Towards a Northern Ireland bill of rights

Liverpool Law Review

Volumn 23, Issue 1, 2001, Pages 33-56

  Meehan, Michael ^a  

^a LIVERPOOL JOHN MOORES UNIVERSITY   (United Kingdom)

Author keywords

An understanding of rights; History of Northern Ireland; Northern Ireland; Northern Ireland Bill of Rights; Northern Ireland Human Rights Commission; Rights

Indexed keywords

EID: 33748478062     PISSN: 0144932X     EISSN: 15728625     Source Type: Journal    
DOI: 10.1023/A:1014084729196     Document Type: Review

References (87)

1. Good Friday' Agreement (London: HMSO, 1998), Cmnd. 3883.
2. 71% voted in favour of the agreement in Northern Ireland with 94% doing so in the South.
3. See J. Morison and S. Livingstone, Reshaping Public Power: Northern Ireland and the British Constitutional Crisis (London: Sweet & Maxwell, 1995).
4. See also C. McCrudden "Northern Ireland and the British Constitution", in The Changing Constitution, 3rd edition, ed. J. Jowell and D. Oliver (Oxford: Clarendon Press, 1994), pp. 326-341,
5. and K. Boyle, T. Hadden and P. Hillyard Law and State: The Case of Northern Ireland (Belfast: Martin Robertson 1975), Chapters 2 and 9.
6. Paragraph 4 of the Rights section and the Northern Ireland Act 1998, s 69(7).
7. Making a Bill of Rights for Northern Ireland: A Consultation by the Northern Ireland Human Rights Commission NIHRC September 2001, at 9.
8. See J. Hayes and P. O'Higgins, Lessons From Northern Ireland (Belfast: SLS Legal Publications, 1990) for a comprehensive and wide-ranging review of this 'reality' in the North.
9. European Convention on Human Rights Act 2001 and Human Rights Commission Act 2000.
10. C. McCrudden, supra n. 3.
11. For example the Northern Ireland Constitution Act 1973 prohibited political and religious discrimination by public bodies, and the Fair Employment (Northern Ireland) Act 1976 extended this prohibition to employment in the public and private sectors with mechanisms established to monitor this.
12. Indeed as Moore and O'Rawe note Emergency legislation has been on the statute books in Northern Ireland as long as the State has existed. L. Moore and M. O'Rawe, "A New Beginning for Policing in Northern Ireland" in Human Rights, Equality and Democratic Renewal in Northern Ireland, ed. C. Harvey (Oxford: Hart Publishing, 2001).
13. Standing Advisory Commission on Human Rights 1977, The Protection of Human Rights by Law in Northern Ireland (London: HMSO, 1977), Cmnd. 7009. This body was established under the 1973 Act.
14. SAHCR 1977, Chap 6, para 13.
15. This 'temporary' arrangement endured in order to "buy time for constitutionalism" (McCrudden, supra n. 3, at 350) and allow for an internal settlement.
16. Anglo-Irish Agreement 1985 (London: HMSO, 1985), Cmnd. 9657.
17. The Intergovernmental Conference was the vehicle for such co-operation.
18. For more comprehensive discussion see T. Hadden and K. Boyle, The Anglo-Irish Agreement: Commentary, Text and Official Review (1989).
19. C. Harvey and S. Livingstone, "Human Rights and the Northern Ireland Peace Process", European Human Rights Law Review 2 (1999). Provisions like ss. 17-19 Northern Ireland Constitution Act 1973 individualised discrimination and ultimately failed to address deep-rooted sectarianism. A report published in 1991 Inequality in Northern Ireland found that male unemployment among catholics was two and a half times that of male protestants.
20. Actually containing two documents titled A Framework for Accountable Government in Northern Ireland and A New Framework for Agreement.
21. Mallie and McKittrick note that such an intertwining was "... in effect an ambitious attempt to construct a finely balanced double helix in which self-determination and consent where inseparable". E. Mallie, and D. McKittrick, The Fight For Peace: The Inside Story of the Irish Peace Process (London: Mandarin, 1997).
22. Downing Street Declaration (1993) Paragraph 5.
