four months submitted advisory reports to the Commission, which were collectively published in January 2001, when the Groups were disbanded. The Working Groups covered Children and Young People, Criminal Justice, Culture and Identity, Education, Equality, Implementation issues, Language, Social and Economic Rights and Victims’ Rights.

• Meetings with representatives of political parties. Nearly every party has met with the Commission, some on several occasions. A small number have refused to do so, but the Commission is still hopeful that they will submit their views on the Bill of Rights in the near future. Several presentations have been made to district councils.

• Meetings with numerous other interest groups. A large number of these meetings have taken place throughout Northern Ireland. They have included many meetings with victims’ groups, church groups, community groups and statutory bodies.

• Attendance at conferences and seminars. The Commission has spoken at numerous such events in order to explain the way in which it is going about its consultation process and what a Bill of Rights could eventually mean for everyone in Northern Ireland.

• Addresses by the President of the Constitutional Court of South Africa. Judge Arthur Chaskalson visited Northern Ireland as the guest of the Commission in December 2000. He spoke at several events where he explained how important South Africa’s Bill of Rights had been to the establishment of a more harmonious and tolerant society.

By the end of February 2001 – the initial deadline for receipt of comments – the Commission had received over 130 written submissions on what should be contained in the Bill of Rights. More than 85 further submissions were received between March and July 2001. A list of the organisations that made submissions can be found in Appendix 6 of this consultation document.

The Commission was enormously impressed by the work which had gone into the submissions received. What shone out above all else was the excitement at the prospect of a Bill of Rights actually becoming part of our law. Nearly every comment we received was positive and enthusiastic.

The Commission acknowledges the assistance it has received from the submissions, the Working Groups whose members gave their time and expertise voluntarily, and its many meetings, informal and formal, with organisations, groups and individuals. The Commission is grateful to everyone involved in the drafting process of this consultation document. The participation of Brian Keenan, Arthur Chaskalson and Albie Sachs has been particularly inspiring.

During the past three months members of the Commission have carefully considered all the submissions and have discussed at length what should go into the Commission’s preliminary advice to the Secretary of State. This document represents the fruits of those considerations and discussions. Not all of the proposals in the document have been unanimously agreed within the Commission – on some matters one or two Commissioners have reserved their position – and the Commission would now welcome a lively debate on the proposals within the community at large.

This document is being published at this stage so that members of the public can examine its contents and respond to the Commission with their views before 1 December 2001. You can respond by contacting the Commission by post, email, telephone or fax. Our contact details are as follows:

The consultation document has been set out in three parts. Part 1 provides the background and context to the Commission’s Bill of Rights project. Part 2 contains 19 chapters on different types of rights which the Commission believes could be better protected by a Bill of Rights for Northern Ireland. Part 3 provides a series of appendices for reference or for additional information.

Part 1 describes the origin and intentions of the document and is a necessary induction to responding to its recommendations.

In Part 2, each chapter begins by looking at existing law or rights, whether enshrined in legislation or protected by the European Convention on Human Rights or other international human rights documents. The Convention’s Articles are identified by numbers in square brackets. The chapters then explain the Commission’s approach to each of the topics and set out, in colour, the clauses recommended for inclusion in the Bill of Rights which are supplementary to those in the European Convention. The chapters also explore some of the implications of adopting the clauses in question.

All of the Commission’s proposed supplementary clauses, together with relevant European Convention rights, can be read in their entirety in Appendix 1 – clauses for consultation. This is, in effect, the list of rights that could be protected in a Bill of Rights for Northern Ireland.

Appendix 2 lists the questions, 1 to 45, which are posed throughout the text. These questions are designed to help you to respond, not in any way to curtail debate. However, they reflect concerns expressed during the consultation process to date and if in your response you can refer to some or all of the points raised it would be helpful.

Appendix 3 sets out the rights protected by the Protocols to the European Convention on Human Rights which have not yet been ratified by the UK Government and which are therefore not yet effective in Northern Ireland. The Commission has not yet made a decision on whether these unratified Protocols should be included in its final advice on the Bill of Rights. It would welcome views on this matter.

An explanation of key technical words and phrases used in the document is given in

Appendix 4, the glossary of terms. This should be a useful reference point when you are considering the recommendations and preparing a response.

Appendix 5 lists the international instruments which have influenced the Commission’s thinking to date and the legislation, cases and research which have been relevant to the production of this draft advice.

Appendix 6 lists the organisations which made a formal submission to the Commission during the first phase of consultation. Copies of these submissions are available for review in the Commission’s library.

Further copies of this consultation document can be supplied free of charge. It can also be made available in a range of formats, including large-type, Braille, audio-tape and floppy disk. A version for children will be available. A summary of the document will be available in English, Irish, Ulster-Scots, and Cantonese. This consultation document is also available on the Commission’s website: www.nihrc.org.

Throughout the consultation period the Commission will be actively promoting debate around this document and will be organising public and private events and seminars, conferences and training sessions and hopefully more creative opportunities for as many people as possible, all over Northern Ireland, to take part in this consultation process and to contribute to the eventual outcome of our deliberations.

The Commission will reflect on the responses it receives to this document before formulating its final advice to the Secretary of State in February 2002. The Secretary of State will then have to decide which parts of the advice to accept and will in due course announce how and when the UK Government would go about enacting any necessary legislation.

The Commission will continue to press the Government to accept its advice after the final document is submitted in February 2002. We would like the necessary legislation to be debated in Parliament as soon as possible thereafter and we hope there will be little or no delay in bringing the agreed legislation into force. The Commission will be active in organising events around the Bill of Rights consultation so as to keep the project in the public eye throughout 2002 and into 2003 if necessary. We expect to be actively engaging with Government Ministers and officials during that period too.

In the Belfast (Good Friday) Agreement of 10 April 1998 there is a section headed "Rights, Safeguards and Equality of Opportunity". In paragraph 4 of that section, under the sub-heading "UK legislation", provision is made for a Bill of Rights for Northern Ireland. It reads as follows:

The Northern Ireland Human Rights Commission was formally established by the Northern Ireland Act 1998 and section 69(7) of that Act required the Secretary of State to request the Commission to provide advice of the kind referred to in the above paragraph. In March 1999 the then Secretary of State for Northern Ireland, Dr Marjorie Mowlam, duly wrote to the Commission to ask it to consult and advise in accordance with the paragraph. The Commission has been working on the project ever since. It officially launched its consultation process in March 2000 and the present consultation document represents the Commission’s preliminary advice to the UK Government. After the Commission has considered responses to this consultation document it will issue its final advice to the Government early in 2002.

The Commission included the full text of the above paragraph from the Agreement in all its explanatory pamphlets about the Bill of Rights. By doing so it was seeking to highlight an initial difficulty with the mandate given to the Commission, namely the need to define what is meant by "reflect the particular circumstances of Northern Ireland". In fact, relatively few of those involved in the consultation process to date (apart from the working groups) have addressed the specific issue of the Commission’s legal mandate. But it is clear that there is a spectrum of different approaches which could be adopted.

At one end of the spectrum the rights supplementary to those in the European Convention on Human Rights (the European Convention) can cover a fairly broad range of rights of a civil, political, social, economic and cultural nature. On this view the reference in the Agreement to "the particular circumstances of Northern Ireland" does not imply that any category of rights should be excluded from the outset, but rather that any rights which emerge from, or can be justified in terms of, the particular circumstances of Northern Ireland, may be included. Most of those who dealt with the mandate issue at all in their submissions to the Commission, and all of the working groups appointed by the Commission to advise it on the different types of rights which might be included in the Bill of Rights, supported an approach which tended to favour this end of the spectrum of approaches to the Commission’s mandate.

The main points to be made regarding this kind of approach to the Bill of Rights are as follows:

• the particular circumstances of Northern Ireland include the facts that the area is emerging from a lengthy period of violent conflict and that a multi-party agreement has been reached built on principles of non-violence, equality and participation; these are circumstances which the Bill of Rights should address;

• the Belfast (Good Friday) Agreement 1998 as a whole contemplates a range of protections for a range of human rights issues, from social and economic provisions to equality provisions and provisions dealing with the treatment of victims; this again suggests that a breadth of rights is permissible and/or contemplated under the wording of paragraph 4;

• paragraph 4 says the Bill of Rights should reflect "the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience" (emphasis added); international instruments and bodies have repeatedly stressed that all human rights are indivisible and interdependent, meaning, for example, that civil and political rights should not be separated from social, economic and cultural rights;

• in providing particular issues which the rights should reflect, and issues "among" those to be considered by the Commission, paragraph 4 provides the Commission with guidance rather than limitations as to what it has to address; in any case, mutual respect and parity of esteem can be reflected only by providing a range of rights addressing a range of issues.

At the other end of the spectrum of possible approaches, the rights supplementary to those in the European Convention should be much less numerous. On this view the phrase "the particular circumstances of Northern Ireland" is to be interpreted as imposing quite a definite limit on the scope of the proposed Bill, and only rights which very obviously reflect the particular circumstances of Northern Ireland deserve to be included in the Bill.

The main points to be made regarding this kind of approach to the Bill of Rights are as follows:

• the inclusion of the phrase in paragraph 4 in the Agreement suggests that the Bill of Rights should be limited to matters that are of special concern to Northern Ireland as opposed to the rest of the UK or Ireland;

• the two governments have already made it clear to the Commission that, while they do not wish to influence the Commission’s independent deliberations, it should consider carefully the wording of the Agreement in respect of the proposed Bill of Rights: the UK Government has indicated that "the key issues the Commission will have to address are the scope for a Bill of Rights for Northern Ireland and whether rights supplementary to the ECHR (the European Convention) are necessary in the particular circumstances of Northern Ireland" and the Irish Government has indicated that when the draft Bill of Rights is available it will "assess and evaluate it in terms of its compliance with the terms of the Good Friday Agreement, in particular those sections relating to the Bill of Rights";

• if the Commission were to recommend a more general Bill this could raise expectations which are unlikely in practice to be met because the UK Government may be unwilling to provide for many rights to be guaranteed in Northern Ireland when they are not so guaranteed elsewhere in the UK; the Irish Government may likewise be reluctant to see rights guaranteed in Northern Ireland which are not yet guaranteed in the Irish Republic;

• adopting this interpretation of "the particular circumstances of Northern Ireland" could mean that some of the rights recommended in the rest of this document, such as some electoral rights, women’s rights, children’s rights, some education rights and social, economic and environmental rights, could not be justified in terms of the Agreement, however much they might otherwise be desirable.

The Commission has always stated that it wishes to recommend provisions for the most extensive Bill of Rights which is consistent with the terms of paragraph 4 of the Agreement. Thus, for example, it has chosen not to confine itself to advising on "the scope for defining" the requisite rights but to advise on the requisite rights themselves.

Given the clear difference of views as to how that paragraph should be interpreted, especially the phrase "the particular circumstances of Northern Ireland", the Commission has decided for the purposes of the present consultation document to include a discussion and a suggested formulation of the full range of rights which have been suggested in the reports of the working groups, in other submissions and in the Commission’s own deliberations.

In so far as a narrow interpretation of paragraph 4 might be thought to rule out the recommendation of certain rights, the Commission is satisfied that it can properly rely on its general power under section 69(3)(b) of the Northern Ireland Act 1998 to make recommendations for the better protection of human rights in Northern Ireland. We are of the firm view that these rights need to be protected in Northern Ireland – ideally through being guaranteed in a Bill of Rights but at the very least through being covered by ordinary legislation.

In this document the relevant provisions of the European Convention on Human Rights are set out in the appropriate chapters together with the proposed supplementary rights. Rights contained in Protocols to the European Convention which have been incorporated into UK law by the Human Rights Act 1998 are included where appropriate in the following chapters. Protocols 4, 7 and 12, not yet ratified by the UK, can be found in Appendix 3. The Commission welcomes comments on whether these rights should be included as well.

Before it prepares and delivers its final advice to the Secretary of State in 2002, the Human Rights Commission would particularly welcome responses on which sort of approach to the content of a Bill of Rights is to be preferred. Having carefully considered all the views put to it, the Commission will take its own decisions and set out the reasons behind them.

Whichever interpretation you prefer, what are your reasons for doing so?

What are the consequences of your preference as far as the types of rights which are to be included in the Bill of Rights are concerned?

It is customary for important legal documents such as Bills of Rights to begin with a Preamble which attempts to locate the Bill in its historical context and to guide future users of the Bill as to how it should be interpreted. The great international documents on human rights – such as the Universal Declaration of 1948, the European Convention on Human Rights of 1950 and the two United Nations (UN) International Covenants on Civil and Political Rights and Social, Economic and Cultural Rights of 1966 – all have inspirational Preambles which emphasise their origins and importance.

The Northern Ireland Human Rights Commission is of the firm view that a Preamble should introduce the Bill of Rights for Northern Ireland. It proposes the following wording, which is explained in the text below.

The proposed Preamble is worded in such a way as to indicate the wish of the people of Northern Ireland for the Bill to be adopted and adhered to whichever government is responsible for the content of the law of Northern Ireland. It seems to the Commission that the best way in which the wish of the people of Northern Ireland could be determined would be through a resolution of their elected representatives adopted by a cross-community vote in the Northern Ireland Assembly.

The first two sub-clauses of the Preamble are based upon paragraphs in the Preambles to the UN’s International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966). Many people have commented to the Commission that the concepts of "dignity" and "responsibility" should be integral to the way in which the Bill of Rights operates in practice in Northern Ireland and the Commission believes these concepts can best be integrated by making them part of the Preamble.

The third sub-clause ("recognising that the tragedies…") is based almost word-for-word on paragraph 2 of the "Declaration of Support" at the beginning of the Belfast (Good Friday) Agreement 1998.

The next two sub-clauses are also based on paragraphs in the Agreement, in particular paragraphs 3, 4 and 5 of the "Declaration of Support" at the beginning of the Agreement and paragraphs 1 to 8 of the section headed "Rights, Safeguards and Equality of Opportunity".

The Preamble makes no express reference to how the Bill of Rights should be adopted. The Commission believes that a sensible option in this regard would be adoption by Act of Parliament and, as with the Belfast (Good Friday) Agreement, entrenchment in an international treaty between the UK and the Republic of Ireland in such a way as to guarantee the continued protection of the Bill’s provisions by whichever state has jurisdiction over the territory of Northern Ireland. The Commission, of course, holds no views on what the future constitutional status of Northern Ireland should be.

If so, have you any suggestions as to how the Commission’s suggested wording for the Preamble should be changed?

The Belfast (Good Friday) Agreement 1998 establishes new structures for the governance of Northern Ireland, both internally and in its relationships with the rest of the UK and the rest of Ireland. Within Northern Ireland it provides for proportional representation, both in the Executive and in the operation of the Assembly, where mutual vetoes are also provided for. On the island of Ireland it provides for formal structures for co-operation and decision-making in selected areas. East-West structures are also provided for, between Northern Ireland, Scotland, Wales and England. In addition the Agreement sets out principles of self-determination.

The question which faces the Commission is whether any of the Agreement’s complex constitutional arrangements should be reflected and guaranteed in the proposed Bill of Rights. The Commission did not establish a Working Group to discuss these issues, although some relevant aspects were considered by the Working Group on Implementation. But a number of submissions made during the initial consultation process called for the entrenchment in the Bill of Rights of the structures set out in the Agreement in respect of self-determination, partnership in government and the operation of cross-border and all-Ireland institutions. Others called for the inclusion of more general guarantees for proportional representation in elections and for effective participation of all sections of the community, as opposed to representatives of unionists and nationalists, in the structures of government and administration.

The Commission’s initial approach is that it is preferable to include the essential principles of the Agreement in the proposed Bill of Rights rather than to seek to entrench the specific and detailed arrangements which have been agreed and put in place under the Northern Ireland Act 1998 and other legislation. This is clearly an area where there are particular circumstances of Northern Ireland which deserve to be reflected in the Bill of Rights.

It is essential, in the view of the Commission, in a divided society like Northern Ireland to provide some guarantee for members of the two main communities – and others – that their right of effective participation in government, as recognised in the Framework Convention on the Protection of National Minorities and other international standards, cannot be overridden by the assertion of simple majority rule. But it is equally important to leave some flexibility for the future amendment or development of the particular arrangements for elections and for participation in the Assembly and the Executive set out in the Agreement and the Northern Ireland Act. As the Agreement itself provides for periodic review of these arrangements, it would in any case be inappropriate to seek to entrench them in a Bill of Rights.

Clause 2 is intended to supplement Article 3 of Protocol 1 to the European Convention on Human Rights. The principle that in the particular circumstances of Northern Ireland fair representation of the two main communities and others can be achieved only by a system of proportional representation has already been accepted for elections to the European Parliament, the Northern Ireland Assembly and local government. The Commission is strongly of the view that this should be extended to Westminster elections and that proportional representation should be protected against future repeal for short-term political advantage by its inclusion in the proposed Bill of Rights. The objective of this clause is to guarantee the principle without prescribing the particular method of elections, which in the view of the Commission should be left to detailed legislation.

These clauses follow the principle set out in the Framework Convention and the United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. As explained above, the Commission considers it better to guarantee the underlying principle of fair, full and effective participation for all those elected rather than to seek to entrench any particular form for the proportional allocation of positions on the Executive or within the Assembly. The inclusion of the word ‘fair’ is intended to strengthen the formulation in the Framework Convention without imposing any form of strict mathematical proportionality. The Commission remains open to suggestions as to how the principle of fair, full and effective participation at all levels of government can best be formulated. In Chapter 5 the Commission provides further explanation concerning the participation of women in the public life of Northern Ireland. In Chapter 10 it suggests clauses concerning the participation rights of children.

It notes, moreover, Article 16 of the European Convention on Human Rights, which permits the state to impose restrictions on the political activity of aliens, which the Commission has decided not to supplement at this point.

Creating a stable system of democratic governance for Northern Ireland entails protecting every individual’s right to vote and impact on the political process. As such, special attention is due to those persons whose right to participate is currently restricted by law. Existing legislation provides many grounds for disqualification from standing for certain elected offices. For example, people who are EU or Commonwealth citizens cannot stand for the Northern Ireland Assembly, nor can those who have been declared bankrupt. The clause could mean that some persons who are currently barred by law from presenting themselves as candidates at elections will now be able to do so, including police officers, civil servants, those who have been declared bankrupt and those who have been certified as mentally ill. Whether the laws which currently bar them from standing would be acceptable under the limitations clause included in this Bill of Rights (see Chapter 16) will depend on judicial interpretation of that clause, guided by the case-law of the European Court of Human Rights.

Some people are even denied the right to vote, including convicted prisoners (while they are detained or are unlawfully at large) and people who are detained because they are mentally ill. The Commission intends the clause set out above to be interpreted in such a way as to guarantee voting rights for everyone and to remove unjustifiable legal restrictions on people standing for election. It is also intended to supplement Article 3 of Protocol 1 to the European Convention on Human Rights as noted above.

A number of submissions argued strongly that in the particular circumstances of Northern Ireland, as a region emerging from a long period of conflict and with a higher proportion of young persons than elsewhere in Western Europe, it is necessary to ensure that young people have a real sense of belonging to and participating in society and that they should be accorded the rights, responsibilities and respect due to them as citizens. These submissions emphasised that by the age of 17 young persons are entitled to work, to marry, to drive and even to join the armed forces and that they are required to pay taxes and are subject to full criminal responsibility for their actions. They also referred to the fact that in nine other countries the voting age has been set at 15 or 16 and that in one German state it has been set at 16 for regional elections. The objective of the above formulation is to reduce the voting age to 17 for elections in Northern Ireland, other than those for the Westminster and European Parliaments.

It has also been strongly argued, on the other hand, that any change of this kind, however desirable in itself, should be debated and adopted by ordinary legislation and that it would be inappropriate to include it in the proposed Bill of Rights. There is no international standard in this respect and all other European countries currently set their voting age for national elections at 18.

