An analysis of

"Making a Bill of Rights for Northern Ireland"

(As proposed by the Northern Ireland Human Rights Commission NIHRC)

by the

Ulster Human Rights Watch (UHRW)

The Northern Ireland Human Rights Commission (NIHRC) has proposed a Bill of Rights for Northern Ireland which is to be found in the Consultation document published in September 2001 entitled "Making a Bill of Rights for Northern Ireland".

The present analysis has undertaken to examine how the NIHRC exceeded the mandate given by the Secretary of State on the basis of Article 69(7) of the Northern Ireland Act 1998 to prepare the proposed Bill of Rights (Section 1) and the threat the clauses of this suggested Bill of Rights represents for the future of the people of Northern Ireland (Section 2).

Section 1: The Northern Ireland Human Rights Commission has exceeded its mandate

The mandate given to the NIHRC is defined on the basis of section 69 (7) of the Northern Ireland Act 1998 and paragraph 4 of the section headed "Rights, Safeguards and Equality of Opportunity" of the Belfast Agreement of 10 April 1998.

Article 69(7) reads: "The Secretary of State shall request the Commission to provide advice of the kind referred to in paragraph 4 of the Human Rights section of the Belfast Agreement".

The Belfast Agreement indicates in paragraph 4 of the above section that the NIHRC would have "to consult and advise on the scope for defining, in Westminster legislation, rights supplementary to those in the ECHR to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland."

As a result the NIHRC has been confronted in the first place with the difficulty of defining what was meant by "reflect the particular circumstances of Northern Ireland".

The NIHRC went on to set out two different approaches to interpreting this particular clause. A wide interpretation of the clause would entitle the NIHRC to include any right "which emerges from, or can be justified in terms of, the particular circumstances of Northern Ireland" (page 13 of the Consultation document). A narrow interpretation of the clause would allow the NIHRC to deal only with the rights which very obviously reflect the particular circumstances of Northern Ireland.

It appears that both the British and Irish Governments were supportive of the narrow approach. The British Government has indicated to the Commission 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 are necessary in the particular circumstances of Northern Ireland" (page 14 of the Consultation document, letter from the British Government, 1999). The Irish Government has indicated that it will "assess and evaluate [the Bill of Rights] in terms of its compliance with the terms of the Good Friday Agreement, in particular those sections relating to the Bill of Rights" (page 14 of the Consultation document, letter from the Irish Government, 1999). The statement from the Irish Government makes very clear that interdependence between the Belfast Agreement and the Bill of Rights must exist.

The approach chosen by the NIHRC has been to apply the widest possible interpretation of the clause "Particular circumstances of Northern Ireland". As the Commission puts it: "It wishes to recommend provisions for the most extensive Bill of Rights which is consistent with the terms of paragraph 4 of the [Belfast] Agreement" (page 14 of the Consultation document).

In order to oppose those who would support a narrow interpretation of its mandate, the NIHRC argues that it can rely on what it unilaterally calls its "general power" supposedly granted in Section 69 (3)(b) of the Northern Ireland Act 1998.

Section 69(3) reads: "The Commission shall advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to protect human rights:

1. As soon as reasonably after receipt of a general or specific request for advice; and
2. On such other occasions as the Commission thinks appropriate".

The NIHRC received a request from the Secretary of State, Dr Marjorie Mowlam, in March 1999, to consult and advise her on "the scope for defining rights supplementary to those in the European Convention on Human Rights" (emphasis added). Rather than limit its consultation to the mandate given above, the Commission decided "to advise on the requisite rights themselves" (page 14 Consultation documents, emphasis added).

Indisputably, the NIHRC has extended the mandate it received from the Secretary of State. The Commission was only requested to give advice on the basis of Section 69(7) of the Human Rights Act 1998 in accordance with paragraph 4 of the Section "Rights, Safeguards and Equality of Opportunity" of the Belfast Agreement. It was not required to use Section 69(3)(b), which only applies "on other occasions" to give advice on matters which are outside the scope of the mandate.

Therefore the NIHRC has used a request from the Secretary of State to transform significantly the initial mandate it was given. The NIHRC should have dealt with the Secretary of State’s request by providing an answer to "the scope for defining" the requisite rights, which was all it was allowed to do on the grounds of Section 69 (7).

What is most surprising, however, is that having used the Secretary of State’s request in order to recommend provisions for a most extensive Bill of Rights, the NIHRC in the meantime has decided to conform to the narrow interpretation of the mandate given by the Irish Government. Indeed the Consultation document satisfies the requirement of the Irish Government since the Bill of Rights complies perfectly with the Belfast Agreement. In doing so, the NIHRC has completely disregarded the advice given by the British Government in its letter of 1999.

Conclusion:

The NIHRC has gone over and beyond the mandate given by the Secretary of State on the grounds of section 69 (7) of the Northern Ireland Act 1998, and has prepared a Bill of Rights which suits the Irish Government to the prejudice of the British Government and the United Kingdom.

Section 2: The Northern Ireland Human Rights Commission proposed Bill of Rights : a threat for the future of the people of Northern Ireland

The Northern Ireland Human Rights Commission has added numerous clauses to the Articles of the European Convention of Human Rights to make a Bill of Rights for Northern Ireland. The clauses suggested which pose a serious threat for the people of Northern Ireland will be examined under the following headings: Terrorism and democracy (I); Communities and individuals (II); Women and children (III); Education and language (IV); Economy and environment (V); Interpretation, limitations and enforcement (VI); Entrenchment and amendment (VII).

Terrorism and democracy

The Bill of Rights prepared by the NIHRC favours terrorists and terrorist organisations. The purpose of the proposed Bill of Rights, which is reflected in many of its provisions, is to promote the aims of a political arrangement, made between the political wings of fully-armed terrorist organisations and democratic parties, included in the Belfast Agreement. The clauses introduced by the NIHRC in addition to those of the European Convention of Human Rights (ECHR) will provide new means for terrorists and their organisations to achieve their goals.

The compromise between terrorism and democracy to the benefit of terrorists will be first considered (1), followed by a presentation of the particular provisions of the Bill of Rights which will be useful to terrorists (2).

1. The compromise between terrorism and democracy to the benefit of terrorists

The Preamble (page 17 of the Consultation document) is an essential part of the proposed Bill of Rights. It establishes the foundations on which the NIHRC has built the Bill of Rights.

Sub-clause 4 is the most important clause of the Preamble, as it indicates that the Bill of Rights has been built on the "principles enshrined in the Belfast (Good Friday) Agreement". The so-called "principles" are in fact different "commitments" made by the participants in the multi-party negotiations which are enumerated in the "Declaration of Support" of the Belfast Agreement (page 1).

Although a commitment can and ought to be based on a principle, it is not in itself a principle. A commitment is an engagement to fulfil an obligation. It is at best the implementation of a principle. Hence the commitments on which the NIHRC have built the proposed Bill of Rights are not principles but mere declarations agreed between terrorist-related political parties and democratic political parties.

Conclusion:

The whole of the Bill of Rights is based on a compromise between terrorism and democracy which can only turn out to the prejudice of democracy. Because of its very foundations, the proposed Bill of Rights, if adopted and implemented, will inevitably further destroy democracy in Northern Ireland.

1. Particular provisions useful to terrorists

The NIHRC has introduced in the proposed Bill of Rights several provisions which will be useful to terrorists and which are found under the headings of Participation in government (2.1), Equality and Non-discrimination (2.2), Right to Life (2.3), Right to Liberty and Security (2.4), Right to a Fair Trial (2.5), Rights of the Victim (2.6), Freedom of Assembly and Association (2.7), Language Rights (2.8) and Emergencies (2.9).