23. For an excellent overview of the changing face of constitutionalism in Northern Ireland reflecting these political evolutions see C. Harvey, "The New Beginning: Reconstructing Constitutional Law and Democracy in Northern Ireland", in supra n. 10, pp. 9-51.
24. B. O'Leary, "The Protection of Human Rights under the Belfast Agreement", Political Quarterly 2001, pp. 353-354.
25. Supra n. 22 at 354.
26. These amendments to Articles 2 and 3 of the Irish Constitution were carried by the referendum in the Republic of May 22 1998.
27. P. Mageean and M. O'Brien, "From the margins to the Mainstream: Human Rights and the Good Friday Agreement" in Fordham International Law Journal Vol. 2 N. 4 (April 1999).
28. Sections 68-70 and Schedule 7.
29. The Commission has encountered opposition from Unionist circles who have argued that none of its members have a "unionist" political background. Although equally divided between men and women and accurately reflecting the society's religious breakdown, its perspective has been seen as too "liberal".
30. Northern Ireland Act 1998 Section 69. See S. Livingstone, "The Northern Ireland Human Rights Commission", Fordham International Law Journal Vol. 22 N. 4 (April 1999)
31. and C. Harvey Building a Human Rights Culture, supra n. 10, pp. 120-124.
32. However the Commission received a setback on the 8th December 2000 when the Lord Justice agreed with a decision of the Coroner in the Omagh bombing inquest not to allow the Commission to apply to intervene as an interested third party. The Lord Chief Justice agreed that the body did not have an express statutory power to do so. This clearly contravened with previous practice where courts both in the Northern Irish jurisdiction as well as the European one (ECHR) had allowed submissions from the NIHRC. The Chief Commissioner Brice Dickson described the decision as driving "a coach and horses through the Commission's ability to promote human rights in the courts" (NIHRC Press Release 8/12/2000).
33. As well as establishing a Victims' Rights Project which produced a report to complement the Working Group's report on the subject (see below), the Commission also instigated reviews of the legislation affecting the aged, the mentally ill, and gay, lesbian and transsexual people.
34. UN General Assembly Resolution 48/134 (1993), Principles Relating to the Status of National Institutions on Human Rights.
35. However such powers have been granted to the Commission in the Republic. Commentators (including the NIHRC Chief Commissioner himself) have expressed their disfavour with this limitation, and a proposal to extend these powers of investigation has been one of the major features of the two year review report presented to the Secretary of State in accordance with s. 69(2) NIA 98. See B. Dickson, "New Human Rights Protections in Northern Ireland", 24 E L Rev. Human Rights Survey (1999), pp. 4-7,
36. and "Northern Ireland", Human Rights Law and Practice, ed. Lord Lester and D. Pannick (London: Butterworths, 1999), pp. 301-305.
37. Northern Ireland Act 98 s. 69(7) and its reference to Paragraph 4 of the relevant section of the Belfast Agreement.
38. Northern Ireland Act 1998 S. 6(2) provides that legislation passed by the Assembly which is not compatible with Convention rights as enacted by the Human Rights Act 1998 is invalid. This Act has been applicable to Northern Ireland law during the sporadic bursts of legislative activity when the devolved Assembly has been up and running.
39. Belfast Agreement, Section Rights, Safeguards and Equality of Opportunity Paragraph 4.
40. The NIHRC addresses these diverging views in its final consultation document Making a Bill of Rights for Northern Ireland and chooses to follow the more extensive interpretation (See pp. 12-14).
41. Paragraph 8a of its Strategic Plan 2000 to 2002 (NIHRC 2000).
42. B. Dickson, supra n. 32, at 8.
43. Paragraph 1. Supra n. 35.
44. Paragraph 2. Supra n. 35.