The Commission seeks comments and suggestions on this general issue and also on whether if a provision is to be included the age should be set at 17 (rather than 16).

A number of issues were also raised with the Commission concerning the right to an accountable and transparent government. Several submissions made reference to this right. It was seen as something which could complement and strengthen the existing process of judicial review by which an individual may question a decision taken by a public authority. The Commission, however, did not have the opportunity to address this matter in the necessary depth and it has therefore decided not to make any specific proposal in relation to it at this stage but to ask for views on whether such a right should be included in the Bill of Rights and, if so, how exactly it should be worded.

The Belfast (Good Friday) Agreement 1998 seeks to protect and promote the identity and interests of both main communities in a number of specific ways:

• specific provisions to ensure that elected representatives claiming to represent the unionist and nationalist communities will have strictly proportional shares in the structures of Government in the Assembly and the Executive;

• a number of specific undertakings in respect of the promotion and protection of the Irish language and Ulster-Scots;

• a general commitment by both the British and Irish Governments under the new British-Irish Agreement (which is part of the Agreement) that whichever of them has jurisdiction over Northern Ireland will ensure "parity of esteem and just and equal treatment for the identity, ethos and aspirations of both communities";

• a similar commitment by both Governments that anyone born in Northern Ireland will be entitled to claim either British or Irish citizenship.

The Agreement, however, also contains a number of more general and specific commitments by the two Governments and the parties to respect the equality and the civil, political, social and cultural rights of all citizens.

The Northern Ireland Executive’s Programme for Government 2001-2004 also recognises the importance of rights and responsibilities in this context:

One of the principal issues for the Commission in making recommendations for a Bill of Rights is the balance between two objectives: on the one hand recognising and protecting the two main communities and on the other hand protecting the rights of all on an equal basis. The Working Group on Culture and Identity drew the Commission’s attention to the dangers of entrenching communal differences and the need to recognise the increasingly multi-cultural nature of society in Northern Ireland, as in the rest of the UK and Ireland. It therefore recommended guarantees for the rights of all ethnic and religious communities. The Working Group and a number of others during the consultation process also revealed strong support for the right of individuals not to be classified as members of a particular community against their wishes. But some others emphasised the need to take account of their perception that the core of the conflict in Northern Ireland is the existence of two main communities with divergent identities, cultures and aspirations.

The Commission’s initial recommendation is that so far as is possible both these positions should be reflected in the Bill of Rights. The Bill should therefore include some specific guarantees for the two main communities along the lines of the commitments already undertaken by the two Governments. But the main emphasis, as recommended in the Working Group report and the bulk of submissions, should be on the incorporation of relevant provisions of the Framework Convention for the Protection of National Minorities, with a view to guaranteeing the rights of members of all communities.

A similar approach should be adopted in respect of more specific language rights, as recommended in Chapter 13, by the incorporation of relevant provisions of the Framework Convention and of the European Charter for Regional or Minority Languages, to which the UK Government is already committed.

The balance between the recognition and accommodation of the two major communities and the guarantee of the rights of all can then be maintained by drawing on the distinction which is reflected in both the Framework Convention and the Charter for Languages, as well as in other minority rights conventions, between the general duties of states to recognise and protect communal groups and the more specific rights concerning culture and identity of individuals belonging to those groups.

The commitments already made by both Governments in the new British-Irish Agreement to ensure parity of esteem for both communities could be reflected in the Bill of Rights either as a general clause in a Preamble or as a series of specific duties imposed on whichever government has sovereignty in Northern Ireland.

Restricting what is a reference in the Agreement to a general objective of ensuring "parity of esteem and just and equal treatment for the identity, ethos and aspirations of both communities" to a clause in a Preamble to the Bill of Rights would provide guidance to judges and others on the interpretation of the more general provisions of the Bill without imposing any specific enforceable duties on government or public bodies. Given the difficulties outlined below of providing for parity of esteem as a right, there may be an advantage in this approach.

The alternative of imposing an enforceable duty on government and public bodies to give parity of treatment and esteem to both communities, while initially attractive, would be difficult to enforce, as the interpretations and implications of what "parity of esteem" means vary greatly. It is hard to envisage how the Government could guarantee that the two communities feel respected by each other.

The Commission therefore prefers to set out the specific rights which in its view underlie the concepts of parity of esteem and mutual respect. This approach is in line with that adopted by the Framework Convention on the Protection of National Minorities, which sets out certain standards which are to be taken as programmatic duties to be fulfilled by governments. Article 20, for example, states that: "In the exercise of the rights and freedoms flowing from the principles enshrined in the present Framework Convention, any person belonging to a national minority shall respect the national legislation and the rights of others, in particular those of persons belonging to the majority or to other national minorities". It should be noted, moreover, that, while the rights below are more explicitly aimed at parity of esteem, the Commission views the entire range of rights recommended for the Bill of Rights as providing a basis for parity of esteem among all communities in Northern Ireland. The Commission would welcome comments on whether its approach to the parity of esteem issue is the correct one.

In accordance with Article 1(vi) of the Agreement between the UK and Ireland, the Human Rights Commission suggests that the following right should be contained in the Bill of Rights:

During the initial period of consultation the Working Group on Culture and Identity and most others who addressed this issue urged the Commission to give equal protection to the identity and cultural rights of members of all distinctive ethnic and religious communities in Northern Ireland. This would give formal recognition to the increasingly multi-cultural nature of society in Northern Ireland. It should also help to avoid the dangers of entrenching the apparently simple division between the two communities by recognising the fact that many individuals have a number of different affiliations.

The prevailing view, which is shared by the Commission, is that the best means of achieving these objectives is to incorporate into the law of Northern Ireland relevant provisions of the Framework Convention on the Protection of National Minorities, to which both the British and Irish Governments are already committed. The most important of these provisions is the right, initially formulated in Article 27 of the UN’s International Covenant on Civil and Political Rights, for members of national, ethnic, religious and linguistic minorities to practice their religion, use their language and enjoy their culture.

But the Framework Convention and other recent international instruments, notably the UN’s Declaration on the Rights of Persons belonging to National or Ethnic, Religious or Linguistic Minorities, go further by imposing on states a duty to take appropriate positive measures to promote full and effective equality for members of minorities and to promote the conditions necessary for them to maintain and develop their culture and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage, and to avoid policies or practices aimed at assimilating into the dominant culture against their will. These rights and duties are balanced by further provisions guaranteeing the rights of individuals not to be treated as members of a minority against their will and requiring states to promote mutual tolerance and to ensure that members of each minority receive appropriate education on the identity and culture of other communities.

The Commission has decided in the light of advice from experts in the field, notably the legal adviser of the High Commissioner for Minorities at the OSCE (Organisation for Security and Co-operation in Europe), that in the particular circumstances of Northern Ireland it would be desirable to avoid the use of the term "minority" and to replace it with the term "community". This would help to avoid complaints that one or other community is being given preference over others and should help to reassure members of the current majority community that recognising the rights of other communities does not involve any reduction of their own rights.

The Commission is also of the view that the term "community" should be given a broad definition with a view to including well-established immigrant communities such as the Chinese, Indians and Muslims, as well as those, such as the Travellers, who would more clearly be covered by the term "national minority" in the Framework Convention. The term ‘culture’ is not defined explicitly below, but is intended to be read broadly in interpreting rights of members of communities. In relation to Travellers, for example, the right to culture would include the right to a nomadic or semi-nomadic lifestyle. For clarification, however, the Commission recommends that a special clause be included in the Bill of Rights dealing with the right to be nomadic.

The conferring of a right freely to choose not to be treated as a member of a particular community would obviously have implications for existing monitoring requirements in Northern Ireland. The Commission does not want to undermine the rationale for such requirements and would therefore welcome comments on whether, and if so how, such a right should be conferred.

The Commission therefore recommends the inclusion in the Bill of Rights of the following clauses, which largely follow the wording of Article 27 of the UN’s Covenant and the Framework Convention. It would appreciate comments on whether it has struck the right balance in this context, particularly as this is a difficult area in which to frame appropriate legal provisions.

The Commission believes that the above proposals would not provide a basis on which to challenge what is said in the Belfast (Good Friday) Agreement about voting mechanisms in Northern Ireland. However, some Commissioners wanted this to be made explicit by providing a second part to clause 1 above, stating:

Some Commissioners also believed that substituting the term "community" for "minority" in the Framework Convention changed the impact of that Convention and that the Agreement’s provisions relating to mutual respect and parity of esteem should be expressly built upon. On this view it would be possible to fashion what is in effect a right to parity of esteem which incorporates language from the Agreement and the Framework Convention standards, while still not using the language of "majority" or "minority". Under this option, in place of clauses 2 to 4 above, the following clause would apply.

2. The Government and public bodies shall adopt effective and appropriate measures to ensure:
1. mutual respect for all people in the diversity of their identities and traditions; and
2. parity of esteem and just and equal treatment for the identity, ethos and aspirations of both communities; the programmatic standards in the Framework Convention shall provide a guide as to how this is to be achieved.

Other provisions of the Framework Convention more directly related to education and language rights are discussed below in Chapters 11 and 13 respectively.

One of the ‘gaps’ identified in the European Convention on Human Rights is the absence of a free-standing provision guaranteeing equality or imposing a positive obligation on the state to redress inequality. Article 14 of the Convention only provides a guarantee against discrimination for the rights included in the European Convention:

Protocol 12 to the Convention, which the UK Government has not signed or ratified, extends the non-discrimination provisions in Article 14 but still does not address equality more positively (see Appendix 3). But national constitutions drafted in the last 10 or 20 years, for example in Canada and South Africa, have included extensive equality rights, such as a free-standing right to equality "before and under" the law as well as "equal protection" of the law. On an international level, multilateral treaties have incorporated similar provisions, such as Article 26 of the UN’s International Covenant on Civil and Political Rights, which asserts that "all persons are equal before the law," and Article 20 of the European Union’s Charter of Fundamental Rights, which reads "Everyone is equal before the law."

The European Convention, drafted in 1950, does not reflect the present-day expectation that the state should not only respect, but also protect and advance, equality. Current legislation and obligations under the EU Directives on equal pay and treatment create a much stronger onus on the state to ensure that in practice everyone has fair access to employment, public resources and facilities. Northern Ireland is also subject to its own laws, soon to be consolidated into a Single Equality Act, which mandate programmes and monitoring to achieve equal treatment and equal opportunity in practice. The "particular circumstances" of Northern Ireland necessitate more extensive equality rights than those found in Article 14 of the European Convention. The question of equality has been one of the main issues during the conflict here. This is reflected in equality legislation and in the equality provisions of the Belfast (Good Friday) Agreement and the Northern Ireland Act 1998, in particular the statutory equality duty imposed by section 75. The Agreement specifically requires the Human Rights Commission to consider "a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors". It also makes clear the commitment of all the parties to equality by referring to equal opportunity and equal treatment. Implicit in the commitment to the right to equal opportunity, to freedom from sectarian harassment and to the right to full and equal participation (as specifically enumerated for women in the Agreement) is the duty on the state actively to work towards the abolition of inequality of treatment before and under the law.

The remit of the Commission, as stated in the Agreement, is to advise the government as to "a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors". The Bill of Rights for Northern Ireland must therefore recognise this duty and help foster attitudes and mechanisms by which equality can be a reality for everyone. The Commission supports the draft language submitted by the Working Group on Equality and notes the broad public support for the right to equality and positive action as well as for the prohibition of direct and indirect discrimination.

Best international practice also highlights an approach to equality rights which uses both equality and non-discrimination provisions. The Commission has drawn particularly from the European Union Charter of Fundamental Rights, the Canadian Charter of Fundamental Rights and Freedoms and the Bill of Rights chapter in the South African Constitution. UN treaties which address gender and race issues also employ provisions which prohibit discrimination and which require states to enact measures to address inequality.

As discussed above, guarantees of equality are of primary importance in the aspirations of the Agreement. Equality pervades the current institutional and political arrangements of Northern Ireland, depicted in the duty to equality proof legislation and in the promise to serve equally contained in the Pledge of Office for Members of the Assembly. The Bill of Rights can entrench these rights, making them legally enforceable and conferring an element of permanence. "Equality before and under the law," as well as rights to "equal protection and equal benefit of the law", are phrases which should help courts and legislatures to consider whether the law provides effective equality in practice.

The first element of this clause is taken from the European Union’s Charter of Fundamental Rights and the second is taken from the UN’s Convention on the Elimination of Discrimination Against Women. This provision is further discussed in Chapter 5 of this document, on the rights of women.

Unlike Article 14 of the European Convention, the clause above extends to all rights guaranteed by law, not just to those listed in the European Convention or in this Bill of Rights. Protocol 12 to the Convention, although not yet ratified by the UK, works similarly to strengthen Article 14 by extending protection from discrimination to rights which are outside of the Convention (see Appendix 3 for the text of Protocol 12).

The Commission has chosen the phrase "right to be protected" in order to create a positive duty on the state to prevent discrimination rather than merely prohibit it.

The proposed clause includes grounds not listed in Article 14, such as ethnic origin, marital or family status, residence, possession of a conviction, disability, parentage and sexual orientation. These additional grounds reflect the need to protect vulnerable groups within Northern Ireland.

The list of grounds protected from discrimination is not exhaustive. "Other status" allows the clause to remain flexible as the groups needing protection change over time. For example, the family members of individuals convicted of crimes are often the object of discrimination because of their kinship with an ex-prisoner. People who are transgendered also frequently suffer from improper discrimination. The term "other status" would allow such individuals to be protected.

The inclusion of "status as a victim" as a ground for protection against discrimination needs further consideration in the next consultation period. Such status is not yet included as a protected ground in other international non-discrimination documents but the Commission has been made well aware that in Northern Ireland victims of crimes are often put at a disadvantage when, for example, they seek employment or access to social services and public facilities. This document addresses the topic of victims’ rights more specifically in Chapter 8.

This clause draws from the text of the EU’s Equal Treatment Directive. As recognised by the European Court of Justice, not all difference of treatment equates to discrimination. The definition of direct discrimination makes it clear that illegal discrimination occurs when the source of disadvantage is a personal or group characteristic, such as one of the protected grounds in the non-discrimination clause set out above. The definition also minimises the need to find a comparator when establishing the existence of inequality and relies instead on proof of disadvantage. The direct discrimination clause will work in conjunction with the positive action clause (see below) to ensure that remedial measures which aim to reduce disadvantage are not found to be discriminatory.

The European Convention on Human Rights lacks an explicit provision for indirect discrimination, but the European Court of Human Rights has interpreted Article 14 of the Convention as prohibiting actions the "object or result" of which discriminates. However, establishing the existence of indirect discrimination is less than certain when relying on interpretation of Article 14 and, as stated by the European Court, places the burden of proof upon the applicant to prove that a neutral provision or action is discriminatory. EU Directives have tried to remedy these problems by clearly defining indirect discrimination and by lessening the weight upon the applicant to establish discrimination.

The proposal of this Commission looks beyond the intent of the actor to the impact of the action. It would extend the current EU Directive on Burden of Proof to all legal proceedings concerning discrimination in Northern Ireland. Further, the provision would apply to all persons in Northern Ireland and to all the grounds listed in the Bill’s non-discrimination clause (clause 4(4)).

Provisions within the EU’s Treaty of Amsterdam, the Framework Convention and the UN’s Convention on the Elimination of all Forms of Racial Discrimination apply to private entities as well as to public facilities. Whether or not individuals or non-governmental entities can claim indirect discrimination against other private persons is not explicit in the Commission’s clause and is left to the interpretation of the courts and to further legislation.

The issue of harassment made frequent appearances in submissions to the Commission. Many people argued that harassment and intimidation in the workplace on the grounds of political opinion or gender should be outlawed. Submissions were also concerned with harassment and bullying within the education system. Although Chapter 8 of this document, on the rights of victims, addresses harassment indirectly, the Commission believes that harassment and bullying should be recognised as powerful forms of discrimination.

In Chapter 6 the Commission raises the possibility of including in the Bill of Rights the related right to personal and/or physical integrity.

The Commission, noting the extent to which positive action is required by the Agreement and by section 75 of the Northern Ireland Act 1998, is recommending a clause which clarifies and legitimises positive action, an essential tool for realising equality.

The strength of the positive action clause is an issue needing further consultation and deliberation. The EU law couches positive action as both a requirement and a possibility. For example, the EU Directives allow for positive action as legitimately different treatment under provisions defining indirect discrimination. However, the Treaty of Amsterdam’s reference to combating discrimination through "appropriate measures / action" implies that states are obliged to enact positive measures. UN Conventions also use language urging states to adopt appropriate legislation and to establish legal mechanisms to eliminate discrimination.

Consultation with the public and the recommendations from the Working Group on Equality both indicated strong support for a clause requiring positive action. Such a clause would protect positive action against challenge from equality provisions, indicating that positive action is a component of equality rather than something which runs counter to it. In requiring the Government to take positive action, were current positive action provisions to be dismantled, new provisions would have to be put in their place. Others disagree with this view, either because it does not make clear what positive action is required or because they do not want what they see as political issues dealt with by legal provisions. The Commission therefore invites further comment on whether the Bill of Rights should make positive action something which is required or something which is permitted.

The Commission also discussed the appropriateness of the term "disadvantaged" in the positive action clause. The term finds resonance in documents such as the South African Constitution and is one of the primary means by which "unfair" discrimination is determined. As used in this proposed Bill of Rights, the term, like the category "other status", is meant to be broad enough to change as the contours of groups seeking protection change. The non-discrimination clause helps to clarify the meaning of "disadvantaged groups".

This proposed clause reflects the test for finding discrimination as constructed by the European Court of Justice. The wording recommended by the Commission expands upon the Court’s interpretation by necessitating a "genuine and determining requirement". We return to this point in Chapter 11, on education rights, where we provisionally propose that the current general exemption of the teaching profession from the fair employment laws should be abolished and replaced with an exemption based on whether there is "a genuine occupational qualification".

The Belfast (Good Friday) Agreement 1998 recognises the need to promote the status and participation of women in Northern Ireland, in the hope of not only achieving a more equitable society but of establishing a stable and lasting peace. The Agreement document implicitly affirms women’s rights in references to the protection and promotion of equality, and explicitly does so by recognising "the right of women to full and equal political participation".

On several indicators the position of women in Northern Ireland is worse than it is elsewhere in these islands. The level of domestic violence, for example, is very high and the level of female participation in political life is very low. There has never, moreover, been a female High Court judge in Northern Ireland.

As a signatory to the UN’s Convention on the Elimination of Discrimination Against Women, the UK is already committed to adopting "appropriate legislative and other measures" to ensure the equal exercise and enjoyment by women of all rights. Equality legislation in Northern Ireland, specifically with regard to employment and education, also aims to address disparities in treatment and opportunity for women across all communities through positive measures. Given these commitments, the Bill of Rights is an appropriate reflection of these efforts and a powerful medium to address the acute disadvantage women suffer by virtue of their gender.

The purpose of the Commission’s initial decision to mainstream gender-specific issues rather than create a separate working group was to incorporate concerns for women’s rights in each of the other groups. However, while working groups did highlight some issues concerning gender, the importance of these tended to be overshadowed by the recommendations specific to the remit of each group and seldom found expression in the text of the working groups’ proposed clauses for the Bill of Rights.

The submissions from the public and the events held with groups from the women’s sector, however, consistently yielded four themes for consideration in the drafting of the Bill of Rights: (1) persistent gender inequality, (2) the inadequacy of reproductive rights, (3) under-representation in the political process and (4) the prevalence of violence against women and girls. The Commission believes that these rights should be entrenched and legally enforceable. We therefore recommend the inclusion of the right to gender equality, the right to adequate and accessible reproductive health care, a state duty to promote fair, full and effective participation in public life and freedom from gender-based violence, such as domestic violence and sexual assault.