1. Unrestricted participation of terrorists in the governance of Northern Ireland.

The NIHRC has decided to confirm, in the Bill of Rights, the access given by the Belfast Agreement 1998 to terrorist-related politicians in the Executive of Northern Ireland.

In clause 2(b)(1) (page 21 of the Consultation document), elected representatives are given "fair, full and effective participation in the governance of Northern Ireland". This strengthens the system introduced in the Belfast Agreement, which gave terrorist-related politicians the right to be part of the Executive once they had been elected to the Assembly.

The vocation of a Bill of Rights is to lay down principles which will not be removed through a change of constitution or legislation. The Bill of Rights is to become the norm of superior value which will be binding over the constitution of Northern Ireland. Once the principle giving unrestricted access to the governance of Northern Ireland is recognised in the Bill of Rights, the constitution will always have to comply with it, whatever modifications may be made to it later on.

Conclusion:

Clause 2(b)(1) will help terrorists to further their political aims, maintaining their hold on the governance of Northern Ireland.

 

2. Equality and non-discrimination to the benefit of terrorists

The "non-discrimination clause" (4.4) (page 31 of the Consultation document) creates a right for everyone "to be protected against any direct or indirect discrimination whatsoever on any ground (or combination of grounds) such as … possession of a criminal conviction … status as a victim or any other status".

Instead of providing a guarantee against discrimination for all the rights set forth in the Bill of Rights, the NIHRC has introduced a general right not to be discriminated against, which applies to any rights, even those not mentioned in the Bill.

It is undeniable that the scope of this clause is extremely broad, especially since it mentions "direct or indirect discrimination". The "possession of a criminal conviction" is considered as grounds on which a person should not be discriminated against. It is clear that on the basis of this clause any terrorist could claim that he is discriminated against if he is barred, because of a previous conviction, from having access to any position he covets. Any form of restriction or control put upon terrorists would become extremely difficult to enforce.

Conclusion:

Terrorists will be given the right on the ground of clause 4(4) not to be discriminated against, i.e. restricted or controlled in spite of their terrorist background and/or active membership with a terrorist organisation.

2.3 The right to life in favour of terrorists

The NIHRC has introduced new provisions in clause 6(a)(3) (page 41 of the Consultation document) to narrow down the exceptions provided in Article 2 of the European Convention, although the fundamental right to life has already been strictly interpreted by the European Court of Human Rights.

The clause 6(a)(3) of the proposed Bill of Rights will have the following consequences:

• Instead of being authorised to deprive someone of his life "in defence of any person from unlawful violence" (Article 2(a) ECHR), a law-enforcement official, for example a police officer, will only be allowed to do so under clause 6(a)(3)(a), when acting in self-defence or defence of others, "when there is imminent threat of death or serious injury", but only "when less extreme means are insufficient to achieve these objectives". Police officers will therefore be guilty of depriving someone of his life in defence of any person from unlawful violence if it can be proven afterwards that there was no imminent threat of death of serious injury.
• Deprivation of life, which could occur "when absolutely necessary" in action "lawfully taken for the purpose of quelling a riot or insurrection" (Article 2(c) ECHR) will only be allowed under clause 6(a)(3)(b) "to prevent the perpetration of a particularly serious crime involving grave threat to life", but only "when less extreme means are insufficient to achieve these objectives". Police officers will be guilty of depriving someone of his life when acting in order to quell a riot or insurrection if it cannot be proven that the law-breakers were about to commit a particularly serious crime involving grave threat to life.
• Deprivation of life, which could result "from the use of force which is no more than absolutely necessary" in order to effect a lawful arrest under Article 2(b) of the ECHR, will only be allowed under clause 6(a)(3)(c) when the person is about to commit "a particularly serious crime involving grave threat to life" and who is "resisting the arrest" but only "when less extreme means are insufficient to achieve these objectives". It will become unlawful for a law-enforcement official to deprive a person of his life when he/she is lawfully detained and attempts to escape, contrary to what is presently provided in the European Convention.

Conclusion:

The work of the police to control and repress terrorist activity will be made even more difficult than it is at the present if not impossible under clause 6 (a)(3). Terrorist organisations will highly benefit from these provisions to organise civil unrest, attacks of all kinds especially against the police force and the Army, escapes from prison, etc.

4. Right to liberty and security to the benefit of terrorists

The NIHRC introduces new rights for the suspect, whatever crime he may have committed, during the pre-trial procedure.

Everyone, even a suspected terrorist who is detained, will be given unrestricted rights "to inform a relative or friend without unreasonable delay" (7(a)(9)) (page 47 of the Consultation document).

While under arrest and questioned, everyone "has the right to remain silent and to have no adverse inferences drawn at a later stage if this right is exercised" (7(a)(14)) (page 48 of the Consultation document). This clause will be of great interest to terrorists since the NIHRC acknowledges that it would call into question provisions of the Terrorism Act 2000, which "allows inferences to be drawn from a person’s failure to disclose membership of, or participation in activities of, certain proscribed organisations" (page 48 of the Consultation document).

Conclusion:

Clause 7(a)(9) and especially clause 7(a)(14) will be very useful to terrorists while under arrest and questioned.

 

5. Right to a fair trial to the benefit of terrorists

The NIHRC introduces new rights for the person charged, during the trial.

The person "charged with a criminal offence has the right to remain silent at the trial and to have no adverse inferences drawn if this right is exercised" (Clause 7(b)(5), page 50 of the Consultation document). This clause extends the right to silence beyond the limits set by the European Convention. The NIHRC acknowledges that clause 7(b)(5) will "throw into doubt the current law as represented by Criminal Evidence (N.I.) Order 1988" (page 50 of the Consultation document). As a result, terrorists will be able to make the best of their silence.

According to clause 7(b)(6) (page 51 of the Consultation document), a person charged with a serious criminal offence will have the right to choose to be judged either by a judge sitting with a jury, or by a judge sitting without a jury. The NIHRC believes that "the improved political and legal circumstances of Northern Ireland now negate the justification for non-jury trials". Contrary to what the Commission suggests, the reality is that statistics show a degradation of the situation, as figures of crime and offences are on the increase. Hence terrorists will be given the right to choose the way they will be judged.

A person charged with a criminal offence will have the right to require the court to exclude any evidence if it has been obtained as a result of the violation of any right mentioned in the proposed Bill of Rights for Northern Ireland (7(b)(7)) (page 51 of the Consultation document). This clause will provide new grounds for suspected terrorists to contest evidence in court in order to escape conviction.

The NIHRC has also introduced new clauses to the benefit of persons convicted. Prisoners have the right to be treated "with the objective of enabling him/her to re-enter society safely and effectively" (7(b)(15)) (page 53 of the Consultation document). This clause creates an obligation for the state "to take effective measures to ensure that favourable conditions are created for the reintegration of ex-prisoners into society".

Conclusion:

Clauses 7(b)(5), 7(b)(6), 7(b)(7) and 7(b)(15) will undoubtedly be to the benefit of convicted terrorists who will be assured of being well-treated by the State, not only during their trial and during their time in jail, but also once they are released.

 

 

6. Terrorists classified as victims

The NIHRC has introduced a distinction between two categories of victims, based on the notion of "conflict" (page 55 to 58 of the Consultation document).

The use of a ‘conflict’ terminology to describe the result of a prolonged campaign of terrorism waged against the people of Northern Ireland over the past 33 years is preposterous. This terminology is very convenient for terrorists who wish to give the impression that there is some kind of civil war going on in Northern Ireland. This enables them to cover up the very nature of their activities while justifying all the atrocities (murders, abductions, torture, maiming, bombing, etc.) which they have been carrying out and are responsible for.