45. The Fair Employment Commission, the Equal Opportunities Commission, the Disability Council and the Commission for Racial Equality.
46. As provided for by Paragraph 6 of the rights section of the Belfast Agreement, and by Northern Ireland Act 1998 section 75 and Schedule 9.
47. Memorandum of Understanding between the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, 23 October 2000.
48. However, the RUC (now renamed the Police Service of Northern Ireland) and the Northern Ireland Police Authority do not have to comply with this section, a fact criticised by various political parties.
49. C. McCrudden, supra n. 3, at 103.
50. C. McCrudden, supra n. 3, pp. 344-350.
51. SACHR Religious and Political Discrimination and Equality of Opportunity in Northern Ireland: Report on Fair Employment (Cmnd 327, 1987).
52. See the Fourth Report of Select Committee on Northern Ireland Affairs 95/1999 for an analysis of the issues.
53. S. Livingstone, supra n. 28. The issues of freedom of expression and assembly in the North are good examples of such conflict.
54. B. Dickson, supra n. 32, at 8.
55. J. Morison and S. Livingstone, supra n. 3, pp. 138-148.
56. See the definition of "consociation" by O'Leary. See also R.A. Wilford "Inverting consociationalism? Policy, pluralism and the post-modern" in Northern Ireland: Politics and the Constitution (Oxford: OUP, 1992).
57. B. Dickson, supra n. 32.
58. See also B. Dickson, "The Protection of Human Rights: Lessons from Northern Ireland", Paul Sieghart Memorial Lecture (King's College, London 6 April 2000).
59. Belfast Agreement Constitutional Issues para. 1.
60. B. Crick, "Northern Ireland and the Concept of Consent", in Public Law and Politics, ed. C. Harlow (London: Sweet & Maxwell, 1986).
61. B. Dickson, "Northern Ireland and the European Convention" in Human Rights and the European Convention (London: Sweet and Maxwell, 1997). Two more recent cases originating from the North are Averill v UK (2000) BHRC 430 and Magee v UK (2000) BHRC 646.
62. There are arguments for the remaining paramilitary threats to be dealt with by ordinary legislation.
63. Terrorism Act 2000.
64. See L. Moore and M. O'Rawe, "A New Beginning for Policing in Northern Ireland?"
65. and J. Jackson, "Shaping the Future of Criminal Justice" in Human Rights, Equality and Democratic Renewal in Northern Ireland, ed. C. Harvey (Oxford: Hart Publishing, 2001).
66. Mageean and O'Brien, supra n. 25, at 1531.
67. NIHRC document The Bill of Rights Introduction, September 2000 at 3. One pamphlet focused on the issue of implementation of an eventual Bill of Rights.
68. Supra n. 61.
69. Most political parties in the North have done so but there have been those who have refused to meet the body.
70. For a comprehensive discussion of the role of the voluntary sector in Northern Ireland see J. Morison, "Democracy, Governance and Governmentality: the Role of the Voluntary Sector in the Democratic Renewal of Northern Ireland" in Human Rights, Equality and Democratic Renewal in Northern Ireland ed. C, Harvey (Oxford: OUP, 2001).
71. Economic and Social Rights Working Group Report January 2001, pp. 1-2.
72. For example a non-discrimination clause.
73. Report to NIHRC from the Equality Working Group January 2001.
74. Language Rights Working Group advice to the NIHRC, January 2001.
75. Report of the Culture and Identity Working Group, January 2001.
76. Report of the Education Working Group January 2001, at 6.
77. The Fair Employment and Treatment (NI) Order 1998 does not apply to school admissions.
78. Report of the Children and Young People's Working Group, January 2001 at 2.
79. Criminal Justice Working Group Report, January 2001 at 1.
80. Supra n. 73 at 2.
81. Supra n. 3, pp. 3-7.
82. Supra n. 73, pp. 7-11.
83. Supra n. 73, pp. 11-14.
84. Victims' Rights Working Group Report at 1.
85. Implementation Working Group Report, January 2001.
86. Making a Bill of Rights for Northern Ireland: A Consultation by the NIHRC.
87. Supra n. 80, pp. 17-23.