Each of the clauses illustrate best international practice, being comparable to provisions in international conventions as well as in the constitutions of other nations. The Fourth World Conference on Women, the UN’s Convention on the Elimination of Discrimination Against Women, the EU Charter of Fundamental Rights and the Constitutions of South Africa and Canada, in particular, all recognise that the mere prohibition of sex discrimination is not sufficient to address the complexities of disadvantage which women suffer.

The Commission considered two options regarding the inclusion of gender specific rights in the Bill of Rights. The first was to incorporate rights to equality, reproductive health care, participation and freedom from violence in a separate section entitled women’s rights. The second was to place these rights under related headings. After further deliberation, the Commission agreed to incorporate the rights in the related chapters but also to include a chapter of commentary at this point in the document to explain the approach and the origin of each provision. The other chapters involved here are as follows:

• Equality between men and women:

see Chapter 4 (1), Equality and non-discrimination;

• Right to reproductive health:

see Chapter 14b (5), Social, economic and environmental rights;

• Freedom from gender based violence:

see Chapter 8c (1), The rights of victims;

• Right to fair, full and effective participation:

see Chapter 2b (2), Democratic rights.

The purpose throughout this Bill is to meet the needs of Northern Ireland’s most vulnerable communities, of which women are a systematically disadvantaged group. The intent of the Commission is not to create a hierarchy of rights. As such, the Commission welcomes comments on what format would be most effective for expressing the rights of women. It would also welcome comments on additional rights that address issues important to women.

Question 14:

The guarantee of equality and non-discrimination provided for in Chapter 4 applies to all individuals in Northern Ireland, including women. The inequality between women and men, however, pervades and informs all other types of discrimination and is arguably the root of so many gender abuses. A provision which deals specifically with gender equality, even if it has the same legal weight as the general equality provision, carries a symbolic and an interpretative value. It demonstrates a commitment on the part of the state to safeguard and promote gender equality and work towards a society wherein gender does not confer a disadvantage. The statement prompts courts and legislators to consider whether laws and practices adversely affect women and perpetuate inequality between the sexes.

The European Court of Human Rights, as well as the European Court of Justice, has consistently recognised equality of the sexes as a major goal of the majority of Europe. The EU Equal Treatment Directive deals primarily with employment practices, extending to matters such as pregnancy, maternity and social security. Constitutions of other nations often highlight the particular need for the state to recognise and act upon the inequality between men and women. Examples would be Canada, Germany and Sweden.

The first sentence of our clause is taken from the EU Charter of Fundamental Rights, although it omits the reference to employment and pay. The second sentence reflects a provision in the UN’s Convention on the Elimination of Discrimination Against Women. The Commission is seeking to create a general right to gender equality for men and women as well as a positive obligation on the state to support the realisation of equality. The duty to take "necessary measures" corresponds to the state’s obligation under the general positive action clause in Chapter 4.

The issue of women’s rights in respect of reproduction, and especially the issue of abortion, has been one of the most controversial in the Commission’s consultation to date on the Bill of Rights. Forceful and deeply felt submissions have been made both in respect of a right to life for unborn children and in respect of a right of choice for women. There is no clear international standard in respect of the underlying issues. The Commission has therefore concluded that it would be inappropriate for it to suggest that the matter can be resolved by the Bill of Rights. Matters of this kind are, in the opinion of the Commission, best dealt with by legislation which seeks to accommodate differing positions.

There appears to be greater consensus on the question of access to appropriate reproductive health care and to associated information. The Working Group on Social and Economic Rights recommended the inclusion of a right of access to reproductive health care in its proposed formulation of a right to health care. This approach is also reflected in current international standards as set out in, for example, the conclusions of the 1995 World Conference on Human Rights in Vienna:

The right of women to decide in matters of reproductive health has also been asserted in the Programme of Action of the International Conference on Population and Development and in the Beijing Platform for Action agreed at the Fourth World Conference on Women. In addition, the European Court of Human Rights has ruled in Open Door Counselling and Dublin Well Woman Centre v Ireland (1992) that the denial of access to information about abortion services and related issues is a breach of the European Convention of Human Rights.

Reproductive health also depends on factors beyond the control of health professionals, such as timely access to services and information, proper education on sexual health and the freedom to make decisions concerning reproduction free from violence and coercion. As such the Commission considers the right to reproductive health care as a package of rights, intended to safeguard the freedom to make choices.

(see 8c(1))

The Fourth World Conference on Women (through the Beijing Platform for Action) and the UN’s Convention on the Elimination of Violence against Women provide the models by which this clause was drafted. The Commission again believes that a duty imposed on the state is an essential aspect of making the right effective.

Although guarantees of social care and respect for victims’ rights are recommended in Chapter 8, the violence women suffer is unique and pervasive, whether it is in the home, on the street or at work. The 1996 British Crime Survey reveals that one in three women report having suffered domestic violence sometime in their adult life. The problem is no less gendered or severe in Northern Ireland and, sadly, is steadily increasing. Police statistics gathered in 2000 revealed that women make 88% of all domestic calls in Northern Ireland, over half of which involve some sort of physical and/or sexual assault. The Northern Ireland Women’s Aid Federation, as of 2000, provided refuge to 9.6 times the number of women it had ten years previously. This violence is a manifestation of women’s inequality of status and ineffective access to the legal system.

The intent of the Commission is to affirm that violence against women is a real and serious problem needing to be addressed with all appropriate and effective resources of the state. The entrenchment of this right not only makes the rights of abused women directly enforceable in court, but legitimises the need to report assault and encourages the state to create avenues of social support and strengthen legal remedies. The clause is included in Chapter 8 regarding victims’ rights to ensure that the definition of  "victim" and, consequently, the rights guaranteed to victims, refer to the physical dimension of violence as well as to the emotional and mental aspects of abuse. The definition of victim, when read in the light of the prohibition of violence against women, widens the definition of assault beyond domestic violence and rape to sexual harassment, gender-specific bullying or other practices the results of which constitute abuse.

(see 2b(2))

Women, although forming more than half the population of Northern Ireland, are still severely under-represented in public life here. As of 2000, women held only 14% of Assembly seats and only 31% of all public bodies had appointed women. Although the culture is changing to accept and encourage more women to participate in politics, the right to participate is important enough to require a duty to be imposed on the state to promote participation. A statement encouraging participation in public life affirms and extends the right to equality between the sexes. It is specifically mentioned in the Agreement as a right to which the parties are committed and should therefore be included in a Bill of Rights for Northern Ireland.

7. Rights to life, freedom from torture, inhuman or degrading treatment or

Article 2 of the European Convention on Human Rights (the right to life) is recognised by the European Court of Human Rights as being one of the most fundamental provisions in the Convention. The Article allows the state to deprive an individual of his or her life under certain circumstances, but these have been interpreted quite strictly by the Court. The Court has also stated that the Article imposes positive obligations on the state (eg to conduct a thorough and prompt investigation of deaths (Jordan v UK, 2001), to provide "practical and effective safeguards" (McCann and others v UK, 1995) and to take "preventative and operational measures" when life is at risk (Osman v UK, 1998 and A v UK, 1998). Since the main part of the Convention was drafted in 1950, moreover, the international community has strengthened the right to life by adopting other documents, such as Protocol 6 to the European Convention – on the abolition of the death penalty – the UN’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990) and the UN’s Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (1989).

The Commission, where appropriate, wishes to leave the wording of Articles in the European Convention unaltered. In this context, however, the Commission believes that the exceptions for law enforcement within the Convention are currently too broad and do not mesh well with the Commission’s proposed provisions regarding criminal justice and victims. It therefore suggests that a new paragraph 3 be added to Article 2 reflecting the text of the UN’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

The rights to be free from torture and inhuman or degrading treatment or punishment, as well as from slavery and forced labour, are rights which the European Convention does not permit to be qualified in any way. The Commission did not therefore find it necessary to propose any amendments to the text of the Articles in question (Articles 3 and 4), but it recognises the importance of their inclusion as fundamental freedoms in the Bill of Rights. It also understands that the right not to be held in slavery includes the right not to be held in sexual slavery, although this is not a problem particular to Northern Ireland.

The amended Article 2 of the European Convention would therefore read as follows.

1. in defence of any person from unlawful violence;
2. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
3. in action lawfully taken for the purpose of quelling a riot or insurrection.

1. when the official is acting in self-defence or defence of others or when there is an imminent threat of death or serious injury;
2. to prevent the perpetration of a particularly serious crime involving grave threat to life; or
3. to arrest a person who is presenting such a danger as in (b) and who is resisting the arrest;

The ratification of Protocol 6 by the UK government nullifies the exception for the death penalty in the latter half of Paragraph 1. The Commission has not opted to supplement Protocol 6.

Paragraph 3 qualifies paragraph 2 by specifying more precisely the situations in which a law enforcement official can lawfully deprive someone of his or her life. It reflects the Northern Ireland experience of many years of emergency legislation, during which some of the checks and balances usually applied to the use of lethal force by members of the security services were suspended.

The Commission deliberated on whether or not to add to the final phrase of paragraph 3 the following words (as found in the UN’s Basic Principles): "In any event, intentional lethal force may only be used when strictly unavoidable in order to protect life". Such additional words would strengthen the clause still further, narrowing the instances where law enforcement can legally deprive a person of life. The Commission would welcome views on whether such words should be inserted into the paragraph.

The phrase "physical integrity" is mentioned in the proposed clause pertaining to harassment in Chapter 4(7), but a number of submissions to the Commission highlighted concerns about the protection and safety of individuals’ physical well-being, their homes and their neighbourhoods, as well as the right to develop one’s own personality. A number of other human rights instruments explicitly grant a more general protection to the right to personal or physical integrity. Article 2 of the German Constitution, for example, provides:

The Commission is keen to gather views on whether a clause on personal and/or physical integrity should be included in the Bill of Rights and, if so, how it should be worded.

7. Criminal justice and administrative justice

Articles 5 and 6 of the European Convention on Human Rights already provide substantial guarantees of liberty, security of the person and fair and public hearings by independent and impartial courts. However, the Commission feels that in several respects the rights already provided for in the Convention need to be supplemented in order to reflect the particular circumstances of Northern Ireland.

In this regard the particular circumstances of Northern Ireland include the following:

• More than 3,500 people have been killed in the conflict since 1969, which suggests that the right to security of the person under Article 5 of the European Convention may not have been as fully protected as it might have been during that period; nor does the European Convention specifically protect the rights of victims of lethal force, although recent decisions of the European Court of Human Rights suggest that the Convention imposes a positive obligation on the state to investigate crimes thoroughly, promptly and impartially.

• For the whole period of the conflict emergency laws were in place in Northern Ireland and under these laws many thousands of people were arrested and detained in special holding centres for which no separate legislative provision ever provided; only about 25% to 30% of these people were charged with offences, and not all of these were convicted of scheduled offences or indeed of any offence.

• The emergency laws permitted searches of homes and other premises in situations where searches would not have been permitted under the ordinary laws, yet little information was made public about the "success rate" of such search operations.

• During most of the period of the conflict special juryless courts were operating in Northern Ireland, creating a two-tier system of criminal justice; these courts operated with special rules of evidence, for example, the use of special rules governing the admission of confessions.

• People under the age of 18 were subject to virtually the same emergency laws as adults and the juvenile justice system continues to operate in ways which no longer apply in the rest of the UK.

The official report of the Review of the Criminal Justice System, released in March 2000, acknowledged that human rights and dignity should be core values of the criminal justice system in Northern Ireland. The principles guiding the Review were similarly based on international standards and on the need to consider how the criminal justice system impacts on different categories of people, what mechanisms there are for accountability and how to increase knowledge of and access to criminal justice provisions. With this in mind, the Commission supports and seeks to build upon the work of the Review.

The Commission also received very helpful advice on criminal justice rights from the Working Group which reported in December 2000. It has since considered that advice, together with the views submitted on the topic by individuals and groups and the provisions contained in other international and national human rights documents. For discussion of children and the criminal justice system, refer to Chapter 10 on the rights of children.

In addition to what is currently contained in Article 5 of the European Convention, the Commission proposes that the following should be listed as supplementary rights:

This clause would have the effect of altering the impact of what is now widely considered to be the inappropriate language of Article 5(1)(e) so as to ensure that within Northern Ireland no detention based purely on the ground that a person belonged to one of the categories mentioned could ever be "lawful". For the detention to be lawful some further requirement would need to be satisfied (eg that the person could reasonably be considered to be a serious danger to him- or herself or to others).

This clause expands upon the rights protected by the European Convention by making explicit a protection against unreasonable search or seizure. Although no study has yet been made of the relationship between the number of searches carried out in Northern Ireland during the conflict and the number of charges subsequently brought against individuals, anecdotal evidence strongly suggests that search and seizure was used to harass certain sections of the community. Further concerns have been expressed about the balance struck in more recent "ordinary" legislation between the protection of human rights and the prevention and detection of criminal activity. The language in the provisions above seeks to reflect the principles established by the European Court of Human Rights, which, for example, has insisted upon police powers being predicated upon "reasonable suspicion".

European Court jurisprudence in recent cases related to Northern Ireland has made it clear that effective access to legal advice is essential to a suspect’s pre-trial rights. But at present neither domestic law nor European law allows individuals to have complete freedom of choice as to which lawyer should provide the advice. The Commission would welcome views on whether persons arrested should have the right to consult a solicitor of their choice and, if so, what, if any, limitations should be placed on this right.

While the practice of detaining an individual without contact with family or friends has significantly decreased in Northern Ireland in recent years, the Commission feels it is important that freedom from incommunicado detention be made an explicit right in the Bill of Rights. Principle 19 of the UN’s Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment specifies that a detained person shall "have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations". The intent is to allow detained individuals to contact those persons who provide personal or professional support. The South African Constitution, for example, allows access by next-of-kin, spouses, partners and religious and medical professionals, within reasonable time and subject to reasonable restrictions.

As noted by the European Committee for the Prevention of Torture in 1994, holding centres in Northern Ireland lacked facilities appropriate to the physical and mental health of detainees. The clause above seeks to provide a standard of treatment and care consistent with the dignity of the individual, a value affirmed throughout this Bill of Rights. The humane treatment of detainees creates an obligation on the state not only to provide material provisions but also to monitor and evaluate whether the place of detention consistently provides for a detainee’s basic needs.

The Commission notes the reports detailing complaints of ill treatment of suspects in Northern Ireland (eg the Bennett Report 1979 and the 1994 Report of the European Committee for the Prevention of Torture). While the jurisprudence of the European Court of Human Rights does not explicitly guarantee the presence of a lawyer at all stages of questioning or the right to record questioning, the Commission notes that Northern Ireland’s legislation requires recording, audio and/or visual, during interrogation. Audio-recording, currently required under the provisions of the Police and Criminal Evidence (NI) Order 1989 and the Terrorism Act 2000, and video-recording, currently required only by the Terrorism Act 2000, in all detention situations would offer the proper safeguards against ill-treatment.

The European Convention on Human Rights currently guarantees the right to an interpreter during the trial process. The Commission wishes to extend this right so that it applies at all stages of police questioning and detention. Submissions from the ethnic minority communities expressed concern that members of their communities are at a disadvantage upon arrest if authorities are not obliged to ensure that all rights and questions are communicated in a language understood by the suspect. A right to an interpreter would also protect the rights of those needing to avail of sign language or other communication aids.

The trend in international criminal law is to maintain the integrity of the right of silence throughout the legal process, before and during trial (see, for example, the Statute of the International Criminal Court and the rules governing the War Crimes Tribunals for the Former Yugoslavia and Rwanda). The Commission thinks it is appropriate to make the right of silence applicable to the pre-trial process in Northern Ireland as well. This would call into question provisions of the Terrorism Act 2000, which currently allow inferences to be drawn from a person’s failure to disclose membership of, or participation in activities of, certain proscribed organisations. It may, however, be that such provisions would remain because they represent a lawful limitation on the right of silence, one that is "reasonable and justifiable in an open and democratic society" as required by the clause on limitations set out in Chapter 16 below.

The Commission believes that limiting the ability to detain a suspect will encourage more appropriate use of arrest powers. The purpose of detention should be to interrogate a suspect on existing evidence, not to gather intelligence information. In any event the vast majority of detentions in Northern Ireland (except those occurring under the emergency laws) already endure for no longer than 24 hours.

There should be a clear presumption that those charged with criminal offences should be admitted to bail. The European Court of Human Rights has concluded that a person must be released pending trial unless the state can show that there are "relevant and sufficient" reasons to justify continued detention. It is important to make clear that unsubstantiated allegations are insufficient to justify detention. In the Commission’s view, detention should be a last resort and used only when release of the accused would jeopardize public safety.

Such an obligation on law enforcement officials to inform an individual arrested of his or her rights would mirror the famous Miranda v Arizona judgment of the United States Supreme Court (1966). The communication of rights must take place in an effective manner, relying on an interpreter if necessary.

1. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
2. to have adequate time and facilities for the preparation of his defence;
3. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
4. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
5. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

In addition to what is currently contained in Article 6 of the European Convention, the Commission believes that the following provisions should be listed as supplementary rights:

The Commission believes that this clause reflects the current position regarding persons detained for offences in Scotland. If such rules work satisfactorily there the Commission sees no good reason why they should not also work satisfactorily in Northern Ireland.

Under European Convention law, inferences can be drawn from a person’s silence at his or her trial in very limited circumstances. The Commission is in favour of strengthening the right of silence. This would, admittedly, throw into doubt the current law as represented by the Criminal Evidence (NI) Order 1988. But the right would still be subject to limitations which complied with the limitations clause set out in Chapter 16.

The departure from jury trials for some serious offences in Northern Ireland was a response to the emergency situation. The Commission believes that the improved political and legal circumstances of Northern Ireland now negate the justification for non-jury trials. A jury can provide an important check on the judiciary’s power. The Commission, however, is also aware that mandating a jury trial might not be consistent with the other fair trial provisions of Article 6 in the European Convention. Often, especially in emotionally charged cases attracting broad public attention, finding an objective jury and then insulating the jurors from media and public scrutiny can be a difficult task. Juries are also not required to give reasons for their decisions. If our clause were to stand, moreover, a definition would need to be provided as to what constitutes a "serious" offence.

The Commission is concerned that, especially during the conflict in Northern Ireland, confessions and evidence extracted by coercive and violent means were used to convict persons unfairly. The proposed clause is informed by international standards such as those found in the UN’s Basic Principles on the Role of Lawyers, the UN’s Basic Principles on the Independence of the Judiciary and the South African Constitution.

This clause is based on Article 2 of Protocol 7 to the European Convention, which the UK Government has not yet ratified (see Appendix 3 for the text of Protocol 7).

Article 4 of Protocol 7 provides that no one shall be liable to be tried or punished again for an offence for which he or she has already been acquitted and the UN’s Covenant on Civil and Political Rights contains a similar provision. Further, submissions relevant to criminal justice and the Working Group on Criminal Justice also advocated a right to freedom from double jeopardy. The Commission, however, is unsure whether to include such a right in the proposed Bill of Rights.

The Commission agrees that as a general rule a competent court, ruling on the innocence or guilt of an individual, should have that judgment revisited only in terms of an appeal. Otherwise there is a risk that suspects who have already been acquitted could be seriously harassed. However, the Commission also feels that when new damaging evidence that can be substantiated comes to light, the person implicated should have to answer for those developments. The UK Government has already signalled its intent to reduce the protection against double jeopardy in England and Wales. The Commission would therefore particularly welcome views on whether a double jeopardy provision should be included in the Bill of Rights for Northern Ireland.