The word ‘conflict’ used in paragraph 5 of the Preamble (page 18 of the Consultation document) as well as in article 8(a)(1) (page 56 of the Consultation document), is to the benefit of terrorists. Convicted terrorists will be able to define themselves as "victims of the conflict" on an equal footing with those, or the families of those, they have killed, maimed or attacked, i.e. the genuine victims. They will be entitled to "the highest possible level of social care and support in accordance with their needs, particularly in respect of personal security and access to health care, income support, employment, training and education, and for those purposes to be protected from any unfair or discriminatory treatment" (8(a)(2)). Terrorists will enjoy the best treatment possible on a par with their own victims.

Concerning past atrocities, according to the interpretation of clause 8(a)(1), terrorists will be protected against any reopening of cases. There will be no way of prosecuting terrorists in cases which have never been settled over the past 33 years. Genuine victims will never see justice done and will instead be offered participation in some kind of truth and reconciliation commission as suggested by the Commission (page 56 of the Consultation document).

Conclusion:

Clauses 8(a)(1) and 8(a)(2) will in practice have the effect of an amnesty for terrorists, for whatever crimes or offences they have committed in the past.

 

7. Right to freedom of assembly to help terrorists extend their control over part of the territory of Northern Ireland

Despite the fact that the right to peaceful assembly is a major issue in Northern Ireland due to the numerous parades which take place all over the province each year, the NIHRC has not introduced any new clause in addition to Article 11 of the European Convention (page 78 of the Consultation document). Orangemen will continue to be barred from walking the Queen’s highway by the Parade’s Commission, itself bowing under pressure from terrorist-led residents’ groups.

The new provisions introduced in clause 4(8) (page 33 of the Consultation document), combined with clause 4(4) (page 31 of the Consultation document), will inevitably be used by terrorist-led residents’ groups. Clause 4(8) indicates that "laws, policies, programmes or activities aimed at achieving and sustaining full and effective equality…shall be required" in order to reduce "inequalities affecting group disadvantage on the grounds specified in clause 4(4)", one of these grounds being that of "residence". Terrorist-led residents’ groups will therefore have the right to request special measures to be implemented on the grounds of residence, in order to oppose parades.

Conclusion:

Laws, policies, programmes or activities will have to be implemented on the basis of clause 4(8) combined with clause 4(4) to the benefit of terrorist-led residents’ groups, which will help them to further their aims in opposing parades and extending their control over parts of the territory of Northern Ireland. This will result in aggravated civil unrest.

 

8. Language rights to further the terrorist agenda

The NIHRC did not acknowledge any official language for Northern Ireland in the proposed Bill of Rights.

Everyone will be given the right to communicate with any public body through an interpreter, translator or facilitator when this is necessary in order to access, in a language that the person understands, information or services which are essential for his/her life, health, security etc. (clause 13(2), page 82 of the Consultation document).

The right to use the Irish language, for which the NIHRC has already declared there is sufficient demand (page 83 of the Consultation document), is also provided, particularly in dealings with public bodies and to display local street and other place names (clause 13(5)).

Conclusion:

It is clear that clauses 13(2) and 13(5) are to the advantage of terrorist organisations and to the prejudice and expense of the majority of the people of Northern Ireland.

 

9. Emergency legislation restricted to the benefit of terrorism

The NIHRC has decided to add new provisions to those of Article 15 of the ECHR about derogations in times of emergency (pages 97 to 99 of the Consultation document).

It is very likely that in the future terrorist organisations may launch a new campaign of violence on a larger scale in Northern Ireland and/or in the rest of the United Kingdom. The NIHRC does not exclude this possibility (page 97 of the Consultation document).

Prior to any derogative legislation through the Bill of Rights for Northern Ireland, in order to ensure public safety, a state of emergency will have to be declared. Depending on whether or not powers have been devolved in this matter, the decision will be made by the "relevant legislative body", i.e. Westminster or the Northern Ireland Assembly. If powers are devolved to the Northern Ireland Assembly, the vote will be made on the basis of cross-community support for derogating legislation.

The following conditions will apply for a state of emergency to be declared:

• Firstly, a state of emergency could only be declared if "the lives of people in Northern Ireland are seriously threatened by war, invasion, general insurrection, natural disaster, or other public emergency" (clause 17(b)(2)(a)). The word ‘terrorism’ has been avoided.
• Secondly, a state of emergency will have to be "strictly required by the exigencies of the situation" (17(b)(2)(b)).

Unless the declaration of a state of emergency is extended, any legislation enacted would only be enforced for 21 days after the date of the declaration (clause 17(b)(3)). The extension will only be possible if the Northern Ireland Assembly votes a resolution to that effect, supported by a cross-community vote of at least 60 % of its members (clause 17(b)(4)).

Such provisions will render the adoption of emergency legislation extremely difficult if not impossible, since terrorist-related politicians will have to approve them. In any case, if they are approved the measures will only apply for a very limited period of time. Terrorist organisations will draw great benefit from these provisions to allow them to plan their strategy and carry out attacks on a larger scale.

Terrorist organisations will also be helped by the possibility given in clause 17(b)(5) to challenge, before any court in Northern Ireland, the validity of a declaration of a state of emergency, any extension of the declaration, and any legislation enacted or action taken in consequence of a declaration. It should also be noted that the Northern Ireland Assembly will be forbidden, according to clause 17(b)(6)(b) to derogate in any way from any clause prescribed in section 17.

Conclusion:

Clauses 17(b)(1) to (6) will be extremely useful for terrorist organisations to control Northern Ireland and hold to ransom the people of Northern Ireland.

Communities and individuals

The approach used by the NIHRC is based on a division of the people of Northern Ireland into at least two communities and an opposition between the individual and the State. The following aspects will be examined: the people of Northern Ireland divided into communities (1), the citizenship of another State officially recognised by the United Kingdom (2), the minorities given rights against the majority (3), the misconception of equality and non-discrimination (4), The criminal justice system undermined (5), the restricted freedom from torture, inhumane or degrading treatment or punishment (6), the right to freedom of thought, information, expression and association disregarded (7).

1. The people of Northern Ireland divided into communities

In the fifth sub-clause of the Preamble (page 18 of the Consultation document), the NIHRC indicates that the Bill of Rights will "guarantee the rights of both main communities and all other communities in Northern Ireland". The provision of this clause is based on paragraph 4 of the section of the Belfast Agreement headed "Rights, safeguards and equality of opportunity".

Rather than applying rights solely to individuals, the NIHRC has created rights to be applied to communities. The community of the people of Northern Ireland is to be divided into at least two main communities and as many others as may be identified. The two main communities will presumably be defined upon the basis of religious belief or political opinion and other criteria will have to be defined in order to identify other communities.

Conclusion:

This approach, consisting of dividing the people of Northern Ireland into communities, will result in institutionalising segregation among the people of Northern Ireland.

2. The citizenship of another State officially recognised by the United Kingdom

On the basis of Article 1 paragraph VI of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, signed after the adoption of the Belfast Agreement, the NIHRC has introduced clause 3(a)(1) (page 26 of the Consultation document). This clause prescribes that "individuals born in Northern Ireland have the right to identify themselves and be accepted as Irish or British citizens, or both, as they may so choose".

Clause 3(a)(1) is presented as the implementation in British law of the clause of the international agreement made between the United Kingdom and the Republic of Ireland. The purpose of the treaty was to reassure those who hold British citizenship that they will have the right to retain their citizenship if Northern Ireland falls under the sovereignty of the Republic of Ireland. Rather than providing reassurances for the British citizens, clause 3(a)(1) of the Bill of Rights has the opposite effect of acknowledging the right for individuals to be accepted by the British authorities on British soil as Irish if they so choose.

Conclusion:

Clause 3(a)(1) will inevitably enable extremists (i.e. terrorists) to strengthen their position in Northern Ireland and will facilitate the achievement of their goals.

3. The minority given rights against the majority

The NIHRC has chosen to replace the term "minority" with the term "community" (page 27 of the Consultation document). The explanation given by the Commission is that their aim is to reassure members of the Unionist majority that recognising the rights of the nationalist community does not imply any reduction of their own rights.

According to the NIHRC the term "community" refers essentially to "both main communities" mentioned in sub-clause 5 of the Preamble (page 18 of the Consultation document). The use of the word "community" is meant to give the minority of the people of Northern Ireland the same rights as the majority. It is an indirect means of discriminating against the majority of the people of Northern Ireland so as to prevent them from benefiting from the principle of majority rule which is recognised as the basic rule of democracy.

The people of Northern Ireland will be divided into two main communities, i.e. the nationalist and the unionist. Any other community will be of marginal influence. The majority will not be given the right to enjoy its culture, religion or language as the majority in any democratic country should. Their rights will be restricted in order to satisfy the claims of the minority.

Moreover, the government will have to "adopt effective and appropriate measures: to promote equality in all areas of economic, social, cultural and political life" (3(b)(5)) among the different communities (page 28 of the Consultation document). The positive obligation placed on the government to achieve equal treatment will give the minority of the community the means of reducing and limiting the rights of the majority.

The NIHRC suggests going even further:

• First, it is suggested that a provision be added in order to confirm the voting mechanism contained in the Belfast Agreement. Once the Bill of Rights will have been implemented, it will become almost impossible to modify the very peculiar voting system brought about by the Belfast Agreement.
• Secondly, it is also envisaged to introduce a right to parity of esteem (page 28 of the Consultation document) in contradiction with what the Commission has explained previously. On pages 25-26 of the Consultation document, the Commission says that it would be difficult to enforce a right to parity of esteem for both communities "as the interpretations and implications of what ‘parity of esteem’ means vary greatly". The NIHRC intends to justify its position by saying that substituting the term "community" for "minority" (mentioned in the Framework Convention for the Protection of National Minorities’ Languages) changes the impact of the provisions of the Belfast Agreement relating to parity of esteem. As a result, it would be possible to place the obligation to adopt effective and appropriate measures on the government so as to ensure "parity of esteem and just and equal treatment for the identity, ethos and aspirations of both communities" (3(b)(2)(b) (page 28 of the Consultation document). It is rather extraordinary that the NIHRC is endeavouring to substitute words in an international convention to create a new right in order to suit one section of the community i.e. the minority, to the prejudice of the majority of the people of Northern Ireland. The so-called right to parity of esteem is indeed meant to circumvent the majority rule to the benefit of a minority eager to achieve its goals.

Conclusion:

Clauses 3(a)(1), 3(b)(1 to 5) and 3(b)(2)(a and b) will have the result of perverting the majority rule to the exclusive benefit of the minority.

4. The misconception of equality and non-discrimination

Clauses 4(2) to 4(9) (pages 30 to 34 of the Consultation document) are made up of a mixture of different documents which apply to different areas of law. The NIHRC refers particularly to European Union Directives.

European Union Directives have been produced by the Council and the Commission of the European Union in order to establish a Common Market. When dealing with matters of discrimination, the European Court of Justice ensures that in the interpretation and application of the European Community Treaties the law is observed. The European Union Directives deal only with specific areas of law related to the economy.

Each international document must be understood and interpreted in relation to its purpose and within the context of the field of law which it is destined to regulate. One cannot simply cherry-pick here and there in documents of different scope whatever is found to be convenient in order to elaborate clauses for the Bill of Rights for Northern Ireland.

It is necessary to state that "everyone is equal before and under the law" as the NIHRC has done in clause 4(2) (page 30 of the Consultation document). This is a general statement in which the term "equal" is associated with the term "under the law". The law may therefore introduce conditions which as a result set limits to the principle of equality. There are grounds on which equality cannot and must not be granted in a democratic society. Limitations in these cases have to be enforced fairly and they are not discriminatory but necessary and just.

The NIHRC has adopted a non-discrimination clause (4(4)) (page 31 of the Consultation document) including all kinds of different grounds on which any person could argue that he/she is discriminated against. Instead of solely mentioning grounds on the basis of which discrimination is excluded, the NIHRC has introduced the possibility of arguing discrimination on 22 different grounds as well as on the grounds of "any other status". In fact, discrimination means ‘unfair treatment of a person’. Therefore someone who as a result of his own unlawful actions receives specific treatment, should not be allowed to argue that he is discriminated against.

Rather than recognising the right not to be discriminated against on specific grounds, the NIHRC has introduced a general right to be protected against discrimination on the basis of any status.

The basic principle of equality for all, before and under the law, ensures that protection against discrimination is guaranteed. A clause which forbids discrimination on unlawful grounds, but not on any grounds, is what is needed. In clause 4(4) the NIHRC has done the opposite, since it declares that unlawful discrimination can be based on grounds such as possession of a criminal conviction.

The NIHRC refers to "direct" or "indirect discrimination" (4(5) and 4(6)) (page 32 of the Consultation document) which are concepts used by the European Court of Justice to interpret the European Community Treaties. These concepts should not be taken out of a legal system and enforced in another without due consideration of the legal implications.

The Commission classifies harassment and bullying as "a form of discrimination" (4(7)) (page 33 of the Consultation document). Harassment and bullying are in fact anti-social behaviour, and could be dealt with in subordinate legislation.

The positive action clause (4(8)) (page 33 of the Consultation document) will give the possibility, particularly to groups, to claim new "laws, policies, programmes or activities", on the grounds of alleged discrimination, in view of "achieving and sustaining full and effective equality", supposedly to reduce inequality.

The exception clause 4(9) (page 34 of the Consultation document) is taken from the European Court of Justice case law in its interpretation and application of the Treaties of the European Communities. Once again, the NIHRC has tried to extend the scope of application of the system elaborated by the European Court of Justice to matters which it was not designed to deal with.

Conclusion:

Clauses 4(4) to 4(9) are misconceived and create a system which will open the door to all forms of abuse on the grounds of alleged discrimination.

5. The criminal justice system undermined

The reasons given by the NIHRC to add new provisions to those already embedded in Articles 5 and 6 of the European Convention, do not appear convincing (page 44 of the Consultation document).

There is no direct link between the number of people killed since 1969 and the protection of the right to security of the person under Article 5 as the NIHRC sustains. It is understandable that over an extended period of violence, many people were arrested. If only 25-30 % of the people arrested, as suggested by the Commission, were charged, it proves that tight rules were enforced which imposed definite criteria for a person to be charged.

Due to the particular circumstances which the authorities were faced with in Northern Ireland as a result of terrorist activity, emergency laws had to be enforced.

For the same reasons certain courts had to be set up to deal with cases of terrorism according to particular rules. This is clearly understandable. As long as fully-armed terrorist organisations continue to pose a threat to democracy and to the law-abiding people of Northern Ireland as a whole, special rules ought to stay in place.

The NIHRC has introduced numerous other clauses to be added to the right to liberty and security (5.1) and the right to a fair trial (5.2), already protected under the European Convention.

 

1. Concerning the right to liberty and security:

Some clauses could be added to the European Convention (5.1.1) but others would be better dealt with in subordinate legislation (5.1.2).

5.1.1 Clauses which could be added to the ECHR:

• Clause 7(a)(6) forbids the detention of anyone solely on the grounds mentioned in Article 5(1)(e) of the European Convention. This is already generally accepted and will not modify the present situation.
• Clause 7(a)(8) would guarantee the right for a person arrested to consult with a solicitor. This is a necessary right which has already been recognised by the European Court of Human Rights.
• Clause 7(a)(13) would give the person arrested who needs it, the right to have a competent interpreter during questioning by police officers. This right runs parallel to the right given in Article 6(3)(e) of the European Convention to the person charged to have an interpreter.