Question 19:

The Commission recognises that fundamental to the notion of a fair trail is fair treatment and process for those who assist in the legal system, whether serving as a witness, lawyer or judge. The clauses above are drafted from the UN’s Basic Principles on the Role of Lawyers and the UN’s Basic Principles on the Independence of the Judiciary. The issues have particular salience in Northern Ireland, as there have been many cases where there has been threatened or actual violence against witnesses, lawyers or judges. The Commission’s intention in including these provisions is to make explicit the right for those acting on behalf of the defendant or the state to accomplish the tasks of their profession or service without the undue constraint of harassment or interference. The clause referring to the judiciary complements the protection for witnesses and lawyers by obliging judges to be mindful of undercurrents that might affect the effectiveness and fairness of a trial and to remain objective in their position.

The three clauses above are interdependent and draw upon the UN’s Standard Minimum Rules for Non-Custodial Measures. The Rules call for a contextual approach to sentencing, taking into the account the "nature or gravity of the offence, the background of the offender, the purposes of sentencing and the rights of the victims." Thus, only in instances where the crime and personality of the offender merit imprisonment should imprisonment be imposed.

Once a sentence has been served, the individual has as much right to re-enter society as a law-abiding citizen. Failure to allow such reintegration could severely damage the psychological health and well-being of the individual concerned and of his or her family. The formulation above is based upon the UN’s Basic Principles for the Treatment of Prisoners.

The non-discrimination clause in 4(4) prohibits discrimination on the basis of a person’s previous conviction(s), subject to the qualification contained in the exceptions clause, which is that the characteristic used to discriminate is a genuine and determining requirement. The Commission refers to "conviction" as a protected ground, rather than "political conviction", in order to create a level playing field and avoid the appearance of a hierarchy of prisoner status.

The Commission is mindful that the requirement to take "effective measures" imposes a positive duty on the state to help prevent discrimination against and foster the reintegration of former prisoners.

The Commission has no recommendation to make concerning rights supplementary to those already protected by Article 7 of the European Convention on Human Rights.

Article 6 of the European Convention (see page 49) confers rights within the criminal justice system and, to a lesser extent, within the civil justice system. But the Commission feels that fair process rights should also be provided within the field of administrative justice and to date the European Court of Human Rights has not given clear guidance on the extent to which Article 6 applies in that context. The above provisions mirror section 33(1) and (2) of the South African Constitution. They do not change the existing grounds for judicial review of administrative action, nor do they necessarily change the existing process for applying for judicial review. The grounds for judicial review asserted by the House of Lords in Council of Civil Service Unions v Minister for Civil Services (the GCHQ case) [1985], namely illegality, irrationality and procedural impropriety, can be compared with the clause’s guarantees of "lawful, reasonable and procedurally fair".

The requirement of reasonableness resembles the current so-called Wednesbury test used in judicial review cases. However, the Commission’s formulation possibly expands the current interpretation of "reasonableness", which requires the administrative action to be "so unreasonable that no reasonable decision maker could have taken it." The courts in Northern Ireland have not traditionally examined whether the action taken was proportionate, but the influence of the European Court of Human Rights may soon influence the courts here to adopt a standard closer to that of proportionality. Proportionality could eliminate the need for a comparison to be made with a similarly situated official. Further, ensuring a right to reasonable action places a weightier burden on the state to justify its decisions than under the current Wednesbury test. Establishing whether administrative action was reasonable would engage the courts in assessing whether the purpose behind the action was legitimate in balancing the state’s objectives and the individual’s rights. For further discussion of remedies under the Bill of Rights, see Chapter 18, on enforcement.

7. The rights of victims

The Northern Ireland Executive’s Programme for Government 2001-2004 makes it clear that the rights of victims are particularly important for the future of Northern Ireland:

Providing for victims has been one of most difficult issues facing the Commission. The consultation revealed widespread agreement that the rights of victims, both those arising from the conflict and more generally, should be included in a Bill of Rights. But there was less consensus on how the issues should be approached. The relevant Working Group report recommended a lengthy list of quite detailed rights for a very wide range of victims of criminal and other culpable conduct, ranging from rights to full restitution and compensation to specific rights of involvement in any criminal investigations and proceedings against perpetrators.

The Commission’s general approach to these issues is that it is not practicable to deal with the issues which arise from many years of conflict and the need to set standards for the future in an identical manner. We have also had regard to the relevant UN standards in this context, including the Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law (1999), but have had to be selective in our reliance upon them.

The demand that the continuing hurt and suffering arising from the past conflict should be addressed in a positive way cannot be ignored. But the difficulties of ensuring that all those who have suffered hurt or injury during many years of communal conflict are granted equal rights of investigation, compensation and restitution are quite daunting. It would mean re-opening a huge number of cases, some of which have already been settled in civil and criminal courts and in many cases this could well increase the strain of further legal proceedings on all those involved without the certainty that what they would regard as effective justice could be achieved. Different countries have dealt with the past in different ways. Some have focused on accountability for the most serious perpetrators while others have moved towards closure on the past based on an acknowledgement of the responsibility of participants in the conflict and a commitment to sympathetic and fair treatment of the continuing suffering and loss of surviving victims and their dependants.

In formulating rights for victims of the conflict it is essential to adopt a broad and inclusive approach so that the suffering and hurt of all those affected can be adequately addressed. The objectives underlying any formal provisions in the proposed Bill of Rights should be:

• an opportunity for those who have suffered, if they wish to do so, to tell their story;

• an acknowledgement of the loss and suffering of all victims of the conflict, their families and their dependants;

• the need for an independent and public process, with international involvement, for dealing with the past;

• a commitment to fair and non-discriminatory treatment and to the provision of appropriate care and support for all those affected.

The Commission accepts that the process by which the first three of these principles should be implemented, whether by some form of truth and reconciliation commission or otherwise, is a matter for further and more detailed discussion by all those involved. But it is clear that some further action is required. The fourth principle can be more directly addressed.

In respect of the future, the objective should be to set new standards for the rights of victims in the investigation and prosecution of criminal offences and other forms of abusive conduct. These should be based on the principles that victims should be accorded appropriate involvement in legal proceedings and that in so far as is possible they should be entitled to restorative justice and in any event to fair compensation. Chapter 10 of this document also contains provisions which will assist children who are victims of crimes.

The term "victims of the conflict" is used here, as opposed to just "victims", to highlight that the Bill of Rights needs to make some special provision for those who have suffered most during the years preceding the realisation that a Bill of Rights is a necessary part of the peace process in Northern Ireland. But the Commission would welcome views as to whether the provision should in fact be extended to all victims.

Question 20:

A more precisely defined and detailed formulation of rights is required for future victims. The Criminal Justice Review examined in detail what role victims of serious crime should play in investigation and trial of suspects. Legislation that implements the recommendations of the Review is expected soon. But this does not eliminate the need for the inclusion in a Bill of Rights of a general statement of the basic rights of victims to be provided by legislation.

The UN’s Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted in 1985 sets out the international standards in this respect and provides a useful model both for the definition of victims and for the formulation of their rights.

The definition of victims in the UN’s Declaration is a broad one. It includes the immediate family or dependants of the victim as well as those who have suffered harm in intervening to assist the victim. The Commission’s preferred version of this definition is as follows:

The definition is, however, limited to victims of crimes. The Commission would welcome views on whether other victims should also be allocated rights by the Bill of Rights.

Question 21:

The rights of victims included in the UN’s Declaration range from a right to compassion and respect for their dignity to more detailed provisions in respect of access to the mechanisms of justice, including information on the progress of proceedings and a right to have their concerns taken into account. But the precise mechanisms by which these rights are to be exercised are left to national legislation.

A similar approach seems appropriate for a Northern Ireland Bill of Rights. The following general provisions, based on the UN’s Declaration and in particular on its definition of victims set out above, are therefore suggested:

1. the right of every victim to be treated with compassion and respect for his or her dignity;
2. the right of every victim to obtain redress by way of restitution or compensation through formal or informal procedures that are expeditious, fair, inexpensive and accessible;
3. the right of every victim to have the crime in question investigated thoroughly, promptly and impartially;
4. the right of every victim to be informed of the progress of any relevant investigation and to have his or her concerns taken into account in the conduct of any relevant legal proceedings; and
5. the right of every victim to reasonable assistance during the trial of any person charged in connection with the crime in question.

Women and girls suffer disproportionately from violent assault, especially in the home, and are victims with special needs who deserve special attention. The Commission therefore recommends the following clause, which is further explained in Chapter 5, on the rights of women.

Victims can suffer from discrimination. Chapter 4 of this document suggests a non-discrimination clause 4(4) which would protect victims from such conduct.

7. Rights to family life and private life

The relevant provisions of the European Convention on Human Rights in this context are Articles 8 and 12.

The European Court of Human Rights has interpreted Article 8 in a positive and expansive manner so as to cover a wide range of protections from state interference. For example, the Court required the UK to de-criminalise homosexual activity in Northern Ireland and to introduce nationwide legislation to regulate the tapping of telephones and the activities of the security services.

The main question for the Commission has been whether there are any particular circumstances in Northern Ireland which require further protection which is not already guaranteed under the terms of Article 8. Reference was made in some submissions to the need for greater control on the use of surveillance techniques by members of the security forces and others. Concern was also expressed about the increasing use of electronic databases for the collection and storage of information about individuals.

The Commission has given careful consideration to these issues and to the level of effective regulation already provided by domestic law through, for example, the Data Protection Acts 1984 and 1998. Its preliminary view is that Article 8 of the European Convention, which is now incorporated into Northern Ireland law by virtue of the Human Rights Act 1998, gives good protection on these issues. It recommends, however, that this should be supplemented by including in the Bill of Rights a clause based on Article 8 of the EU’s Charter on Fundamental Rights, reading as follows:

Concern has been expressed that Article 12 does not effectively guarantee the right to have a marriage terminated or the right of same-sex couples and other partnerships to formal recognition of their relationships and to the same rights as married couples. Despite the fact that for some purposes the law recognises "common law" relationships of unmarried couples living together as husband and wife, there are some significant distinctions in their treatment under the law.

The Commission considers that some provision should be made in the Bill of Rights to meet these concerns raised. The Commission therefore proposes that a separate provision should be included in the Bill of Rights requiring the state to grant effective recognition to relationships other than marriage and to guarantee equality of treatment in appropriate areas. However, it has come to the provisional conclusion that this should be done without undermining the special religious and civil status of marriage given the way in which that term is understood by the majority of the population.

For this purpose it has drawn on the terms of Article 5 of Protocol 7 to the European Convention, although this Protocol has not yet been ratified by the UK. Article 5 states that "spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relationships with their children, as to marriage, during marriage and in the event of its dissolution". The following formulation is put forward for comment:

The Commission recognises that this clause would, amongst other things, legitimise partnerships between gay men or between lesbian women. It believes that the formal recognition of rights and responsibilities in such relationships can only be of assistance to the individuals concerned.

As regards termination of marriage, the Commission recommends that the Bill of Rights should include this clause.

In any Bill of Rights there is a choice between relying on rights of general application and including detailed rights for specified groups, such as children, women, persons with a disability and ethnic or linguistic communities. In respect of children there are a number of grounds on which special protections for their rights should be included in the proposed Bill of Rights to reflect the particular circumstances of Northern Ireland:

• the vulnerability of children to abuse and exploitation of all kinds;

• children’s traditional lack of influence on decision-making;

• the fact that children in Northern Ireland have been exposed for most of their lives to conditions of the conflict;

• the growing international recognition of the need to guarantee the rights of all children, as evidenced by the almost universal ratification of the UN’s Convention on the Rights of the Child;

• the fact that the European Convention on Human Rights contains only the minimal express recognition of the special needs of children.

The general concern among political parties and the general public for the better protection of children has also been demonstrated by the widespread support in Northern Ireland for the proposed appointment of a Children’s Commissioner. For the work of any such Commissioner to be fully effective, however, it is essential not only that the rights of children should be clearly expressed but also that they should be directly enforceable.

The Commission has considered three possible approaches to the protection of children’s rights in the proposed Bill of Rights:

1. the direct incorporation of the provisions of the UN’s Convention on the Rights of the Child;
2. the inclusion in the Bill of separately formulated rights reflecting those in the UN’s Convention but providing a higher level of protection on some issues; and
3. a combination of the approaches in (1) and (2).

2. Direct incorporation of the UN’s Convention

The main argument for the direct incorporation of the operative provisions of the UN’s Convention on the Rights of the Child is that this would be the best way of ensuring the effective protection in national law of current international standards to which the UK Government is already committed. The Children (Northern Ireland) Order 1995 already reflects many of the provisions of the UN’s Convention, but there are many Convention rights which are not directly enforceable in Northern Ireland law. There may be objections, however, to the incorporation of the Convention only in respect of Northern Ireland and not the rest of the UK. And there is a further disadvantage in respect of clarity and accessibility, since the Convention contains 37 operative provisions, many of which are formulated in rather general terms and do not confer readily enforceable rights on individuals. The UN’s Convention does not, in any event, represent the highest possible standards which could be achieved in protecting children’s rights.

(2) Separately formulated rights

The main argument for this approach is that it would allow a more direct formulation of the main rights in the UN’s Convention in such a way as to make it easier for individuals to ensure that they are actually delivered. Many of the provisions of the UN’s Convention impose duties on state authorities rather than giving enforceable rights to individual children. The Working Group on Children’s Rights and the majority of submissions dealing with children’s rights therefore recommended to the Commission that the main provisions of the UN’s Convention should be expressed as individual rights and also that in some areas the rights should be enhanced. Others have pointed out, however, that the list of rights recommended by the Working Group omits some of the most significant general principles included in the UN’s Convention and that it may be difficult to justify the inclusion of only a limited number of the Convention’s provisions.

(3) A combined approach

The Commission has therefore considered the possibility of combining the two approaches by including a general provision requiring state authorities in Northern Ireland to comply with the provisions of the UN’s Convention in addition to including a list of more specific rights along the lines of the recommendations of the Working Group. To avoid any possible conflict between a general requirement and the more specific rights it is necessary to ensure that each is given equivalent status. The general requirement might therefore be formulated as in the general provisions set out in a) General provisions, below.

In respect of the more specific rights the Commission has followed the broad policy of the UN’s Convention but has sought to formulate the rights in a more direct manner in order to facilitate their enforcement. The suggested formulations are set out below. The Commission would welcome comments on which of the broad approaches set out above should be adopted and also on the merits of the more specific formulations. Further, the Commission also seeks comments on the format of the chapter. Initially, the Commission had decided to repeat the rights of children where relevant in the other chapters of this Bill. After further consideration, however, the Commission decided to keep the rights of children separate without repeating the provisions, so as not to create the appearance of a hierarchy of rights and to reduce the length of the document.

Question 22:

The Commission is in favour of the following interpretative clauses being included in the section of the Bill of Rights dealing with interpretation (see Chapter 15).

The definition of a child is taken from the UN’s Convention and is in line with the emerging international consensus that 18 years old is the appropriate age for all purposes. The provision that the best interests of the child shall be the paramount consideration, as specified in the UN’s Convention, is formulated as a general principle that is to govern the interpretation of all other rights in this section of the Bill of Rights. The third provision is intended to impose a duty on all public bodies dealing with children both to adhere to the terms of the UN’s Convention and to ensure that children are able to enforce the rights that are formulated in more direct terms than under the Convention.

The first of these clauses reflects the terms of Article 12 of the UN’s Convention and the common law principle that children with the requisite understanding may be entitled to make their own decisions on issues which directly affect them, subject to the overriding "best interests" principle. The second clause is designed to guarantee that the principle in question, which is already accepted in practice under the common law and under most children’s legislation, is adhered to in all formal legal and administrative proceedings.

The third clause is intended to reflect the comments on participation made by the UN’s Committee on the Rights of the Child. This provision will strengthen the current law (in particular section 75 of the Northern Ireland Act 1998) that requires public bodies to consult with children. The Commission has, however, not yet made up its mind on how the provision should be enforced. Should the section 75 model – whereby public bodies have to produce schemes to show how they are consulting with children – be followed or is some other mechanism preferable? The Commission therefore seeks advice as to what wording would be appropriate to provide some means of enforcement.

If so, how should this right be enforceable?

At this point the Commission is proposing a choice between two differently worded clauses:

The first of these clauses was recommended by the Working Group on Children’s Rights as a development of Article 18 of the UN’s Convention, which is focused on the obligation of the state to promote and support parents in the care of their children. During the Commission’s consideration of the issue, the view was expressed that it is unrealistic to propose a right which cannot in practice be ensured for those most in need of it. The Commission therefore seeks comments on whether it is appropriate to formulate this principle as a right for children or, as in the second formulation, as an obligation on state authorities.

Question 26:

The first sentence of this clause is based on Article 20 of the UN’s Convention, with an added reference to the "best interests" principle and a reasonable time limit. The second and third sentences are designed to ensure that protection endures for an appropriate period. The frequent absence of such support is widely regarded as a weakness in the current system.

This clause is based on Article 9(3) of the UN’s Convention. It makes specific reference to direct and/or indirect contact, although this could also be dealt with under the "best interests" proviso.

These clauses are a development of Article 19 of the UN’s Convention, making specific reference to the widespread problem of bullying and to the need for independent monitoring. The basic principle is expressed as a right for every child rather than an obligation on state authorities.

The Commission, like the Working Group which advised it, is concerned about the fact that the age of criminal responsibility in Northern Ireland is as low as 10 years old. It believes that the age limit should be raised but it has differing views as to what the age limit should be. Views are sought on what the age should be and on whether the Bill of Rights should impose an obligation to keep the issue under review in relation to developing international standards. The second sentence of the above clause is based on Article 40(3)(b) of the UN’s Convention and is intended to guarantee that in any alternative measures effectively safeguard the fundamental rights of children in conflict with the law.

1. the right to have criminal charges explained promptly and in appropriate language;
2. the right to have access to appropriate legal and other assistance in the preparation of a defence;
3. the right to have any criminal charge determined without delay by a competent, independent and impartial tribunal in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is contrary to his or her best interests and taking into account his or her age or situation, of his or her parents or legal guardians;
4. the right to have an appropriate adult present to represent the interests of the child even if a solicitor is also present;
5. the right to be tried for a criminal offence in an appropriate setting and manner, having regard to the child’s age, maturity, needs, vulnerability and understanding;
6. the right to have measures taken to ensure his or her participation in and understanding of the criminal proceedings; and
7. the right to have his or her privacy respected before, during and after the proceedings.

These rights are derived from those aspects of Article 40 of the UN’s Convention which are specific to children and are not already covered by the general provisions in respect of fair trial under the European Convention on Human Rights. Account has also been taken of the developing case law under the European Convention, notably the European Court’s decision in the Bulger case (T v UK and V v UK, 2000).

1. the right to be separated from adults in detention and (if not yet found guilty) from children who have already been found guilty;
2. the right to prompt access to appropriate legal and medical assistance and pastoral care;
3. the right to privacy and respect for his or her correspondence;
4. the right to maintain regular and direct contact with parents, siblings or other family members and friends, save in exceptional circumstances;
5. the right to access the Northern Ireland Curriculum and/or educational and vocational training necessary to prepare for his or her re-integration and constructive participation in society following release.

These clauses are based on Article 37 of the UN’s Convention. The most important is the general principle that detention shall be used only as a last resort and after consideration of the alternative measures which the provision requires to be made available. The more specific rights are likewise based on Article 37, supplemented by recent decisions on the interpretation of Article 8 of the European Convention on Human Rights. The final clause reflects the concerns of the Working Group, many submissions and the Commission itself over current problems in the delivery of effective education to children in detention and the need to ensure effective preparation for reintegration into society.

This clause is based on Article 23 of the UN’s Convention, as interpreted by the UN’s Committee on the Rights of the Child in its discussion of the rights of children with disabilities. The objectives of independence and inclusion reflect current best practice in this area.