5.1.2 Clauses which do not need to be part of the Bill of Rights

• Clause 7(a)(7). The right not to be subjected to unlawful search and seizure is already protected under the European Convention. In order to justify this clause the NIHRC refers to "anecdotal evidence" which allegedly "suggests that search and seizure was used to harass certain sections of the community" (page 46 of the Consultation document). Any clause of a Bill of Rights cannot be based on anecdotes. To accuse police officers of using their powers to harass sections of the community on a large scale is a serious charge which must be backed by reliable evidence. Can the NIHRC prove what they say?
• Clauses 7(a)(9) and (10): the right of the accused to inform a relative or friend, to be visited while in custody and to communicate with the outside world, can be dealt with more appropriately in subordinate legislation. The NIHRC justifies its position by referring to Principle 19 of the United Nations’ Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment, and the South African Bill of Rights. However, the Principle of the UN’s document sets principles which are to be implemented within the legislation of each member state and do not need to be part of the Bill of Rights. The South African Bill is not the best document to refer to.
• Clause 7 (a)(11): the right to have proper conditions of detention in police custody should be dealt with in subordinate legislation.
• Clause 7 (a)(12): the right to have a solicitor during questioning and to have questioning audio-recorded and/or video-recorded should be dealt with within secondary legislation.
• Clause 7 (a)(14): the right to remain silent and not to have adverse inferences drawn at a later stage if this right is exercised. The NIHRC acknowledges that this clause would call into question provisions of the Terrorism Act 2000 "which currently allows inferences to be drawn from a person’s failure to disclose membership of, or participation in activities of, certain proscribed organisations". Clearly, this provision would be to the benefit of terrorists (see supra page 5).
• Clause 7 (a)(15): the reduction of duration of police custody to 24 hours in all cases. An extension could be granted by court order, only for exceptional reasons. This matter should be left to subordinate legislation. There are different cases and different circumstances which impose that the duration be longer than 24 hours. This clause would be to the benefit of terrorists, who would have to be either charged or released within 24 hours, whatever the seriousness of the crime committed.
• Clause 7(a)(16): the NIHRC introduces a right for the person charged to be released unless the prosecution can produce admissible evidence to show that there is sufficient reason to continue detention. The Commission’s view, expressed in its comment, is that detention should be a last resort, and used only when release of the accused would jeopardise public safety. This can be dealt with in subordinate legislation.
• Clause 7(a)(17): the right for the person arrested to be informed of his/her rights is based on a judgement rendered by the Supreme Court of the United States in 1966.

5.2 Concerning the right to a fair trial

5.2.1 Clauses which do not need to be part of a Bill of Rights:

• Clause 7(b)(4): this clause limits the time a person could be detained pending trial, i.e. 110 days for an indictable offence and 40 days for a summary offence. This is taken from Scottish legislation. The NIHRC "sees no good reason" why these rules should not also "work satisfactorily in Northern Ireland" (page 50 of the Consultation document). Is the situation in Northern Ireland to be compared with that in Scotland? The explanation given by the NIHRC is, to say the least, superficial.
• Clause 7(b)(5): the right for a person charged to remain silent at the trial and to have no adverse inferences drawn from his silence is affirmed. This goes beyond the present jurisprudence of the Court of Human Rights. The NIHRC admits that it would throw into doubt the current law as represented by the Criminal Evidence (N.I.) Order 1988. This clause would benefit terrorists (see supra page 6).
• Clause 7(b)(6): this clause gives the person charged with a serious criminal offence the right to be tried by a jury unless he or she waives this right. The Commission justifies the imposition of this right because the political and legal circumstances have changed and "now negate the justification for non-jury trials" (page 51 of the Consultation document). This is a serious matter which should be left in any case to subordinate legislation. Circumstances may change for the worse and therefore the requirements may be different in the future. It would therefore be highly irresponsible to prevent flexibility in the law on this very important issue.
• Clause 7(b)(9), (10) and (11): these clauses refer to rights concerning the protection, assistance and support of witnesses, the duties of Government towards lawyers and the duties of judges and other court officials. These matters, based on the United Nations’ Basic Principles could be better dealt with in subordinate legislation.
• Clause 7(b)(12), (13) and (14): these clauses deal with the sentence given to a convicted person, the treatment of a prisoner and in particular the right for prisoners to retain "the rights conferred by the Bill of Rights for Northern Ireland" (page 52 of the Consultation document). These clauses are extracted from the UN’s Standard Minimum Rules for Non-Custodial Measures, and should be part of subordinate legislation. Clause 7(b)(13) would help elected terrorist prisoners to gain access to the Executive of Northern Ireland. In answer to a question from the Ulster Human Rights Watch, asking if under the present Bill of Rights elected terrorists would have access to the Executive of Northern Ireland, the NIHRC answered that "while in prison such a person would presumably not have such access". The NIHRC therefore confirms that elected terrorists while in jail may have access to the Executive of Northern Ireland and they may well argue their right to do so on the grounds of clause 7(b)(14).
• Clause 7(b)(15): this clause makes it the Government’s duty to ensure that favourable conditions are created for the reintegration of ex-prisoners into society. Once again, this clause, taken from the United Nations’ Basic Principles document will particularly help terrorists and should not be part of a Bill of Rights.

5.2.2 Clauses which should not be introduced into the Bill of Rights as they stand:

• Clause 7(b)(7): the right is given to anyone charged with a criminal offence to have any evidence obtained as a result of the violation of any right in the Bill of Rights for Northern Ireland, excluded from consideration by the court. This clause is taken from two United Nations documents and the South African Constitution. However, Article 35.5 of the South African Bill of Rights limits the scope of this right, which reads: "Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice". Only if the admission of the evidence renders the trial unfair or otherwise detrimental to the administration of justice could the evidence be excluded. But clause 7(b)(7) does not place any restriction on that right, which could lead to all kind of abuses.
• Clause 7(b)(8): this clause deals with the right to appeal. It is taken from Article 2.1 of Protocol 7 of the European Convention which has not yet been ratified by the UK Government. The NIHRC has left out the second paragraph of Article 2 of Protocol 7, which mentions exceptions regarding offences of a minor character. Since Protocol 7 has not yet been ratified by the UK, why does the NIHRC want to introduce it through the back door?

Conclusion:

The criminal legal system will be profoundly undermined by the set of clauses of section 7 to the benefit of perpetrators and to the prejudice of genuine victims.

6. The restricted freedom from torture, inhumane or degrading treatment or punishment

Surprisingly the NIHRC has not made any comment about the fundamental right not to be tortured and not to be submitted to inhumane or degrading treatment, mentioned in Article 3 of the ECHR (page 42 of the Consultation document).

Torture, inhumane and degrading treatment or punishment have been carried out on a regular basis by terrorist groups and organisations over the last thirty-three years to this very day. If the State and in particular law enforcement officials are forbidden under Article 3 of the ECHR to use torture, inhumane or degrading treatment or punishment, why should private organisations be allowed to do so over such an extensive period of time and why should they be allowed to continue to do so now?

Conclusion:

The NIHRC has overlooked this problem which must be addressed in order to eradicate from society practices which are abhorrent and widely condemned.

7. The right to freedom of thought, expression, information and association disregarded

The NIHRC has made very brief comments under Articles 9, 10 and 11 of the ECHR (page 77 and 78 of the Consultation document).

Article 9 of the ECHR protects the right to freedom of thought, conscience and religion. Article 10 protects the right to freedom of expression. And Article 11 protects the right to freedom of peaceful assembly and to freedom of association.