This clause is based on Article 31 of the UN’s Convention. It is intended to ensure, for example, that in the planning of built-up residential areas space is left for children to play and that in educational programmes there is appropriate opportunity for leisure time activities.

These clauses are based on Articles 24 and 27 of the UN’s Convention.

There is an obvious overlap between the general provisions on education in Protocol 1 of the European Convention on Human Rights and the more detailed provisions applicable to children in Articles 28 and 29 of the UN’s Convention. There is a similar problem in the formulation of education rights in the proposed Northern Ireland Bill of Rights. The proposed clauses are intended to supplement those in the education section (see Chapter 11) by focusing on rights which are of particular importance to children, notably exclusions, protection from bullying and participation. It seems appropriate, however, to repeat the initial guarantee of an effective education, although this does not of course mean that every child will in fact be effectively educated because in many instances this will depend on the child’s individual receptiveness. The second sentence is intended to impose a positive duty on the state to ensure that the education system makes appropriate provision for all children, especially those who are currently disadvantaged, such as Traveller children and those in conflict with the law.

The UN’s Committee on Economic, Social and Cultural Rights has identified Article 10(3) of the Covenant (special measures for children and young persons, including protection from "economic and social exploitation") as being capable of immediate application. The Commission’s proposed non-discrimination clause, 4(4) (see Chapter 4), which outlaws age discrimination, would also cover many of the issues that would arise in an Article 10(3) context.

The Commission strongly believes that positive steps require to be taken to make children more aware of their rights.

12. Education rights

The education system inevitably has a significant influence on the preservation of the identity, language and culture of any distinctive community. Control over the structure and curriculum of schools and universities is consequently a matter of major concern in any communally diverse society. The formulation of entrenched education rights is therefore likely to be one of the most important issues in the proposed Bill of Rights for Northern Ireland.

The main issues of particular concern in Northern Ireland in this respect have long been:

1. whether parents and their children should have a guaranteed right to choose between the main sectors (state controlled schools (including special schools), Catholic maintained, integrated, Irish language and independent schools);
2. whether there is effective parity of provision, funding and support for children in all sectors; and
3. whether the current "11-plus" selection system and the strict separation of grammar and secondary schools is intrinsically unfair.

There is little doubt that some additional provisions to those in the European Convention on Human Rights will be required to deal with these concerns.

The practical application of these provisions, however, has generally been regarded as weak and unsatisfactory. For example, in the Belgian Linguistic case (1968), the European Court of Human Rights granted a very wide discretion to the Belgian Government to regulate its education systems in accordance with its policy of communal separation. Respect for parental rights in respect of religious or philosophical convictions has also been narrowly interpreted and would probably not extend to a right to choose integrated or Irish language education in Northern Ireland.

Protection for fair treatment of the distinctive educational sectors under the anti-discrimination provisions of the Northern Ireland Act 1998 is equally weak. In a judicial review application brought by the Catholic Bishops in the early 1990s in respect of differential funding for Catholic and integrated schools, it was held that the education law did not discriminate directly against the Catholic sector since the criteria for funding were not based on religion. The impact of these provisions in respect of the possible discriminatory impact of the "11-plus" and the admissions and exclusion criteria operated by some schools is also uncertain.

These particular concerns must be set in the context of more general international standards in respect of education which are also of particular relevance in Northern Ireland, notably the relevant provisions of the Universal Declaration of Human Rights, the UN’s International Covenant on Economic, Social and Cultural Rights, the UN’s Convention on Discrimination in Education and the UN’s Convention on the Rights of the Child. There are also significant provisions on education rights in the Framework Convention on the Protection of National Minorities and in the European Charter on Regional or Minority Languages. These international conventions focus on the need for education to be directed towards the promotion of mutual tolerance and respect and the principles of human rights, the objective of providing appropriate and inclusive education at all levels and for all sections of the community. Objectives of this kind were explicitly referred to in the Belfast (Good Friday) Agreement 1998 and form the basis of many of the recommendations made to the Commission by the Working Group on Education rights.

The formulation of education rights must also be set in the context of current policy debates and initiatives. The review of the "11-plus" selection system, for example, will clearly have implications for the structures of secondary education and therefore provides an opportunity for the reform or restructuring of the system to meet human rights standards.

In this initial consultation document the Commission has sought to combine these particular and general objectives. This necessarily involves a careful balancing of the rights of parents and their children and the obligation on the state authorities to make appropriate provision not only to ensure effective education for all but also to meet the wishes of parents and their children for different types of school.

In the Commission’s view the most important of the relevant rights and obligations in this context are:

• the provision of effective and appropriate education for all at all levels and all ages;

• the provision of effective choice for parents and their children between the main school sectors: state controlled schools (including special schools), Catholic maintained, integrated, Irish language medium and special schools;

• the recognition that children’s own voices have a right to be heard in this context;

• a guarantee of effective parity/equality of provision, funding and support for children in all sectors, without prejudice to programmes necessary to correct past inequalities;

• the elimination of any form of direct or indirect discrimination in the selection of children for different forms of education; and

• a guarantee that the education system will be directed towards the promotion of the principle of human rights and of mutual respect for all sections of the community.

A number of related issues in respect of the rights of individual children in the school system, such as protection from bullying and participation in school governance, are discussed in Chapter 10 on the rights of children.

The Commission would welcome comments both on the issue of whether these or other rights in respect of education should be included in the Bill of Rights and on the particular clauses which follow.

This clause reflects the initial sentence of Article 2 of Protocol 1 to the European Convention, with the qualification of an "effective" education. Creating a duty on the state to guarantee an effective education is consistent with the interpretation placed by the European Court on Article 2. "Effective" should be interpreted in accordance with the best interests principle as described in Chapter 10 on the rights of children. The second sentence is based on Article 13 of the UN’s Covenant on Economic, Social and Cultural Rights. "Development of the person" is intended to cover the many aspects important to human growth, such as intellectual, spiritual, physical, emotional, moral, creative and aesthetic development. Using a broader term lends the clause flexibility as to how development is to be defined for each individual. The clause is also intended to benefit those seeking adult education and lifelong learning as well as those who require instruction in sign language.

The first sentence of this clause is an extension of the wording of the European Convention to include the "pedagogical convictions" as provided in Article 14 of the EU Charter of Fundamental Rights. This is intended to fill the gap created by the narrow interpretation of "religious and philosophical convictions" in the European Convention and thus provide a right to integrated education. The second sentence makes it clear that the right of choice shall extend to integrated and Irish-medium schools.

The clause is intended to provide a guarantee to both main communities and those who favour integration of continuing state funding on an equitable basis for state controlled schools (including special schools), state or Catholic maintained schools, integrated schools and Irish-medium schools. No such obligation is imposed under the European Convention on Human Rights or the Framework Convention on the Protection of National Minorities. The clause will allow special attention to be given (through, for example, New Targeting Social Need programmes) to addressing former inequalities regarding provisions for schools, including discrepancies relating to funding and treatment that might impair a person’s right to education. The "subject to reasonable requirements" limitation reflects the reservation currently lodged by the UK in relation to Article 2 of Protocol 1. The term "any area" is flexible enough to include any particular neighbourhood or the whole of Northern Ireland.

The Commission favours inclusion of this clause in the Bill of Rights, even though there is also a general provision against discrimination in respect of access to all state-funded educational establishments. It does not exclude single sex or religious schools from using criteria for admission within the mission of the school. These characteristics would be considered genuine and determining requirements as formulated under the exceptions clause for discrimination. The Commission, though, seeks to protect students from being denied admission on the grounds of, for example, religious belief or family status. The issue of exclusion is dealt with by a subsequent clause that guards against unfair expulsion and exclusion.

The Commission also seeks comments on whether a clause should be included along the lines of this second provision which is intended to ensure that any selection criteria, whether on a general basis as for the "11-plus" or applied by an individual school, should be subjected to external review on the grounds of their impact on the delivery of effective education for all.

This suggested clause is based on the general provisions on the purpose of education in the Universal Declaration on Human Rights and the UN’s Covenant on Economic, Social and Cultural Rights. The Commission also believes that the Northern Ireland Curriculum should include specific provisions regarding education about national and international human rights standards.

The Commission has considered the current exclusion of teachers from the fair employment legislation and the specific exemption for teachers from the recent EU Directive on employment equality. We are aware that this issue is also being looked at in the context of the discussions on a Single Equality Act to be passed by the Northern Ireland Assembly. Having considered the matter carefully the Commission has reached the provisional conclusion that no particular exemption for teachers should be retained and that instead the general exemption allowing discrimination if there is a genuine occupational requirement for the job in question should apply as it does in all other employment fields. But the Commission would welcome comments on such a proposal.

12. Rights to freedom of thought, expression, information and association

Freedom of thought, conscience and religion is extensively protected by Article 9 of the European Convention on Human Rights.

1. Article 9 of the European Convention – Freedom of thought, conscience and religion

[1] Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his or her religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his or her religion or belief, in worship, teaching, practice and observance.

[2] Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

The Commission considers that attacks on places of worship in Northern Ireland constitute a breach of Article 9. It does not consider that the Article requires to be supplemented in the Bill of Rights for Northern Ireland.

Freedoms of expression and information are also quite extensively protected by Article 10 of the Convention. The Commission considered whether to add supplementary rights concerning the position of journalists and the protection of one’s reputation, but has provisionally concluded that it is not necessary to do so.

2. Article 10 of the European Convention – Freedom of expression

The Commission would welcome views as to whether Article 10 requires to be supplemented by any additional provisions in the Northern Ireland Bill of Rights. At present it believes that it does not. It believes that the phenomenon of "hate speech", for example, can be dealt with by specific legislation without breaching Article 10(2).

The rights to freedom of assembly and association are already well protected by Article 11 of the Convention as interpreted by the European Court of Human Rights. The Commission has published a report on Parades, Protests and Policing (May 2001) which illustrates the way in which Article 11 has been applied by the European Court. The Commission received very few submissions relating to this area and again has provisionally decided that it is not necessary to supplement the Convention Article with any other provisions reflecting the particular circumstances of Northern Ireland.

Language is a key element of personal and community identity, and Northern Ireland has a wide variety of linguistic traditions. All of the languages and dialects used here contribute to the cultural richness of the whole community and they enable individuals to express their needs and identity through everyday speech and writing and to participate in cultural life through literary and artistic expression.

Most people in Northern Ireland understand and speak English as their first or only language. It has been in use here for many centuries and so is recognised as an indigenous language. It has made a large contribution to the literary and cultural life of our community and is the main language of everyday use, in administration, commerce, trade, political discourse, inter-cultural communication, education and the media. It is one of the main international languages and is defined as an official language in the Constitution of the Republic of Ireland.

A substantial minority understands and speaks the Irish language. It is also an indigenous language, with a rich literary tradition. It is an official language in the Irish Republic and has links to other Celtic languages. While Irish has suffered the effects of domination and suppression in past centuries, it is now enjoying a revival. The language is very important to the cultural identity of a substantial section of the population, being the principal minority language in Northern Ireland in terms of numbers of users.

Ulster-Scots is also indigenous to Northern Ireland, with links to parts of Scotland and the Irish Republic. In the past it too has been poorly appreciated, but there is now a new understanding of its cultural value. It has recently been asserted and recognised as an important component of the Ulster-Scots identity.

The other linguistic forms recognised as indigenous to Northern Ireland are Cant and Gammon, spoken among the Traveller community. Many ethnic minority languages and dialects are also in use in Northern Ireland by migrants and their descendants. British Sign Language and Irish Sign Language are used too, as is the Braille script, and people with aphasia or other conditions, as well as people who cannot read or write, also have special communication needs.

The importance of respect, understanding and tolerance in relation to linguistic diversity, including the treatment of the Irish language, Ulster-Scots and the languages of minority ethnic communities in Northern Ireland, was expressly recognised by all the participants in the Belfast (Good Friday) Agreement as a matter of cultural wealth. In relation to Irish, the British Government made a series of specific commitments (see para 4 of the section on economic, social and cultural issues in the part of the Agreement dealing with "Rights, Safeguards and Equality of Opportunity". An Implementation Body in respect of the Irish language and Ulster-Scots has been established under the auspices of the Agreement and the UK Government has honoured its commitment to ratify the European Charter for Regional or Minority Languages. Ulster-Scots has been formally recognised for the purposes of Part II of that Charter and the required list of items for recognition and support for the Irish language for the purposes of Part III has been specified. There is no provision under the Charter, however, for recognition and support of the languages of immigrant communities, such as Chinese and Urdu, and no formal provision has been made in respect of other languages in regular use in Northern Ireland, such as sign languages and the languages of Travellers.

The Working Group on Language Rights and other contributors to the Commission's consultation process called for the recognition of a wide range of individual and communal rights in respect of all these languages. Many drew on the provisions of the Framework Convention for the Protection of National Minorities and on the European Charter for Regional or Minority Languages. But there was less general consensus on whether particular status should be granted to the Irish language and Ulster-Scots or whether all minority languages should be granted equal status. And there was relatively little emphasis on recognition of the status of the English language.

The Commission's general objective in this section of the proposed Bill of Rights is to combine the principle of respect for linguistic diversity, as set out in the Belfast (Good Friday) Agreement 1998, with that of special recognition for the Irish language and Ulster-Scots, as is also provided for in the Agreement. It has also sought to incorporate the international standards set out in European Charter for Regional or Minority Languages and the Framework Convention for the Protection of National Minorities. These international documents provide that some preference can be granted to national and indigenous languages and that recognition and facilities for all those using minority languages should be proportionate to the numbers involved in any given area. The Framework Convention provides in particular that members of "national minorities", a term which is not defined, shall be entitled to a range of specific rights in respect of their language.

The Commission considers that these rights should be the basis of any provision in a Northern Ireland Bill of Rights. But it has to be admitted that existing international human rights law and standards do not provide extensive protection for language rights. The Commission wishes to go beyond what is currently provided in the existing international Charters and Conventions, where language rights are discussed only in relation to people who are nationals of the state but who belong to particular minorities. The international documents do not talk about the language rights of members of the majority communities, nor do they address the language rights of migrant communities.

The Commission’s proposed text guarantees respect, understanding and tolerance for all the different linguistic groups in Northern Ireland, and, given the particular circumstances of Northern Ireland, acknowledges the historic disadvantage and special needs of linguistic minorities. The Commission believes that all languages, dialects and other forms of communication are entitled to respect because they all contribute to the cultural wealth of the community. The Government’s commitments under the Agreement and Language Charter are expressly built into the Bill of Rights, thereby granting an additional measure of protection for Irish and Ulster-Scots.

The Commission also believes that good relations between users of different languages can be promoted if public policy is directed towards fostering knowledge and appreciation of different languages, dialects and forms of communication, increasing the opportunities for them to be learned, taught, and used in speech and writing in as many contexts as possible, including dealings with public bodies, and ensuring that no person is disadvantaged in the exercise of his or her fundamental rights or in access to essential services by an inability to communicate in English. The Commission expects appropriate measures to be taken to promote, through education, training and the media, the social inclusion of and mutual understanding between all linguistic groups, and in particular respect, understanding and tolerance in relation to minority languages, dialects and forms of communication. Public bodies should make reasonable efforts to provide basic information, and an increasing range of other services, in minority languages and in formats accessible to people with visual impairments or reading problems. There may already be a duty under the Race Relations (NI) Order 1997 not to discriminate between users of different languages; this Bill is not intended to diminish in any way the rights flowing from that duty. Indeed, some of the clauses build upon the notion of non-discrimination against those who cannot speak English.

Many national constitutions make specific provision for the designation of official languages in which the business of the state is to be carried out. The Irish Constitution, for example, gives formal recognition to the Irish language as the primary official language of the state, on the basis that it is the national language, and provides that English shall also be an official language. It would be possible in a Northern Ireland Bill of Rights to include a formal recognition of one or more languages as the primary official language(s) of the state, with a status superior to other languages. The Commission has come to the provisional view, however, that rather than make provision for "official" or "national" languages and "second" or "other" languages, it is better to guarantee rights for all language users and to make the extent of those rights dependent on the extent to which each language is used and understood in the community.

In relation to other matters, the Commission wishes not only to follow but to go beyond the provisions of the Belfast (Good Friday) Agreement and the European Charter and Framework Convention. These documents give special rights, subject to the numbers involved and the extent of the demand, to the users of minority languages. But the Commission wishes to guarantee a measure of recognition and respect to the users of all languages, dialects and other forms of communication because they all contribute to the cultural wealth of the community.

It should be added that nothing in the Commission’s proposals is intended to detract from the existing prohibition – under the Race Relations (Northern Ireland) Order 1997 – of discrimination between members of racial groups in respect of their use of language or from the proposed general prohibition of discrimination in this Bill of Rights, unless the difference in treatment could be objectively justified.

1. Everyone has the right to use his or her own language for private purposes and all languages, dialects and other forms of communication are entitled to respect.

The first clause reflects the fact that the right of everyone in Northern Ireland to use the language of his or her choice is already to some extent guaranteed implicitly under Articles 8 and 10 of the European Convention on Human Rights and explicitly (for members of minorities) under the Framework Convention on the Protection of National Minorities and the UN’s International Covenant on Civil and Political Rights, to both of which the British and Irish Governments are committed.

2. Everyone has the right to communicate with any public body through an interpreter, translator or facilitator when this is necessary for the purposes of accessing, in a language that he or she understands, information or services essential to his or her life, health, security or enjoyment of other essential services.

The second clause does not provide a universal right to interpretation, but a right in respect of information that is necessary to secure access to essential services. Whether the wording would oblige a public authority to bear the cost of translation or not would depend on the type of service and on the impact of not providing translation on those accessing the service. It could mean, for example, that a Chinese woman seeking information about maternity services would be able to obtain that information in Cantonese or Mandarin, directly or indirectly, from the relevant public body. It should be noted that the clause extends the right to interpretation services for persons charged with or tried for a criminal offence (see Chapter 7) to all dealings with courts.

3. The State shall make suitable provision for assisting communication between members of different linguistic communities.

The third clause is intended to ensure, amongst other things, that persons unable to communicate in English are provided with appropriate assistance. This may include the provision of translation, interpretation or educational services. In some contexts the duty may be fulfilled through the requirement for the teaching of English in the Northern Ireland Curriculum, but the clause would also require educational provision outside the formal school system. It should be noted, however, that Article 14(3) of the Framework Convention provides that education in minority languages is to be without prejudice to the learning or teaching of the main language of the state.

This clause is designed to ensure that the commitments made under the Agreement and the European Charter are enforceable in the courts and that the legislation which is required meets the basic standards set out in the European Convention for the Protection of National Minorities. The Commission believes it is better to leave detailed implementation of these standards to ordinary legislation, as occurs for example in Wales under the Welsh Language Acts.

1. the promotion of conditions necessary to maintain and develop it;
2. the right to use it in dealings with public bodies;
3. the right to use one’s name in it and to be officially recognised under it;
4. the right to display signs and other information in it;
5. the right to display local street and other place names in it;
6. the right to learn it and to be educated in and through it.

This clause is designed to extend some of the rights listed in the Framework Convention to all linguistic minorities, such as those using sign language, the language of Travellers, Chinese and Urdu, subject to limitations in respect of demand. "Sufficiency of demand" will be a relative matter depending on a range of factors including available public expenditure. In relation to the Irish language criteria concerning sufficiency of demand already exist. For other languages, such as those of migrant communities, it may over time be necessary to develop appropriate criteria also. The right to be educated through the language is particularly sensitive to a "sufficiency of demand" criterion. The detailed implementation of the rights should, in the Commission’s view, be covered by ordinary legislation.

The Commission’s initial opinion survey (RES, NI Social Omnibus Survey, July 1999) indicated that there was a very high level of support for the inclusion of socio-economic rights in a Northern Ireland Bill of Rights. Well over 80% of respondents in both main communities supported the inclusion of rights in respect of health, housing and employment.