Because of those who oppose parades and initiate trouble, there is real matter for concern and a need to solve this problem to the benefit of all the people of Northern Ireland. Violent opposition to peaceful assembly can never be justified on any grounds. Instead of offering a means of resolving this issue, the NIHRC has simply referred to a report published in May 2001, which does not provide a solution.

Conclusion:

The right to freedom of peaceful assembly, which includes the right to organise peaceful demonstrations and therefore parades, will not be effectively guaranteed by the proposed Bill of Rights.

Women and children

Although women need more protection than men, women should not be given quota-style treatment (1), the right to family and private life should not be extended to homosexuals (2), and the guarantee of rights for children should not make them subjects of the State (3) as the NIHRC proposes.

1. The "quota" style treatment of women and girls

Although women have special needs they deserve a better treatment than that given them by the NIHRC concerning their right to equality (1.1), the right to equal access to sexual and reproductive health (1.2), their right to freedom of violence (1.3) and their right to equal representation in public life (1.4).

1. Right to equality

The NIHRC has introduced clause 4(3) (page 30 and 36 of the Consultation document) concerning rights to equality which is made from parts of provisions taken from the Canadian Charter of Rights and Freedoms and the European Union Charter of Fundamental Rights as well as the European Court of Justice jurisprudence. Reference to these international documents and to the European Court of Justice does not provide convincing support for such a clause.

Article 15 (1) of the Canadian Charter of Rights and Freedoms does not make reference to the rights of women as such. Equality about gender is mentioned in this article as one of the grounds on which every individual has the right to "equal protection and benefit of the law without discrimination" on any ground.

Article 23 of the European Union Charter of Fundamental Rights states that: "Equality between men and women must be ensured in all areas, including employment, work and pay". The approach used in this document is inclusive. Men and women are put on an equal footing. No preference is given to men or women. According to the second part of Article 23, measures can be adopted to provide for "specific advantages in favour of the under-represented one." This clause is also inclusive and can be used to the benefit of women as well as men. On the contrary the Commission’s approach is solely orientated towards "women and girls".

The NIHRC also refers to the jurisprudence of the European Court of Justice, which deals with the application of the treaties of the European communities and is limited to dealing with matters related to employment, work and pay. This jurisprudence of the European Court of Justice cannot be extended to other fields of law without due consideration for the implications in practice.

The idea put forward by the NIHRC is that a positive obligation must be put on the State to ensure equality between men and women.

Conclusion:

The two sentences of clause 4(3): the first extracted from the first sentence of Article 23 of the European Charter and the second from the UN’s Convention on the Elimination of Discrimination against Women, makes an unhappy mixture which does not fit well into a Bill of Rights whose purpose is to protect equally the rights of all people.

 

 

 

 

2. The right to equal and free access to sexual and reproductive health care

The NIHRC has avoided dealing with the matter of abortion on the basis of principle. The question of the right to abortion or the prohibition of abortion has been side stepped and the Commission has instead increased the possibility for women to make their own choices about abortion.

Under clause 14(c)(5) (page 37 and 89 of the Consultation document) and under the guise of "free access to sexual and reproductive health care" a woman would in fact be given the right to choose abortion on her own. An almost free right to abortion will therefore be given to every woman. The NIHRC does not say what rights will be left to husbands and fathers if any to express their opinion concerning the abortion of their child.

The Commission extends information and education related to sexual and reproductive matters to everyone at all levels. Information and education on these matters ought not to be left open to anybody, especially not to children at all levels of education. Parents should have a say and be entitled to decide what should be said and when to their children on this subject.

Conclusion:

Under the pretence of safeguarding the freedom for women to make their own choices, the NIHRC has given them, in clause 14(c)(5), the right to abortion as well as free access for young people to information on sexual matters.

 

3. The right to freedom from violence

The right provided in clause 8(c)(1) (page 37 and 58 of the Consultation document) applies solely to women and girls. The NIHRC takes into account one side of the problem only. Domestic violence against men and boys also exists, but has been sidelined by the Commission.

Conclusion:

Clause 8(c)(1) is inadequate since the problem of domestic violence has not been apprehended in its entirety.

4. The right to equal participation in public life

Clause 2(b)(2) puts an obligation on the State to promote the right of women to fair, full and equal participation in public life (page 21 and 39 of the Consultation document). Rather than promoting the right of men and women to be equally represented in public life, the NIHRC deals only with the participation of women in public life. The criteria used to put men and women on an equal footing as far as access to public life is concerned should be the same.

Conclusion:

Clause 2(b)(2) may well lead to measures for forcing women’s representation in public life, which will in fact undermine the status of women.

1. Rights to family and private life extended to homosexuals

The NIHRC has proposed to include clause 9(b)(2) (page 60 of the Consultation document) in addition to Article 12 of the European Convention in order to grant effective recognition to relationships other than marriage and to guarantee equality of rights between "persons living together in marriage and long-term domestic partnerships".

The Commission indicates in its comments that they recognise that clause 9(b)(2) would "amongst other things, legitimise partnerships between gay men or lesbian women" (page 60 of the Consultation document).

The Commission has based its new clause on Article 5 of Protocol 7 to the European Convention which has not yet been ratified by the UK. This article relates to the equality of rights and responsibilities of private law character between spouses, husband and wife, concerning their children as to marriage, during marriage and in the event of its dissolution. It does not apply in any way at all to homosexual relationships of any kind. Since Protocol 7 has not yet been ratified by the United Kingdom the Commission should not attempt to introduce it through the back door.

Conclusion:

Regardless of the scope of application of Article 5 of Protocol 7, the Commission extends its application in clause 9(b)(2) to partnership between gay men or lesbian women. The NIHRC encourages immoral behaviours, partnerships outside marriage and undermines the institution of marriage even further.

3. Children made subjects of the State

The NIHRC has based the clauses referring to the rights of children on the Convention on the Rights of the Child adopted by the United Nations General Assembly on 20 November 1989.

This Convention, although widely ratified, can lead to an interpretation of the rights of the child which has the potential of actually destroying the family unit. The UN Convention tends to treat the child separately from his/her parents and family. In doing so, the child can be made a subject of the State which grants him/her rights to be used independently from the wishes and guidance of his/her parents and family. Parent’s authority over and duty to their children is, as a result, seriously undermined. Through rights given to children, the State grants itself the right to interfere with children in their family environment, at school and in any private or public organisation. In doing so the State replaces the parents in their responsibilities towards children. The State will be able to decide what is best for children regardless of the opinion and will of parents.

The NIHRC goes far beyond the UN Convention in the clauses suggested as regards the best interests of children (3.1), participation rights (3.2), family rights (3.3), protection rights (3.4), young offenders (3.5), access to information, material and guidance on sexuality (3.6), education rights (3.7), and information about human rights (3.8).

3.1 The State is to define what is in the best interests of children

In its general provisions (clause 10 (a)(1), (2) and (3) (page 64 of the Consultation document), the NIHRC does not make the least mention of parents nor of the child’s family. In clause 10(a)(1) the child is defined as a "human being below the age of 18 years". Clause 10(a)(2) makes "the best interests of the child" the "paramount consideration" to be taken into account in all action concerning him undertaken by any public or private institution as well as individuals. This clause is very important since all the rights of children in the Bill of Rights are to be interpreted in relation to "the best interests of the child".

The "best interests of the child" however require a definition. Who will decide what the best interests of the child are and how criteria will be determined in cases of conflicting views between two different bodies or between a body and an individual?

Conclusion:

Clause 10 (a)(1), (2) and (3) has the potential to undermine the family unit, since the State will be in a position to determine what is best for the child.

3.2 Participation rights: a means for the State to control children

Children are given the right in clause 10(b)(1) (page 65 of the Consultation document) to give their views freely on all matters concerning them, without any form of control by their parents. The State is made the sole interlocutor of the children who will consider their views and give them due weigh in accordance with their age and maturity. But nothing is said about what criteria the State will use in order to consider children’s views.

Clause 10(b)(2) provides the right for every child to take part in legal proceedings affecting him/her through an independent representative. No age limit has been set. The State will also encourage all those working with and for children "to form partnership with children in order further the protection of their rights" (clause 10(b)(3)). Social workers for example may thereby have more influence on the children than their own parents.

In each of these clauses parents are totally excluded. Manipulation or regimentation of children would be made possible and certainly easier by the State if it is in its interests to do so.

Conclusion:

Clauses 10(b)(1), (2) and (3) constitute a threat to the well-being of any family in Northern Ireland.

3.3 The family unit in jeopardy

The mention of the family comes in third place in clause 10(c) (page 66 of the Consultation document), after the general provisions referring to the best interests of the child (10(a)) and the participation rights (10(b)).

Every child is given the "right to grow up in a stable and safe family environment". No definition is given of what a "stable and safe family environment" is. No one knows who will be entitled to provide a definition.

If the child is denied a "stable, safe and loving family environment" he/she has the right to special protection and support from the State according to clause10(c)(2). Again, no definition is given of what a "stable, safe and loving family environment" is.

On the ground of these provisions the State will be free to make decisions which could eventually turn out to be to the prejudice of the maintenance of the family unit. Intervention by the State in family life will become more frequent and will be extended after the children have left care.

Conclusion:

Clauses 10(c)(1),(2) and (3) have the potential of jeopardising the family unit, especially since new notions, on the basis of which decisions concerning the future of children are to be taken, have yet to be defined.

3.4 Protection rights to be used against parents

The NIHRC has introduced in clause 10(d)(1) (page 67 of the Consultation document) "the right for the child to be protected from all forms of physical, emotional or mental violence, inhumane or degrading treatment or punishment, maltreatment", etc..

This right is to be enforced by the State, which is to establish "effective programmes for the identification, reporting, referral and investigation of abuse and for the care and treatment of victims" (clause 10(d)(2)).

There is little doubt that these clauses will be used against parents and schools who use physical chastisement for disciplining their children. Parents and more particularly Christian parents who believe that physical chastisement wisely and appropriately used is part of the up-bringing a child needs, will become the target of the State. This could well result in investigations and placements of children into State care based on the accusation that the family environment is unsafe. On one hand families will be persecuted because parents wish to bring their children up according to their beliefs and convictions, and on the other hand, forbidding parents to discipline their children reasonably at home will increase problems at school and within society as a whole.

Conclusion:

Clauses 10(d)(1) and (2) go far beyond Article 3 of the ECHR and the jurisprudence of the European Court of Human Rights and will result in classifying reasonable physical chastisement as child abuse.

3.5 Children in conflict with the law

The NIHRC suggests raising the age of criminal responsibility to 12 years of age (clause 10(e)(1) page 67 of the Consultation document). In a society where children are exposed to become offenders much younger than they were ten, twenty or thirty years ago, it would be inappropriate to raise the age of criminal responsibility.

Although the State undertakes to keep the age of criminal responsibility under review, any change will have to be made through an amendment of the Bill of Rights, which is a complicated procedure. It would therefore be preferable to determine the age of criminal responsibility in subordinate legislation.

The rights provided for children during criminal proceedings (clause 10(e)(2) and (3) page 68 of the Consultation document) are in substance almost the same as those already provided for adults, although guarantees are added which take into account the juvenile’s needs.

The UN Convention on the Rights of the Child outlines that in dealing with a child who has infringed criminal law, one of the purposes to keep in mind should be that of reinforcing "the child’s respect for the human rights and fundamental freedoms of others." This leading idea has been completely sidelined by the NIHRC, which has enunciated rights for the child without taking into account the need to educate the offender and make him aware of his responsibilities towards others.

Conclusion:

Clause 10(e)(1), (2) and (3) will not serve the purpose of correcting and educating young offenders and will increase lawlessness.

3.6 Health care: the right for children to receive information, material and guidance on sexuality

In clause 10(h)(2) (page 70 of the Consultation document) the NIHRC has gone as far as introducing a right for every child "to receive information, material and guidance from a range of services on issues relating to the child’s well-being, including reproductive health, sex and sexuality".

There is no age limit under which a child could not have the right to get any information he/she wishes to receive on reproductive health, sex and sexuality. The NIHRC is suggesting such a clause which could lead to all kind of perversions and encourage immorality among children to an extent yet unknown.

Education for children on sex and sexuality is first of all a matter for parents to deal with and cannot be reduced to an unlimited right to know, open to all children of all ages regardless of their ethical or religious background.

Conclusion:

Clause 10(h)(2) introduces an unlimited right for children to receive information, material and guidance on sexuality without the consent of their parents, in a way which could be contrary to their principles.

3.7 Education: control of the State over all the schools

According to clause 10(i)(4) (page 70 of the Consultation document) the state will have the power to "take measures to protect the safety of children in school, to respect their privacy and human dignity and to guarantee their effective participation in matters affecting his or her education"

The obligation to protect the safety of children in school will in practice allow the State to control all schools, in particular independent schools, and have access to the children who attend these schools. Independent schools will not be allowed in the future to educate children according to the beliefs and convictions of the parents and of the management of the school.

Conclusion:

Clause 10(i)(4) gives the State the right to control all schools, even independent schools, and to impose its views on education.

3.8 Children informed of their rights by the State

In clause 10(k) (page 71 of the Consultation document) the NIHRC has put an obligation on the State to make the rights of children widely known and accessible to all.

The State will include human rights on schools, youth service and training curricula. The information about these rights will take place without the intervention or approval of the parents and could encourage children to disregard their parents’ wishes and guidance and create friction within the family unit.

Conclusion:

According to clause 10(k) the State will inform children about their rights without their parents’ control, which could lead to all kinds of misinterpretations and misunderstandings on behalf of the child.

Education and language

The NIHRC proposal will give the State more power to control the education system throughout Northern Ireland (1) and will give priority to the Irish language over any other language (2).

1. Education rights controlled by the State

The NIHRC does not acknowledge the excellent standard of schools and education in Northern Ireland. Many countries across Europe as well as England, Scotland and Wales, look enviously at the schools (especially grammar schools) of Northern Ireland. A Bill of Rights has not been necessary for such an achievement.

Everything possible must be done to maintain these standards whilst promoting a still more effective system of education. All efforts should be made to help each person develop his/her abilities to the full and nothing should be done which could jeopardise the quality of the education system.

However, access to education could always be improved in order to give every opportunity to those willing to develop their potential.

The NIHRC has failed to recognise the very positive aspects of the present situation and suggests several provisions related to the right to education (1.1) and the protection from discrimination (1.2), which will have adverse effects on education, to the prejudice of all the people of Northern Ireland.

 

1. The right to education

Clause 11(a)(2) (page 74 of the Consultation document) introduces the right to an effective education directed towards the full development of the person. This clause is a mixture of Article 2 of Protocol 1 to the European Convention, Article 13 of the UN’s Covenant on Economic, Social and Cultural Rights, and the NIHRC’s own input. The NIHRC mentions the new notion of "development of the person" which has not yet been defined.

In clause 11(a)(3) the NIHRC envisages only the possibility for parents to choose between the following categories of schools for their children: schools with a particular religious ethos, integrated schools or Irish-medium schools. The Commission does not explain why other medium schools apart from Irish schools will not be taken into account by the State. Other medium schools could prosper in the future, such as German, French or Spanish-medium schools.