There is also evidence, as indicated in the report of the Working Group on Social and Economic Rights, that on many, although not all, socio-economic indicators, people in Northern Ireland are more deprived than people in the rest of the UK. Many would argue that much of this deprivation is a result of the unique social, economic and historical circumstances of Northern Ireland. Overall health standards in Northern Ireland are low according to generally accepted health indicators, such as life expectancy rates, death rates from coronary heart disease and cancer, the percentage of the population suffering from long-term illness and disability and rates of teenage pregnancy. There are continuing high levels of homelessness and housing need: in March 2000 over 23,000 households were registered as waiting for social rented housing and half of these were in urgent housing need. A comparatively high proportion of houses are classified as unfit – over 7% according to the most recent Northern Ireland House Condition Survey (1996). The latest figures on unemployment, as noted in the Labour Force Survey (1999), indicate that male Catholics (10.4%) are still almost twice as likely as male Protestants (5.6%) to be unemployed in Northern Ireland.

The need to deal with these forms of economic and social disadvantage was clearly acknowledged in the Belfast (Good Friday) Agreement 1998, which called for "a new and more focused Targeting Social Need initiative and a range of measures aimed at combating unemployment and progressively eliminating the differential in unemployment rates between the two communities by targeting objective need". The Agreement certainly acknowledges the relevance of social and economic conditions to conflict resolution in Northern Ireland. These objectives have also been accepted in the Northern Ireland Executive’s Programme for Government 2001-2004:

At an international level social and economic rights have long been provided for. Moreover, there is now a consensus that the protection of social, economic, civil and political rights must be regarded as interdependent. This is reflected not only in the Universal Declaration of Human Rights of 1948, which covers the full range of rights, but also in the Vienna Declaration and Programme of Action of 1993 and in the EU’s Charter of Fundamental Rights of 2000, which includes provisions on social security and social assistance, health care, fair and just working conditions and environmental protection.

However current international standards also make it clear that sometimes there is a significant difference in the protection and enforcement of social and economic rights as opposed to civil and political rights. Most civil and political rights are expressed as rights for individuals which their governments must respect subject to a series of limitations, such as national security, public order and the rights of others. In most cases this means that claims for particular rights must be balanced against competing rights of the state and other individuals. Most social and economic rights also have limits but are expressed as objectives to be realised progressively within the resources available to the government. For example, the UN’s Covenant on Economic, Social and Cultural Rights imposes an obligation on states to take steps "to the maximum of [their] available resources with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."

The distinction between civil and political rights on the one hand and social and economic rights on the other is not just about the expenditure of resources. The delivery of most human rights costs money, for example in the provision of fair trial systems or the protection of freedom of assembly. It is also about the difficulty in establishing an agreed common standard, for example in respect of health or education or housing, and about attempting to ensure a balance between the judicial protection of a minimum standard with regard to social and economic rights while leaving the detail of its fulfillment to the political arena and political debate and decision-making. All governments must make difficult decisions about the expenditure of available resources in raising standards in this area. These are viewed by some as essentially political decisions about priorities and ones which cannot therefore be left to judges alone to decide in court proceedings. Others point to the fact that there are already international standards in existence (eg the Maastricht Guidelines and the Limburg Principles) which indicate how minimal thresholds for social and economic rights can be agreed and monitored.

In any event, some social and economic rights are currently protected in the same way as civil and political rights – an example is found in Protocol 1 to the European Convention, which provides for the right to education. There is also an ever-expanding body of work by the UN’s Economic, Social and Cultural Rights Committee which sets neutral, fixed and ascertainable standards by which to measure state action and progress in the area of economic, social and cultural rights. The UN’s Human Rights Committee, in addition, accepts that due process protections are an integral part of the enforcement system for social and economic rights.

The enforcement as well as the formulation of social and economic rights has therefore usually been dealt with in a different way from the enforcement of civil and political rights in both international and national Bills of Rights. At an international level progress in the achievement of these rights is typically assessed by a committee of experts which receives and comments on reports by governments. At a national level the role of courts in enforcing rights of this kind has also been developed in a distinctive manner. For example, the Irish and Indian Constitutions express rights of this kind as "directive principles" of state or social policy. In recent cases in India the Supreme Court has interpreted this formulation in a positive way and has issued directions to the government and public authorities, even though sometimes these bodies have patently failed to take any effective action to give effect to the relevant rights. The new South African Constitution expresses social and economic rights in a similar way, by imposing a duty on the state to "take reasonable legislative and other measures within its available resources to achieve the progressive realisation" of rights. In a recent case on housing rights the South African Constitutional Court relied on this wording to order a regional government to take effective action to provide adequate housing for a group of squatters within two years. The role of judges in cases of this kind is to ensure that the government approaches these decisions in a proper manner within the terms of the relevant provisions in the Bill of Rights rather than to make the decisions themselves. It must not be forgotten that the EU’s Court of Justice in Luxembourg deals with social and economic rights on an almost daily basis and its judgments are binding on the EU states concerned.

The Working Groups on Social and Economic Rights and on Implementation, and a number of submissions, drew the Commission’s attention to the need to develop innovative approaches to the delivery of social and economic rights in addition to enforcement by judicial decisions. These would treat different types of rights differently, some being justiciable and directly enforceable by judges and some being enforceable in a programmatic way according to prescribed processes. The Working Group on Social and Economic Rights was unanimous in its conclusions regarding the inclusion and implementation of social and economic rights in the Bill of Rights. As regards enforcement, the Group said:

Reference was made in this context to the way in which statutory equality duties, including a duty to produce and monitor formal equality schemes under section 75 of the Northern Ireland Act 1998, have already been imposed on most public bodies in Northern Ireland. An approach of this kind would be particularly appropriate in the light of the programmatic nature of some of the rights.

The Commission’s primary concern in this area is the protection of the most vulnerable and disadvantaged members of the community in Northern Ireland in accordance with best current international standards. Almost all the submissions received by the Commission endorsed the inclusion of social and economic rights in a Northern Ireland Bill of Rights. A significant number of those submissions explicitly endorsed the approach of the Working Group, which as mentioned, was able to reach consensus as to the role and importance of socio-economic rights in a Bill of Rights. Most submissions also agreed on the core rights to be included in a Bill of Rights in this context, namely, rights to health care, an adequate standard of living, housing, access to work and a healthy and sustainable environment.

The Commission accepts that the distinctive nature of most social and economic rights, in terms of their formulation and enforcement, must be taken into account, as was recognised by the Working Group. The Commission must also take account of the particular circumstances of Northern Ireland, with its high levels of deprivation, its legacy of conflict and its devolved Assembly and Executive funded by an allocation of tax revenue from central government. Some would say that it is difficult to justify a Bill of Rights guaranteeing a higher standard in health care, education or social security in Northern Ireland than in the rest of the UK. But there is nothing to prevent a Bill of Rights for Northern Ireland from imposing duties in respect of social and economic rights on the Northern Ireland Assembly and Executive within the resources available to them. The implementation mechanism modeled on the current Human Rights Act 1998, which we suggest in Chapter 19, on entrenchment and amendment, would mean that directly justiciable social and economic rights, like other rights provisions, would be given effect as a matter of interpretation. Devolved legislation could be struck down where appropriate and statements of incompatibility could be issued in respect of primary legislation. Social and economic rights framed in process terms could be used to challenge all legislation, as regards whether reasonable steps to comply with the Bill had been taken in a non-discriminatory way, using processes of consultation and review.

The proposed clause in respect of social and economic rights is therefore designed to ensure that the Assembly, the Executive and all public bodies in Northern Ireland can be held to account if they fail to achieve the standards set out in this section of the proposed Bill. The Commission, moreover, believes that all public bodies – including enforcement bodies such as courts – should adhere to the following principles of interpretation when seeking to ensure those standards:

With these interpretative principles in mind, the Commission recommends the following general clause to govern social and economic rights:

This clause is pivotal to the implementation of social and economic rights. It would mean that, while individuals would be entitled to some level of provision, they would not be entitled to specified standards of health care, particular forms of housing or a particular form of work-related training. But individuals and representative bodies could challenge those responsible for such public services in court if it could be established that they had clearly failed to take reasonable steps to comply with the duties set out in the Bill (or had done so in a discriminatory way).

The clause would be a positive development of the general equality duty imposed under section 75 and Schedule 9 of the Northern Ireland Act, which puts an obligation on government departments and public bodies to produce equality schemes. Those schemes are ultimately enforceable only by direction of the Secretary of State. This clause of the proposed Bill would permit individuals and groups to take court action to challenge any failure by a government department or public body to take reasonable or proportionate steps to deliver the social and economic rights. The courts would not be able to take direct decisions on how to allocate resources (beyond perhaps specifying certain minimum standards which must always be met) but would be able to supervise the proper implementation of the rights in question by applying concepts such as proportionality, reasonableness, equality and human dignity.

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The Commission is making no proposals to supplement the right to peaceful enjoyment of possessions as currently found in the European Convention.

These proposed clauses draw upon formulations in Article 12 of the UN’s Covenant on Economic Social and Cultural Rights, Article 35 of the EU’s Charter of Fundamental Rights and section 27 of the South African Constitution. The term "health" is intended to be used in the sense preferred by the World Health Organisation, namely "a state of complete physical, mental and social well being that does not consist solely of absence of disease or infirmity". The approach to reproductive health is discussed in detail in Chapter 5, on the rights of women.

Health is a fundamental aspect of human dignity and effective health care requires meaningful consultation with the public, facilitated and encouraged by government. The clauses are not intended to create binding legal obligations in their own right, but to prescribe the manner in which health care rights are interpreted and enforced. It is clearly understood that every person cannot be guaranteed the same experience of health and healthiness. However, what can be protected are the kinds of services, facilities and programmes which the state puts in place to facilitate and optimise health.

These clauses are based on Article 25 of the Universal Declaration of Human Rights, Article 9 of the UN’s Covenant on Economic, Social and Cultural Rights and Article 12 of the European Social Charter. In accordance with the advice of the Working Group, however, the Commission has not listed specific aspects of an adequate standard of living in order to avoid any potential limitation of the scope of the right. The reference to social care is intended to emphasise that financial assistance alone may not be sufficient and that the state has a responsibility to maintain structures of support and assistance which will enable everyone to live a life of dignity. The additional concept of civic care is derived from those aspects of the Agreement which focus on the role of civil society in providing for the most vulnerable and disadvantaged members of the community. The final clauses are intended to ensure that those who need care and assistance are treated with dignity and that they have an effective remedy to ensure that they receive their legal entitlements.

These clauses are based on Article 11 of the UN’s Covenant on Economic, Social and Cultural Rights and a similar provision is to be found in section 26 of the South African Constitution. As interpreted by the UN’s Committee on Economic, Social and Cultural Rights, Article 11 does not refer merely to a right to shelter but also to a right to be secure in the continuing occupation of one’s home. The home must also be affordable, accessible and habitable. The phrase "secure establishment" is a new one adopted by the Commission in place of the older phrase "security of tenure". Over the years the latter phrase has acquired a technical meaning which would be inappropriate in this context.

The Commission believes that the inclusion of such rights in the Bill of Rights would be fully consistent with the Northern Ireland Executive’s current commitments as expressed in the Programme for Government 2001-2004:

These clauses are based on Articles 6 and 7 of the UN’s Covenant on Economic, Social and Cultural Rights and they are also mirrored to some extent in the European Social Charter and in the recently agreed EU Charter on Fundamental Rights. The main right is formulated in general terms as a right to contribute to the economic and social life of the community, which may include voluntary as well as paid employment. The use of the phrase "access to work" and the reference to training are intended to emphasise the obligation on government in co-operation with the private sector to create the social and economic conditions in which all those who wish to and are able to engage in work can do so. As with other rights in this section, the clauses are subject to the general interpretative principles, which make it clear that the rights are to be implemented in a programmatic manner by appropriate legislative and administrative measures.

These clauses reflect the increasing concern over environmental protection throughout the world. Recent examples of provisions of this kind may be found in Article 37 of the EU’s Charter of Fundamental Rights and in section 24 of the South African Constitution. Reference may also be made to the section of the Agreement which requires a regional development strategy for Northern Ireland to be drawn up with particular reference to "protecting and enhancing the environment". The Commission shares the view of the Working Group which emphasised that a sustainable environment constitutes an integral part of the communal heritage of all persons and that both government and the community at large have duties of stewardship and care for the natural environment.

The Commission’s reasons for recommending the inclusion of environmental protection in the Bill of Rights include: (1) the adverse effects of the conflict on the environment, (2) the consistent under-funding of environmental planning and consultation as a result of direct rule and diffused systems of environmental control, and (3) the lack regulation in Northern Ireland for environmental protection in comparison with England, Scotland and Wales.

History has shown that even the best legal documents can fail to fulfil their purpose if they are not interpreted in the way intended by those who drafted the documents. Moreover the need for Bills of Rights to be fairly short and readable means that they cannot always incorporate the same detail and specificity as ordinary legislation.

It is therefore sensible to include guidance within the Bill of Rights itself to those who are charged with interpreting the document. In this way the spirit and not just the letter of the document can be maintained.

The Human Rights Commission wishes the Bill of Rights to be interpreted in the light of the Belfast (Good Friday) Agreement 1998 and of the Preamble to the Bill itself (see Chapter 4). Commissioners were very impressed during the initial consultation period at the experience of South Africa in the last few years. The President of the Constitutional Court of South Africa, Judge Arthur Chaskalson, visited the Commission in December 2000 to explain exactly how the Bill of Rights in his country has been interpreted in such a way as to unite the people and to underpin the 1994 settlement arrived at there.

This interpretation clause is based largely on section 39 of the Constitution of South Africa 1996.

"International law" in clause 1 is intended to refer to the international human rights treaties drawn up by inter-governmental bodies such as the United Nations and the Council of Europe. "International practice" is intended to refer to those other documents issued by such bodies (in the form of "Basic Principles", "Codes of Conduct" and "Declarations", etc) which give guidance as to what international best practice is on certain matters.

Clause 3 is comparable to such clauses in many other Bills of Rights in the world. It ensures that existing rights are not affected by the enactment of the Bill, provided they are not inconsistent with the Bill.

Reference should also be made to the interpretative principles in Chapter 14, concerning the proposed general provision on social and economic rights. The rights of children in relation to interpretation of the Bill of Rights can be found in Chapter 10.

Every Bill of Rights in the world is subject to express or implied limitations. This is because there are very few "absolute" human rights – the right not to be tortured and the right to think whatever one likes are perhaps the only two. Most human rights have to be limited in certain situations, most frequently because there is a "higher" public good involved, such as the protection of public health or public safety.

Some Bills of Rights contain one general clause setting out how the other rights in the Bill can legitimately be limited. This is the approach in Canada and in South Africa. Other Bills of Rights prefer to insert limits at the point when a particular right is being conferred. This is the approach in some of the provisions in the European Convention on Human Rights (Articles 8 to 11).

The Northern Ireland Human Rights Commission is at present in favour of the European Convention on Human Rights model - inserting specific limitations for particular types of rights. We think that these should all be worded in a similar, but not identical, way, specifying the particular grounds on which the right in question can be limited. For the purposes of this consultation document the Commission has not drafted specific limitations for each clause, but the European Convention model would suggest something like what is currently contained in Article 10(2) of that Convention, which limits the rights to freedom of expression and to freedom of information:

But the Commission also sees value in the alternative approach – that of the general limitation clause – and is keen to receive views as to whether this is a preferred option. Such a general clause might be worded as follows:

The formulation suggested here is based on section 36 of the Constitution of South Africa 1996. It is important to note that, even if it were adopted for the Bill of Rights, this general limitations clause would not further limit the rights which are currently protected by the European Convention. These cannot be limited any more than is at present permitted by the Convention itself. It is intended to ensure that limitations to rights are few and far between and that when they do exist they can be reasonably justified in the ways indicated.

Whichever approach is ultimately adopted will supplement Articles 17 and 18 which read as follows:

Special laws to deal with serious threats to public safety have been in place in Northern Ireland since the partition of Ireland in 1921. Shortly after the outbreak of the most recent period of conflict two particular laws were passed in this regard – the Northern Ireland (Emergency Provisions) Act 1973 and the Prevention of Terrorism (Temporary Provisions) Act 1974. In the subsequent decades these two Acts were repeatedly renewed and amended. They were eventually replaced by the Terrorism Act 2000, which has been in force throughout the UK from 19 February 2001. Part VII of that Act re-enacts most of the provisions of the previous Northern Ireland (Emergency Provisions) Acts.

It was only during some parts of the conflict that the UK Government felt it necessary to derogate from the European Convention in the way allowed by Article 15 below. When the validity of such derogation was challenged, the European Court of Human Rights upheld it (Brannigan and McBride v UK, 1993). As a result of changes to the law introduced by the Terrorism Act 2000 the Government has been able to withdraw its derogation.

There are still some active paramilitary groupings in Northern Ireland which are not on cease-fire and there is always the prospect that paramilitary violence will break out again on a larger scale. To protect the security of people within Northern Ireland a future Government may well wish to put in place measures which require a further derogation from the European Convention or indeed from the Bill of Rights for Northern Ireland. The Commission feels, however, that any such derogation should be possible only in very particular situations. It has been impressed by the provision in South Africa’s Constitution dealing with states of emergency (section 37) and therefore bases the following clause to some extent on that provision.

Article 15 of the European Convention on Human Rights already allows states to exempt themselves from complying with some of their obligations to protect rights, but only in limited circumstances:

The Commission proposes to supplement Article 15 with the following clauses:

According to the Northern Ireland Act 1998, emergency powers are a reserved matter, capable of devolution but not yet devolved. The Commission’s use of the term "relevant legislative body" is intended to refer to whatever power structures happen to apply at the time for Northern Ireland. If an Assembly is functioning in Northern Ireland and if the relevant power has been devolved to it, the Commission’s wishes that Assembly to apply cross-community support for derogating legislation just as we propose the need for cross-community support if the Bill of Rights itself is to be amended (see Chapter 19). If there is no Assembly functioning in Northern Ireland, or the relevant power has not been devolved to it, the responsibility for declaring a state of emergency would reside at Westminster.

Clause (5) is meant to refer to all courts within the jurisdiction of Northern Ireland.

Under the Human Rights Act 1998 all courts are required to make their decisions in accordance with the provisions of the European Convention on Human Rights and the usual procedures apply for appeals to the Court of Appeal and the House of Lords and ultimately to the European Court of Human Rights in Strasbourg. Courts have to interpret legislation in a way which makes it compatible with the European Convention, "so far as it is possible to do so" and they can invalidate secondary legislation if it is not compatible with the Convention. But courts within the UK are not entitled to invalidate any provision in an Act of the Westminster Parliament. If a provision of a Westminster Act is found to be contrary to the European Convention, all that can presently be done is that the High Court can issue a "declaration of incompatibility", leaving it to Parliament to decide what, if anything, to do next.

The position in Northern Ireland, Scotland and Wales is further complicated by the fact that issues concerning the powers of devolved governments and their alleged contravention of the European Convention are dealt with by the Judicial Committee of the Privy Council, which is a court similar but not identical to the House of Lords.

The Commission is of the view that the enforcement mechanisms used by the Human Rights Act 1998 are also appropriate for the Bill of Rights. In other words, we believe that all other legislation should be interpreted by judges, "so far as it is possible to do so", in a way which makes it compatible with the Bill of Rights. The same provisions for appeal to the Northern Ireland Court of Appeal and the House of Lords and/or the Privy Council would apply. But there would still be a bar on overruling provisions of an Act of the Westminster Parliament, for instance in respect of emergency legislation or tax law, although a declaration of incompatibility could still be made which could put pressure on the Government to re-examine incompatible provisions. And there would of course be no further appeal to the European Court of Human Rights for the supplementary rights, because that Court can adjudicate only on Convention rights. The flexibility available when choosing judicial panels for the Privy Council could perhaps allow judges from other common law jurisdictions, such as Commonwealth countries and the Republic of Ireland, to be selected, thus providing what some would see as a more balanced composition than for the House of Lords or Privy Council as currently constituted.