Clause 11(a)(4) (page 75 of the Consultation document) is made in addition to the previous clause. Under it the State must provide financial and other support to schools mentioned in clause 11(a)(3). As a result, Irish-medium schools will be privileged over and above any other-medium schools.

Conclusion:

Clauses 11(a)(3) and (4) will promote Irish-medium schools to the prejudice of other schools at the expense of the taxpayer.

 

2. Protection from discrimination

According to clause 11(b)(1) (page 75 of the Consultation document) no individual could be denied access to any educational establishment receiving State funding, on any of the grounds mentioned in clause 4(4) (page 31 of the Consultation document).

Schools who limit their access on the basis of residence could be accused of discrimination. Schools will not be allowed to refuse admission to students who possess a criminal conviction or who have an immoral sexual orientation contrary to its ethos. Any other criteria restraining access could well be deemed discriminatory under clause 4(4) and therefore forbidden.

Clause 11(b)(2) is destined to allow the State to control all criteria for admission to any educational establishment in order to assess whether it ensures access to effective and appropriate education for all. Exams like the "11-plus" would be submitted to that control. Who will set the standards? How will these standards be set to determine that the admission criteria ensure access to effective and appropriate education for all? These questions have yet to be answered.

Conclusion:

Clauses 11(b)(1) and (2) introduced by the NIHRC will lead to a break-down of discipline within schools and lower the quality of education provided by them.

 

2. Language rights to prioritise the Irish language

The NIHRC begins its comments by saying that "Northern Ireland has a wide variety of linguistic traditions", but in reality clauses 13(1) to 13(5) (page 81 to 84 of the Consultation document) aim at promoting in particular, if not exclusively, the Irish language.

The NIHRC has refused to acknowledge English as the official language for Northern Ireland. Therefore any language can be used in the Province provided it is sufficiently used and understood in the community.

According to clause 13(2), any public body would need to have as many interpreters as necessary in as many languages as can be envisaged in order to give everyone the information or services which are essential "to his or her life, health, security or enjoyment of other essential services". Most of the cost of these services would have to be born by the State.

Clause 13.4 states that legislation will have to be introduced to implement the commitments made in the Belfast Agreement and the European Charter for Regional or Minority languages for the Irish language and Ulster-Scots. The commitments made in the Belfast Agreement (para. 4 of the section entitled "Rights, Safeguards and Equal Opportunity") are almost entirely directed to the benefit of the Irish language. This provision is likely to be used by one section of the community to the prejudice of the majority and at the expense of the taxpayer.

For languages for which there is "sufficient demand" clause 13(5) will apply. Criteria to define the notion of sufficient demand have not been given by the NIHRC. Despite the fact that "sufficient demand" has not been defined, the Commission states that "in relation to the Irish language, criteria concerning sufficiency of demand already exist". According to the Commission, appropriate criteria in this matter could be developed for other languages.

Regarding those who wish to use the Irish language, legislation would be introduced for them to be able to deal with public bodies, use their name in this language and to be officially recognised under it, to display signs and other information in Irish, to display local street and other place names in it, to learn it and to be educated in and through it. These measures would be financed by the State.

Conclusion:

Clauses 13(1) to 13(5) will be used by nationalist extremists to further their ends and extend or at least strengthen their control over many areas in Northern Ireland and impose the Irish language on public bodies in a part of the United Kingdom.

 

5. Economy and environment

The NIHRC has introduced a general provision to place the allocation of public funds under the control of the Courts (1), a right to housing and to work jeopardised by terrorist activity (2) and a vague right to a healthy and sustainable environment (3).

1. A general provision: the allocation of public funds under the control of the Court

The NIHRC has introduced "a general provision to govern social and economic rights". The Commission’s proposed clause 14(a)(1) is designed, according to its own comments, to give individuals and representative bodies the right "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" (page 88 of the Consultation document).

According to clause 14(a)(1), all public bodies through which any of the legislative, executive or judicial powers of the State are exercised, will have to allocate resources "in a proportionate and non-discriminatory manner, as set out in the non-discrimination clause 4(4)".

Anyone will have the possibility of contesting in court the decisions made by a public body concerning the allocation of public funds on the basis of alleged discrimination. This may well open the door to legal action which would aim at modifying the policy chosen and implemented by representative bodies. Although the Commission in its comments says that "the courts would not be able to take direct decisions on how to allocate resources but would be able to supervise the proper implementation of the rights in question", it is undeniable that rulings from the courts will have a determining effect on the decision-making process of the legislative and executive powers in Northern Ireland.

Conclusion:

The opportunity of decision made by representative bodies concerning the allocation of public funds could be overturned by the courts on the ground of clause 14(a)(1).

 

2. Right to housing and to work jeopardised by terrorist activity

The NIHRC has placed on the government the obligation to ensure a "secure establishment" of everyone in his/her home (14(e)) (page 90 of the Consultation document).

The government also has the obligation to "create the social and economic conditions in which all those who wish to and are able to engage in work can do so" (14(f)) (page 91 of the Consultation document).

These are honourable objectives which any government should pursue with the utmost attention. They can be attained by the government on the condition that terrorism is defeated. Unfortunately, in the proposed Bill of Rights the NIHRC gives terrorist organisations more possibilities to cause disruption in society than ever before, which will inevitably have a detrimental effect on housing and employment.

Conclusion:

The NIHRC cannot on one hand give terrorists organisations new means to destroy the economy and on the other hand put new obligations on the State in clauses 14(e) and (f) to satisfy the right to housing and the right to work without contradicting itself and placing the State in an impossible position.

3. A vague right to a healthy and sustainable environment

Clause 14(g)(1) mentions "the right to a healthy, safe and sustainable environment" but does not provide any criteria in order to assess this right. Clause 14(g)(2) puts the obligation on the State "to communicate, consult and foster participation in planning and decision making on matters which concern the environment" but does not refer to any standards by which the State should abide.

Conclusion:

Clause 14 will not be of significant help to the people of Northern Ireland to ensure the protection of the environment.

Interpretation, limitations and enforcement of the Bill of Rights

The interpretation of the Bill of rights envisaged by the NIHRC is not focussed on democracy and fundamental principles (1). Limitations to the rights provided in the bill of rights will be reduced at a minimum (2) and the enforcement of the rights will be to the benefit of extremists organisations (3).

1. Interpretation not focussed on democracy and fundamental principles

The NIHRC indicates in clause 15(a) (page 93 of the Consultation document) how the clauses of the Bill of Rights are to be interpreted so as to "promote the spirit" of the whole document.

For the first time in the Bill of Rights, references are made to a "democratic society" in clause 15(a)(1). This provision is based on Article 39(1) of the Bill of Rights for South Africa. The South African Bill makes reference to democracy in the first place in its preamble as a foundation stone of the document. Then it refers to a democratic society as a means of interpreting the bill of Rights. The NIHRC has replicated in the South African Bill of Rights at the stage of the interpretation clause, failing to understand that a Bill of Rights must be fundamentally based on the rule of democracy.

In fact, the NIHRC emphasises that when interpreting the Bill of Rights any court, tribunal or other body will have to do it in the light of the Belfast Agreement. The spirit and the letter of the provisions of the Belfast Agreement will undoubtedly be reinforced through the interpretation and implementation of the Bill of Rights.

The clauses of the Bill of Rights will therefore be interpreted in relation to the Belfast Agreement as follows:

• The Belfast Agreement has given terrorists access to government and the Bill of Rights will give them the ‘human right’ to be there and to stay there (clause 2);
• The Belfast Agreement has given the right to terrorist prisoners to be released from prison and the Bill of Rights will give them the right not to be discriminated against on the basis of their criminal convictions (clause 4);
• The Belfast Agreement establishes a compromise between democrats and terrorists to the benefit