A number of bodies and individuals have proposed to the Commission that a new Human Rights Court or Constitutional Court should be created for Northern Ireland which would have sole or superior authority over decisions on the interpretation and enforcement of the Bill of Rights. Many of these submissions referred to the example of the Constitutional Court in South Africa, which was established with the specific objective of building new confidence in the judicial process among those who had suffered at the hands of the ordinary courts during the apartheid regime. The Commission has also had the benefit of visits from two of the judges on that Court, including its President. Supporters of this view, notably within the Working Group on Implementation, also argued that the creation of a new court would facilitate the development of innovative approaches to enforcement.

Others have been of the view that the existing court structures in Northern Ireland are adequate, although virtually everyone seems to agree that more attention should be paid to the way in which judges for those courts are selected and trained.

The advantages and disadvantages of setting up a new Human Rights Court or Constitutional Court can be summarised as follows:

• It could provide for a judicial rights-based culture so as to increase the chances that human rights would be central to the thinking of all judges in all courts.

• It could represent a fresh start to the interpretation and enforcement of the full range of human rights in Northern Ireland and could thus help to bolster general confidence in all sections of the community in the rule of law and remove any doubts some people may have about the attitude of Northern Irish judges when dealing with human rights matters.

• It would facilitate the development of innovative approaches to enforcement, especially as far as social and economic rights are concerned, which judges trained in the traditional system might find difficult.

• In some cases it would be difficult to separate human rights issues, which would be the exclusive jurisdiction of the new court, from other issues and there might not be enough work for full-time judges dedicated only to human rights cases.

• It is not clear what the relationship of the judges of the new court would be to those in the ordinary courts and there might be difficulty in establishing the legitimacy of the new system. It could lessen the chances of making human rights central to the thinking of all judges in all courts.

• There would be political and constitutional difficulties in preventing decisions of the new court being subject to appeal to the House of Lords and/or the Privy Council and if appeals were permitted some of the alleged advantages of the system would be jeopardised.

The Commission is as yet undecided as to whether a new court should be recommended for Northern Ireland and would therefore particularly welcome views on this matter. Another option would be to recommend, as an alternative, or as a longer-term goal to be achieved in partnership with the Governments in Scotland and Wales, that the Privy Council should be developed into a modern and more effective Constitutional Court for the whole of the UK. The Commission is, however, agreed that whatever the option, new procedures for judicial appointments should be adopted, involving a Judicial Services Commission along the lines suggested by the Criminal Justice Review in March 2000, and that on-going human rights training for judges should continue to be developed.

A number of subsidiary issues have also been raised to, and within, the Commission in respect of the range of remedies which might be granted, the powers of courts of different levels and some related procedural matters.

Whether a new court is established or not, some additional consideration needs to be given to the remedies which may be granted by the courts.

Under the Human Rights Act 1998 each court is given a discretionary power to grant "such relief or remedy, or to make such order, within its powers currently held as it considers just and appropriate" (section 8(1)). This provision might be thought to give the courts a wide power to devise new remedies. But the inclusion of the phrase "within its powers currently held" means that the judges’ discretion is in fact more limited. For example, a lower court cannot award greater damages than it is permitted to award for other purposes and lower courts or tribunals are not able to grant injunctions requiring public authorities to take remedial action. And only the higher courts are entitled to declare subordinate legislation, including Acts of the Northern Ireland Assembly, invalid or to issue a declaration of incompatibility in respect of primary Westminster legislation.

The Working Group on Implementation, as well as submissions from the public, suggested that a wider power to grant an appropriate remedy would be relevant. One possible model is provided by Article 13 of the European Convention on Human Rights which provides that:

This Article has not been incorporated into British or Northern Ireland law under the Human Rights Act 1998, on the ground that section 8 of that Act (see above) provides sufficient powers for the courts. It would be possible, however, for a similarly broad power to be included in the Northern Ireland Bill of Rights along the following lines:

A clause of this kind would permit the courts to develop innovative remedies of the kind which have been used in other common law jurisdictions, such as India and South Africa, in order to give effect to social and economic rights in a politically sensitive and realistic manner. Objections may be raised to a provision of this kind, however, on the grounds that lower courts should not be granted a completely unfettered discretion, notably in declaring subordinate legislation to be invalid or awarding very large sums in compensation, and that it would in any event be difficult to justify different powers of enforcement under the Northern Ireland Bill of Rights from those under the Human Rights Act in the rest of the UK. The Commission would welcome views on this issue.

A related issue concerns the extent to which lower courts should be entitled or required to refer cases to a higher court so that more extensive remedies can be granted. Under the Human Rights Act 1998, as has been explained, lower courts are restricted in the amount of compensation or the nature of the remedy they can grant. It has therefore been suggested that individuals who complain of a violation of their rights under the Bill of Rights should be entitled to require their complaint to be referred to a higher court. The Commission’s preliminary view on this issue is that a duty should be imposed on magistrates’ courts and county courts to refer a case to the High Court if the decision they propose to take in the case is in their view based on legislation which is incompatible with the Bill of Rights. It would welcome views on this.

Under the Human Rights Act 1998 there is a requirement that only a victim of an alleged violation of a right under the European Convention on Human Rights may take a case in court. This reflects a similar rule in respect of complaints to the European Court of Human Rights in Strasbourg and means that challenges to legislation can be made only by or on behalf of someone who has been directly affected by it. It has been argued in some submissions to the Commission that this requirement should not apply in respect of allegations of violations of the Bill of Rights, so that challenges could be made to legislation or other administrative policies on a general basis by relevant public bodies or private organisations or groups.

The Commission’s preliminary view is that this is a reasonable suggestion and that courts should be given a discretionary power to hear cases brought by interested public bodies, such as the Equality Commission, the Police Ombudsman or the Human Rights Commission, or by interested private sector organisations, where it is in the interests of justice or where it will assist in the effective protection of the rights guaranteed under the Bill. An appropriate procedure for this purpose could be based on the current rules of judicial review in which any interested person or body may make an application for permission to take a case to the High Court.

The following clause is put forward for consideration in this context:

A further issue which has been raised is whether there should be a formal procedure for the reference of proposed legislation to the courts in advance of its formal enactment. A procedure for reference to the Supreme Court on the constitutionality of bills which have been passed by the legislature in the Irish Republic but not yet signed by the President is provided under Article 26 of the Irish Constitution and there are similar provisions in many other constitutions, such as the French one. Article 26 of the Irish Constitution provides, in part, as follows:

A similar procedure has already been adopted for the reference by the relevant Secretary of State to the Privy Council of proposed legislation coming before the Northern Ireland Assembly where there are doubts about its compatibility with the European Convention or where it appears to be beyond the powers devolved to the Assembly.

The Commission’s preliminary view is that a similar procedure should be applied in respect of the proposed Bill of Rights, but that, contrary to the system in the Republic of Ireland, the decision of the court should not be regarded as binding for all future cases where a challenge is raised to the legislation in question, since issues other than those considered by the court may arise in the future. The Commission has for the time being drafted a simple clause to convey its intentions in this regard. It would need to be refined so as to state, for example, who may trigger the reference and when.

The main objective of establishing a Bill of Rights for Northern Ireland is to give people in all sections of the community a guarantee that, whatever happens to the balance of political power in the Assembly or the Executive, and whichever government has sovereignty over Northern Ireland, the fundamental rights included in the Bill will be maintained. To achieve this some method must be found to "entrench" the Bill, that is, to ensure that the rights cannot be taken away by a future UK or Irish Government without reference to the people of Northern Ireland.

The Belfast (Good Friday) Agreement 1998 states that the rights supplementary to the European Convention on Human Rights which are to form part of the Northern Ireland Bill of Rights should be adopted by Westminster legislation. The same form of legislation has been used to incorporate the European Convention into UK law. But either of these laws could be repealed at any time by a simple majority in the Westminster Parliament, although the UK Government would still be bound by the European Convention and cases could still be taken to the European Court of Human Rights in Strasbourg.

The important question is therefore how the provisions of a Northern Ireland Bill of Rights can be entrenched within the current rules of the unwritten UK constitution and, in the event of a change of sovereignty, within the Irish Constitution. At the same time, some aspects of the Bill may need to be altered or amended in the future as circumstances change. Consideration must therefore also be given to finding acceptable procedures for amending or developing the Bill in the future.

The Commission has identified three methods by which these objectives could be achieved:

1. a requirement that no change in the guarantees in the Bill of Rights could be made without the formal request or consent of the Northern Ireland Assembly by a cross-community vote;
2. the incorporation of the guarantees in the Bill of Rights in an international treaty agreed between the UK and Irish Governments;
3. a provision that no change in the guarantees in the Bill of Rights could be made without a referendum of the people of Northern Ireland.

These methods are not mutually exclusive. Any or all of them could be combined to give added legitimacy and backing to the Bill. At this stage in its consultation the Commission has decided to suggest all three possibilities so that the advantages and disadvantages and the practicalities of each of them can be assessed. We would welcome views on which method, or combination of methods, would be most appropriate for the proposed Bill of Rights.

One of the underlying principles of the Agreement is that major decisions in the governance of Northern Ireland should require the support of both main sections of the community. The provisions in respect of cross-community resolutions in the Assembly could be used to ensure that the adoption of the proposed Bill of Rights and any future amendments had the support of both communities. Thus, the Bill might say:

A clause of this kind would not give an absolute guarantee, since the principle of parliamentary sovereignty is so central to the UK constitution. But the mechanism for entrenchment is well established in UK constitutional practice. It was used when the UK Parliament granted a form of self-government to the then dominions of Australia, Canada and the Irish Free State under the Statute of Westminster in 1931 and has been formally respected ever since, notably in the process by which the new Canadian Charter of Rights was adopted in 1982.

Through the Agreement the British and Irish Governments are already committed to the principle that whichever government has sovereignty over Northern Ireland it shall exercise its power with "rigorous impartiality on behalf of all the people in the diversity of their identities and traditions and ... founded on the principles of full respect for and equality of civil, political, social, and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos and aspirations of both communities". It would be wholly in line with this commitment for the terms of a more specific Bill of Rights for Northern Ireland to be included in a new British-Irish Agreement so that neither Government could legitimately remove or alter any of its terms without the consent of the other. This approach is referred to in Chapter 1, dealing with the Preamble to the Bill of Rights.

Given the suspicion of some people in Northern Ireland that the two governments might agree among themselves to alter the terms of any such treaty without reference to the people of Northern Ireland, it might be desirable to combine this form of protection with one or other of the other mechanisms. Consideration might also be given to the inclusion of the European Union or the Council of Europe as parties to any such treaty, thereby making them external guarantors of the terms of the Bill.

It is normal constitutional practice in many countries for any amendment to the provisions of the Constitution, and in particular to any national Bill of Rights, to require the approval of the people in a referendum. This is the position under the Irish Constitution and a similar procedure was followed in respect of the approval of the Agreement itself.

In a divided society like Northern Ireland, however, the approval or future amendment of a Bill of Rights by a simple majority would not give the necessary degree of protection for whichever main community formed a minority of the population at any given time. The fact that 71% of the electorate voted for the Agreement was generally taken as evidence of cross-community support for the Agreement. It might therefore be necessary to require a weighted majority of, say, two-thirds or three-quarters of the population to ensure that a majority or at least a substantial proportion in each main community consented to the new provisions.

A possible alternative would be to establish communal voting rolls for unionists, nationalists and others and to require a majority in each section of the electorate. But no support for an approach of this kind has been expressed and the Commission does not recommend it.

The Commission has also considered in this context the possible use of a preferendum. This would allow several options for a proposed amendment to be listed. Voters could then express their views by indicating their order of preference for each option in a similar way to that used in elections by proportional representation. The advantage of this system is that it would permit a greater degree of choice for the electorate than a simple yes or no vote. But there would be a number of difficulties in making formal provision for this method. It would be necessary for a body to select the options to be put to the electorate. The selection of these options, which would presumably have to include the option that no change should be made, would clearly have a substantial impact on the eventual outcome. It would also be necessary to prescribe a procedure for assessing the way in which the preferences expressed by individual voters would be counted. This could be done by adopting the single transferable vote system currently used in elections. Alternatively, the preferences could be expressed with the highest value for the most favoured option and added up in such a way that the option which received the highest level of support would be deemed to have been approved. But there are considerable uncertainties over the operation of a system of this kind and no established experience of its use in practice. The Commission is not currently persuaded that the system would be workable but is open to further submissions on the issue.

The people of Northern Ireland

1. promote tolerance, mutual respect, understanding and co-operation among all persons living in Northern Ireland, irrespective of their cultural, ethnic, religious or linguistic identity, in particular in the fields of education, culture and the media.

1. mutual respect for all people in the diversity of their identities and traditions; and
2. parity of esteem and just and equal treatment for the identity, ethos and aspirations of both communities; the programmatic standards in the Framework Convention shall provide a guide as to how this is to be achieved.

Equality between men and women:

Right to reproductive health:

Freedom from gender-based violence:

Right to fair, full and effective participation:

1. in defence of any person from unlawful violence;
2. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
3. in action lawfully taken for the purpose of quelling a riot or insurrection.

1. when the official is acting in self-defence or defence of others or when there is an imminent threat of death or serious injury;
2. to prevent the perpetration of a particularly serious crime involving grave threat to life; or
3. to arrest a person who is presenting such a danger as in (b) and who is resisting the arrest;

1. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
2. to have adequate time and facilities for the preparation of his defence;
3. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
4. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
5. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

1. the right of every victim to be treated with compassion and respect for his or her dignity.
2. the right of every victim to obtain redress by way of restitution or compensation through formal or informal procedures that are expeditious, fair, inexpensive and accessible.
3. the right of every victim to have the crime in question investigated thoroughly, promptly and impartially.
4. the right of every victim to be informed of the progress of any relevant investigation and to have his or her concerns taken into account in the conduct of any relevant legal proceedings.
5. the right of every victim to reasonable assistance during the trial of any person charged in connection with the crime in question.

1. the right to have criminal charges explained promptly and in appropriate language;
2. the right to have access to appropriate legal and other assistance in the preparation of a defence;
3. the right to have any criminal charge determined without delay by a competent, independent and impartial tribunal in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is contrary to his or her best interests and taking into account his or her age or situation, of his or her parents or legal guardians;
4. the right to have an appropriate adult present to represent the interests of the child even if a solicitor is also present;
5. the right to be tried for a criminal offence in an appropriate setting and manner, having regard to the child’s age, maturity, needs, vulnerability and understanding;
6. the right to have measures taken to ensure his or her participation in and understanding of the criminal proceedings;
7. the right to have his or her privacy respected before, during and after the proceedings.

1. the right to be separated from adults in detention and (if not yet found guilty) from children who have already been found guilty;
2. the right to prompt access to appropriate legal and medical assistance and pastoral care;
3. the right to privacy and respect for his or her correspondence;
4. the right to maintain regular and direct contact with parents, siblings or other family members and friends, save in exceptional circumstances;
5. the right to access the Northern Ireland Curriculum and/or educational and vocational training necessary to prepare for his or her re-integration and constructive participation in society following release.

1. In relation to the Irish language and Ulster-Scots, legislation shall be introduced to implement the commitments made under the Belfast (Good Friday) Agreement and the European Charter for Regional or Minority Languages.
2. Without prejudice to the foregoing provisions, legislation shall be introduced to ensure for members of all linguistic communities, where there is sufficient demand, the following rights in respect of their language or dialect:

[1] In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

[2] No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

[3] Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.

Question 1: (see C. The Commission’s mandate)

When the Belfast (Good Friday) Agreement says that the Bill of Rights is "to reflect the particular circumstances of Northern Ireland", how should this phrase be interpreted?

Question 2: (see C)

Whichever interpretation you prefer, what are your reasons for doing so?

Question 3: (see C)

What are the consequences of your preference as far as the types of rights which are to be included in the Bill of Rights are concerned?

Question 4: (see Chapter 1. Preamble)

Do you agree that there should be a Preamble to the Bill of Rights for Northern Ireland?

Question 5: (see Chapter 1)

If so, have you any suggestions as to how the Commission’s suggested wording for the Preamble should be changed?

Question 6: (see Chapter 2. Democratic rights)

Do you agree that elected representatives in Northern Ireland should have the right to fair, full and effective participation in the governance of Northern Ireland?

Question 7: (see Chapter 2)

Do you agree that the voting age in Northern Ireland for local and Assembly elections should be reduced from 18 to 17 or lower?

Question 8: (see Chapter 2)

Do you think that the Bill of Rights should contain a right to accountable and transparent government? If so, how would you word such a right?

Question 9: (see Chapter 3. Rights concerning identity and communities)

Do you agree that the Bill of Rights should not contain a provision dealing with parity of esteem?

Question 10: (see Chapter 3)

Do you think the Bill of Rights should confer a right on individuals not to be treated as a member of a particular community? If so, how should such a right be worded?

Question 11: (see Chapter 3)

With which of the proposed clauses dealing with the rights of persons as members of different communities in Northern Ireland do you agree? Do you have any further suggestions to make in this area?

Question 12: (see Chapter 4. Equality and non-discrimination)

Should "status of victim" be a ground for protecting individuals against discrimination?

Question 13: (see Chapter 4)

Should the clause in the Bill of Rights dealing with positive action require or permit such action?

Question 14: (see Chapter 5. The rights of women)

Where would the rights of women be best placed in the Bill of Rights – within a special chapter on women’s rights or allocated as appropriate to relevant chapters in the Bill?

Question 15: (see Chapter 6. Rights to life)

Should the right to life be more strictly protected than in the way suggested by the Commission through its proposed addition to Article 2 of the European Convention on Human Rights?

Question 16: (see Chapter 6)

Should the Bill of Rights protect the right to personal and/or physical integrity? If so, how should the provision be worded?

Question 17: (see Chapter 7. Criminal justice and administrative justice)

Should the Bill of Rights confer a right on persons who have been arrested to consult with a solicitor of their choice?

Question 18: (see Chapter 7)

Should the Bill of Rights confer a right to jury trial? If so, when precisely should this right apply?

Question 19: (see Chapter 7)

Should the Bill of Rights include a provision protecting people from being tried twice for the same offence?

Question 20: (see Chapter 8. The rights of victims)

Should the Bill of Rights include a provision which confers rights on all victims of past crimes or one which limits the rights to people who were victims of the conflict?

Question 21: (see Chapter 8)

Should the definition of "victim" in the Bill of Rights include people who are not victims of crimes?

Question 22: (see Chapter 10. The rights of children)

Which approach would you prefer for the protection of children’s rights in the Bill of Rights?

Question 23: (see Chapter 10)

Where would the rights of children be best placed in the Bill of Rights – within a special chapter on children’s rights or allocated as appropriate to relevant chapters in the Bill?

Question 24: (see Chapter 10)

Should the enhanced right of children to play a constructive role in society be included in the Bill of Rights?

Question 25: (see Chapter 10)

If so, how should this right be enforceable?

Question 26: (see Chapter 10)

Should state support for children to enable them to grow up in a stable, safe and loving family environment be framed as a positive right or as a state obligation?

Question 27: (see Chapter 10)

Should the age of criminal responsibility be raised from 10 to 12 years?

Question 28: (see Chapter 10)

Should the Bill of Rights include an obligation on the state to keep the age of criminal responsibility under review?

Question 29: (see Chapter 11. Education rights)

Should the Bill of Rights require the state to ensure that admission criteria for educational establishments ensure access to effective education?

Question 30: (see Chapter 11)

Should the Bill of Rights remove the specific exemption of teachers from the laws on religious and political discrimination in Northern Ireland, leaving the matter to be regulated in the same way as in other employment fields?

Question 31: (see Chapter12. Rights to freedom of thought)

Should the Bill of Rights supplement the rights to freedom of expression and to receive and impart information as protected by Article 10 of the European Convention?

Question 32: (see Chapter 13. Language rights)

Do you agree with the Commission’s approach to the protection of language rights?

Question 33: (see Chapter 13)

If you do not, what greater degree of protection would you support?

Question 34: (see Chapter 14. Social, economic and environmental rights)

Is the proposed general clause, when interpreted in the light of the principles mentioned in the text above, an effective way of protecting social and economic rights in Northern Ireland?

Question 35: (see Chapter 16. Limitations)

Do you think that there should be a general limitations clause in the Bill of Rights or would you prefer specific limitations to be drafted for particular clauses?

Question 36: (see Chapter 16)

Whichever you prefer, have you any suggestions as to how the limitation clause(s) should be worded?

Question 37: (see Chapter 18. Enforcement)

Should the proposed Bill of Rights create a special court to deal with alleged human rights violations in Northern Ireland?

Question 38: (see Chapter 18)

Do you agree that a clause on remedies, as worded above, should be included in the Bill of Rights?

Question 39: (see Chapter 18)

Should the Bill of Rights impose a duty on lower courts to refer cases to higher courts if they believe that the relevant legislation is incompatible with the Bill of Rights?

Question 40: (see Chapter 18)

Should any interested individual or body be able to bring a case under the Bill of Rights?

Question 41: (see Chapter 18)

If so, what test should be applied when deciding whether an individual or body has the requisite "interest"?

Question 42: (see Chapter 18)

Should there be a mechanism whereby the compatibility of proposed legislation with the Bill of Rights can be referred to the courts?

Question 43: (see Chapter 18)

If so, what kind of mechanism would you propose?

Question 44: (see Chapter 19. Entrenchment and amendment)

What method or combination of methods should be adopted for entrenching and amending the Bill of Rights?

Question 45: (see Chapter 19)

Should amendments to the Bill of Rights be voted on by some form of preferendum and, if so, how should the options be selected and how should the votes be counted?

APPENDIX 3 – Additional Protocols to the European Convention on Human Rights

The following rights contained in Protocols 4, 7 and 12 to the European Convention on Human Rights have not yet been ratified by the UK government and are therefore not included in the Human Rights Act of 1998. The Commission has not yet decided whether these additional rights should be included in its final advice on the Bill of Rights, but has included this appendix for consideration and reference.

Protocol 7 to the European Convention

Article 1 – General prohibition of discrimination

The process by which a court or a judge makes a decision.

Action relating to the organisation, powers or duties of public authorities.

An assumption made by a court or judge which suggests that a person is not innocent.

The individual or interested party pursuing a claim in court.

In the context of minority rights, the process of being absorbed by the influence of majority traditions and practices.

The right or ability to govern oneself; freedom to determine one’s own actions or behaviour.

A rule of evidence which requires a person to prove something. For example, in criminal trials, the prosecution has the burden of proving that the accused is guilty beyond a reasonable doubt.

Law which has been built up over the course of time on the basis of decisions taken by judges (sometimes called "precedents"). It can be contrasted with legislation, which is law made by, or under the authority of, Parliament at Westminster.

The ability of domestic (UK) law to be read together with European law without having to be specially modified.

A court with the power to hear a particular case.

Required by law; obligatory.

An infringement of rules.

Rules of political practice which are traditionally regarded as binding by those to whom they apply, but which are not laws as they are not enforced by the courts.

Compensation for a loss which is the natural and foreseeable result of a wrongful act.

A power granted by the Human Rights Act to Northern Ireland's High Court (and equivalent courts elsewhere in the UK) to read primary legislation (defined below) as inconsistent with the rights protected by the European Convention of Human Rights.

The process by which a government formally declares that an international standard set down in a treaty is not binding on the state concerned. Under Article 15 of the European Convention of Human Rights, member states may derogate from adhering to certain Convention rights in a time of emergency threatening the life of the nation.

The transfer of rights, powers and responsibility to another body. In Northern Ireland the Assembly has the devolved power to legislate on matters "transferred" to it by the Parliament at Westminster. The UK Parliament has retained the power to legislate over "excepted" and "reserved" matters, such as taxation, foreign relations and national defence.

This occurs when a law imposing obligations on a state can be invoked by a person to challenge the actions of the state.

The freedom of an official to act in a manner which fits the occasion.

Autonomous nation-states within the Commonwealth of Nations, of equal status to one another with respect to their domestic or internal affairs and united by a common allegiance to the Queen of England.

The prosecution of a person for an offence for which he or she has already been prosecuted.

The legal process of establishing rights firmly so as to prevent their future removal.

Equal opportunity means equal access to society's resources, such as pay, employment or education, without discrimination. Equal treatment means equal application of all laws and actions, without discrimination.

The distinctive character, spirit, and attitudes of a people, culture or era.

Urgent demands; pressing needs.

Equality which is measured by comparing whether people in like situations are receiving like treatment.

A right or obligation which is not dependent upon any other right or obligation.

As defined by the Sex Discrimination (NI) Order 1976, the Race Relations (NI) Order 1997 and the Fair Employment and Treatment (NI) Order 1998, this arises where, by reason of the context of the job in question, gender, race or religion constitutes a genuine determining factor in deciding who should get the job (e.g. employing a man to play Hamlet).

The person who binds him- or herself by a guarantee.

The state or official with authority to make a legally binding contract or treaty.

Rights which cannot be given up or taken away.

As in police detention whenever a person is detained without the ability to contact friends or relatives.

To secure against, or reimburse for, hurt, loss or damage.

A court order compelling a person to do or not to do a specified act. It is used to prevent a future harmful action rather than to compensate for an injury which has already occurred. It provides relief from harm for which an award of money is not a satisfactory solution.

A legal process whereby a person who is aggrieved by a decision of a public authority can seek a ruling from a High Court judge that the decision in question was taken without following the correct procedures.

The power of a court to interpret and apply laws.

The body of court decisions, as distinguished from legislation, which set out the principles used by judges when deciding cases.

A group of people who share a common language or dialect.

The process of incorporating equality rights into the everyday policy-making and practice of public and private bodies.

A treaty involving more than two nations.

Rights which states must always observe and which may at no time be qualified because, for instance, of a public emergency. In the European Convention on Human Rights the non-derogable rights are the right to life (Article 2), the right not to be tortured or subjected to inhuman or degrading treatment or punishment (Article 3), the right not to be enslaved or forced to work (Article 4 (1)) and the right not to be punished for something which was not unlawful at the time it was done (Article 7).

A term used in the Belfast (Good Friday) Agreement suggesting that the two major communities within Northern Ireland should be given equal respect and equal value.

Beliefs about how a person should be taught or receive education.

Laws or rights which do not have to be complied with but which permit certain things to be done. They say that something "may" be done rather than "shall" be done.

Law or actions which are meant to redress discrimination against individuals from disadvantaged groups. Examples would include training programmes in certain employment sectors for women, racial minorities or people with disabilities.

Legislation enacted by Parliament at Westminster. Under the Human Rights Act 1998, the High Court of Northern Ireland may declare primary legislation to be incompatible with the European Convention on Human Rights, but it cannot declare such legislation to be invalid.

The persons who are the principal advisers to the Queen, including cabinet ministers, peers, church leaders, ambassadors and senior judges.

This occurs whenever a public authority acts outside the procedure which prescribes how it should act. It is a ground for seeking "judicial review" from a court (see above).

Laws which require the state to adopt certain policies over an unspecified time period.

The representation of political parties in an elected body (such as the Northern Ireland Assembly) in proportion to the votes they win.

The general principle that a public authority may not impose obligations or restrict the rights of citizens except to the extent to which this is strictly necessary and related to legitimate objectives. (See also "single transferable vote system".)

The area of authority or responsibility.

A declaration which allows a state to keep its policies or laws from being challenged under an international treaty. They must be compatible with the overall purpose of the treaty.

Making good a loss suffered.

The right of a nation or people to determine its own form of government without influence or control from outside.

Making oneself appear guilty through a statement or providing evidence against oneself in a trial for a criminal offence.

A system of proportional representation (see above), using multi-member constituencies and a preferential voting system. Voters rank candidates numerically, with candidates who obtain the required quota of votes being elected and surplus votes being distributed to the other candidates further down the list of preferences.

The supreme political authority in a society.

Obligations imposed by primary or subordinate legislation.

Legislation made by authorities (such as government Ministers) under a power delegated to them by Parliament at Westminster. Also called "secondary" or "delegated" legislation.

A right which assists the exercise of another right.

The type of gross unreasonableness which has to exist under current law before a High Court judge can declare a decision by a public authority to be unlawful. It is named after a particular case decided in England, Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948).

Colin R Munro, Studies in Constitutional Law, 2^nd ed., 1999; Butterworths, London.

Leslie Rutherford and Sheila Bone (eds.), Osborn’s Concise Law Dictionary, 8^th ed., 1993; Sweet and Maxwell, London.

Richard J Townshend-Smith, Discrimination Law: Text, Cases and Materials, 1998; Cavendish Ltd, London.

American Bill of Rights (1791)
Bill of Rights of South Africa (1996)
Bunreacht na hÉireann (Constitution of Ireland) (1937)
Canadian Charter of Rights and Fundamental Freedoms (1982)
Constitution of the Federal Republic of Germany (1949, amended 1990)
Constitution of India (1949)
EU Directives: Equal Treatment in Employment and Occupation (1999)
Burden of Proof (1997)
Equal Treatment (1976)
European Charter for Regional or Minority Languages (1992)
European Social Charter – Revised (1996)
European Union Charter of Fundamental Rights (2000)
Framework Convention for the Protection of National Minorities (1995)
French Declaration of the Rights of Man and the Citizen (1789)
Limburg Principles on the Implementation of the International Covenant on Economic, Social
and Cultural Rights (1986)
Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997)
Protocol 1 to the European Convention (1952)
Protocol 4 to the European Convention (1963)
Protocol 6 to the European Convention (1983)
Protocol 7 to the European Convention (1984)
Protocol 12 to the European Convention (2000)
Report of the European Committee for the Prevention of Torture (1994)
Rome Statute of the International Criminal Court (1998)
Rules governing the War Crimes Tribunals for the Former Yugoslavia and Rwanda (1995; 2000,
as amended)
Treaty of Amsterdam (1999)
United Nations Basic Principles and Guidelines on the Right to Reparation for Victims of Gross
Violations of Human Rights and Humanitarian Law (1999)
United Nations Basic Principles for the Treatment of Prisoners (1990)
United Nations Basic Principles on the Independence of the Judiciary (1985)
United Nations Basic Principles on the Role of Lawyers (1990)
United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
(1990)
United Nations Body of Principles for the Protection of all Persons under any Form of Detention
or Imprisonment (1988)
United Nations Convention against all Forms of Discrimination in Education (1962)
United Nations Convention on the Elimination of all Forms of Racial Discrimination (1965)
United Nations Convention on the Elimination of Discrimination Against Women (1980)
United Nations Convention on the Rights of the Child (1990)
United Nations International Covenant on Civil and Political Rights (1966)
United Nations International Covenant on Economic, Social and Cultural Rights (1966)
United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power (1985)
United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious
and Linguistic Minorities (1993)
United Nations Fourth World Conference on Women, Beijing Platform for Action (1994)
United Nations International Conference on Population and Development (1994)
United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary
and Summary Executions (1989)
United Nations Standard Minimum Rules for Non-Custodial Measures (1990)
United Nations World Conference on Human Rights (1993)
Universal Declaration of Human Rights (1948)
Vienna Declaration and Programme of Action (1993)

Belfast (Good Friday) Agreement (1998)
British Crime Survey (1996)
Children’s (Northern Ireland) Order (1995)
Data Protection Acts (1984 and 1998)
English Bill of Rights of 1688
Fair Employment and Treatment (Northern Ireland) Order (1988)
Labour Force Survey (1999)
New Targeting Social Need Programme (2000)
Northern Ireland Act (1998)
Northern Ireland (Emergency Provisions) Act (1973, 1996 and 1998)
Northern Ireland Executive’s Programme for Government 2001-2004
Northern Ireland House Condition Survey (1996)
Northern Ireland Housing Market 2000-2003: Review and Perspectives (1999)
Northern Ireland Women’s Aid Federation, Statistical report (2000)
Parades, Protests and Policing, NIHRC Report (2001)
Police and Criminal Evidence (Northern Ireland) Order (1989)
Prevention of Terrorism (Temporary Provisions) Act (1974 and 1989)
Race Relations (Northern Ireland) Order (1997)
Report of the Committee of Inquiry into Police Interrogation Procedures of Northern Ireland (Bennett Report, 1979)
Report of the Review of the Criminal Justice System (2000)
Royal Ulster Constabulary, Crime Statistics (2000)
Sex Discrimination (Northern Ireland) Order (1976)
Statute of Westminster (1931)
Terrorism Act (2000)

Belgian Linguistic case (1968) 1 EHRR 241
Brannigan and McBride v UK (1993) 17 EHRR 539
Council of Civil Service Unions v Minister for Civil Service [1984] AC 374
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Jordan v UK ( 4 May 2001)
McCann and others v UK (1995) 21 EHRR 97
Miranda v Arizona (1966) 384 US 436
Open Door Counselling and Dublin Well Woman Centre v Ireland (1992) 15 EHRR 244
Osman v UK (1998) 29 EHRR 245
A v UK (1998) 27 EHRR 611
T v UK (2000) 30 EHRR 121
V v UK (2000) 30 EHRR 121

For cases before the European Court of Human Rights, European Court of Justice and for regional instruments:

Council of Europe: www.coe.int

European Union: www.europa.eu.int

For United Nations documents:

United Nations High Commissioner for Human Rights: www.unhchr.ch

For national constitutions:

www.constitution.org/cons/natlcons.htm

For a general library of human rights documents and publications:

The following is a list of organisations which made submissions between March 2000 and June 2001, in a variety of formats, to the Human Rights Commission concerning the Bill of Rights for Northern Ireland. While we have endeavoured to be comprehensive in this listing, it is possible that some organisations have been omitted because, for example, their submissions formed part of a composite submission sent to the Commission in the name of only one organisation. The Commission also received a number of submissions from individuals who are not included in the list.

Except in those cases where the organisation or individual making the submission wanted it to be kept confidential, the Commission can give public access to any of the submissions received. They can be consulted at the Commission’s premises between 9.00am and 5.00pm, Monday to Friday. It would be helpful if prior notice could be given of any such request to view submissions.

Ababú
ACCORD NI
Action on Medical Negligence Association
Adrenal Hyperplasia Network
Age Concern Northern Ireland
Alliance for Choice
Alliance Party
Amnesty International, UK
Archdiocese of Armagh
Ardoyne Association / Ardoyne Women’s Forum
Armagh and Dungannon Adolescent Partnership Project
Arts for All
Ballymena Community Forum
Ballynafeigh Community Development Association
Barnardos Aftercare Project
Basic Right Campaign
Bawnacre Community Centre, Irvinestown
Beeches Management Centre
Belfast Travellers’ Education & Development Group
Belfast Women’s Training Services
Binnian Lodgers
Boord o Ulstèr-Scotch
Brook, Belfast
Care for Northern Ireland
Carers National Association Northern Ireland
Carrickfergus MENCAP Society
Catholic Bishops of Northern Ireland
Children’s Law Centre
Church of Ireland, Working Group on Political Developments
Civic Forum
Committee on Public Morals
Committee on the Administration of Justice
Community Arts Forum
Community Change
Community Organisations of South Tyrone and Area
Community Relations Training and Learning Consortium
Cornerstone Community
Council for Catholic Maintained Schools
Council for Education in World Citizenship
Craigavon Adolescent Partnership
Craigavon Independent Advice Centre
Cumann na Meirleach Ard Mhaca Theas
De Borda Institute
Democratic Dialogue
DergFinn Partnership
Derry Trades Union Council
Diocesan Advisers of Down and Connor
Disability Action
Down Lisburn Trust
Dungannon 50+ Club
Dungannon Visually Impaired Group
East Belfast Community Development Agency, Community Participation Project
Education for Chastity Family Support Group
Family Caring Centre
Family Planning Association (NI)
Federation of Women’s Institutes of Northern Ireland
Firínne
Fleming Fulton School
Friends of the Earth Belfast
Friends of the Earth Northern Ireland
Greater East Belfast Partnership Youth Strategy Group
Green Action, Queen’s University, Belfast
Green Party, NI
Health Services Department, Occupational Health Unit
Include Youth
Inner East Youth Project
Interpride Ireland
Irish Council of Churches
Irish Network for Non-violent Action Training and Education
Knights of St Columbanus
La Leche League of East Antrim and La Leche League of Bangor
La Leche League of Ireland
Lawyers for Life
Leonard Cheshire Disabled People’s Forum
Life (NI)
Maranatha Community Northern Ireland
Men to Men
MENCAP Capability Group
Methodist Church in Ireland, Council on Social Responsibility (Northern Executive)
Millview Resource Centre
Minority Ethnic Community Health and Social Well-Being Project
Multi-Cultural Resource Centre
National Childbirth Trust
National Union of Journalists
National Union of Students – Union of Students in Ireland
New Ireland Group
Newhill Youth and Community Association
Newry Adolescent Partnership
Newry and Mourne User Consortium
North and West Belfast Health and Social Service Trust (Fostering Team)
North Down Women’s Forum
North Eastern Education and Library Board
Northern Ireland Association for the Care and Resettlement of Offenders
Northern Ireland Committee, Irish Congress of Trade Unions
Northern Ireland Council for Integrated Education
Northern Ireland Council for Voluntary Action
Northern Ireland Doctors for Life
Northern Ireland Environment Link
Northern Ireland Gay Rights Association
Northern Ireland Public Service Alliance
Northern Ireland Tenants Action Project
Northern Ireland Women’s Coalition
Northern Ireland Women’s European Platform
Northern Ireland Youth Forum
Omagh District Council
One World Centre Northern Ireland
Orana House Aftercare Group
Organisation of the Unemployed (NI)
Parenting Forum NI
Pat Finucane Centre
POBAL
Precious Life
Presbyterian Church in Ireland, Church and Government Committee
Prison Officers’ Association
Rathfriland District LOL No 3
Reformed Presbyterian Church of Ireland, Committee on Public Morals
Roden St Youth Focus Group
Roe Valley Women’s Network
Royal Hospitals
Save the Children
Simon Community Northern Ireland
Sinn Féin
Social Democratic and Labour Party
Society for the Protection of Unborn Children
Soroptimist International of Belfast
Southern Health and Social Services Board
Southern Area Children and Young People’s Committee
Speechmatters
Springfield Residents Action Group / Greater Clonard Ex POWs Association
St Columb’s Park House
St Dominic’s High School
St Rose’s Parents Group
Sticky Fingers
Training for Women Network (NI) Ltd
Traveller Movement (NI)
Tullyally Community Group, Tullyally and District Development Group
Ubuntu Consortium Ltd
Ulster Girl Guides Peer Educators
Ulster Unionist Party
UNISON Northern Ireland
Voluntary Service Belfast
Waterside Development Trust
Wave Youth
West Belfast Economic Forum
West Belfast Partnership Board, Children and Young People’s Sub-Group
West Belfast Partnership Board/Páirtiocht Iarthar Bhéal Feirste
WheelWorks
Women Into Politics
Women Together … Moving On
Women’s Aid
Women’s Centre, Derry
Women’s Support Network
Youth@CLC