Comments by the Ulster Human Rights Watch on the Consultation document "Making a Bill of Rights for Northern Ireland" Published by the Northern Ireland Human Rights Commission (NIHRC)

In March 1999 the Secretary of State for Northern Ireland, Dr Marjorie Mowlam, requested that the Northern Ireland Human Rights Commission (NIHRC) consult and advise her on "the scope for defining rights supplementary to those in the European Convention on Human Rights" (ECHR), on the basis of Section 69(7) of the Northern Ireland Act 1998.

The Commission decided not to abide by its mandate. Rather than advising on the scope for defining rights supplementary to those of the European Convention, it decided to advise on what it called the requisite rights themselves. In doing so, the NIHRC has indisputably extended its mandate and produced a Consultation document entitled "Making a Bill of Rights for Northern Ireland", which was published in September 2001. The proposal put forward is a complete Bill of Rights covering a whole range of rights such as civil and political rights as well as economic and social rights.

The idea of having a comprehensive Bill of Rights for Northern Ireland may appear attractive. However, if the Bill of Rights proposed by the NIHRC was to be implemented, it would have long-lasting detrimental effects for the people of Northern Ireland, since many of its provisions would particularly favour terrorists and terrorist organisations.

The implications of the suggested clauses of the Bill of Rights will be commented on under the following headings:

(I) Terrorism and Democracy

 

 

(II) Communities and Individuals

(III) Women and Children

(IV) Education and Language

(V) Economy and Environment

(VI) Interpretation, Limitations and Enforcement

(VII) Entrenchment and Amendment.

1. TERRORISM AND DEMOCRACY

The proposed Bill of Rights originated from the Belfast Agreement (Section: Rights, Safeguards and Equality of Opportunity) which is a compromise reached after lengthy negotiations between terrorist-related politicians and politicians committed to democracy. Its main objective is to strengthen the "commitments" made by the participants in the multi-party negotiations and enumerated in the "Declaration of Support" of the Belfast Agreement.

• As soon as they are elected, representatives will be given "fair, full and effective participation in the governance of Northern Ireland" (Clause 2(b)(1)). The system implemented by the Belfast Agreement will as a result be strengthened, allowing terrorist-related politicians not only to have access to the government of Northern Ireland, but also to remain in power in any circumstances.
• Anyone holding a criminal record will have the right not to be discriminated against on the grounds of his conviction (Clause 4(4)). Any terrorist will therefore be entitled to claim that he is discriminated against, even if a fair decision is made about him because of a previous conviction.
• New and stricter conditions (Clause 6(a)(3)) will be imposed on the police when dealing with terrorists, making the work to prevent and repress terrorist activity even more difficult if not impossible.
• Terrorist suspects will enjoy new rights and especially the right to remain silent, and to have no adverse inferences drawn at a later stage if this right is exercised (Clause 7(a)(14)). The NIHRC has already admitted that this clause will bring into question the provisions of the Terrorism Act 2000.
• A terrorist who is charged will have the right to remain silent at the trial and have no adverse inferences drawn if he exercises this right (Clause 7(b)(5)). He will also have the right to choose to be tried by a judge sitting either with or without a jury (Clause 7(b)(6)).
• The terrorists will be classified as "victims of the conflict" and will receive the same treatment as real victims of terrorist activity (Clause 8(a)(1)).
• The right to freedom of assembly will not be made more effective, since the NIHRC has abstained from introducing any clause to that end, and on the contrary has provided residents’ groups with new means of opposing peaceful processions and extending their control over public areas (Clause 4(8) combined with Clause 4(4)).
• The adoption of emergency legislation will be made extremely difficult, to the benefit of terrorist organisations (Clause 17(b)). There will be the possibility of terrorist organisations taking advantage of this in order to organise large-scale terror campaigns in Northern Ireland.

2. COMMUNITIES AND INDIVIDUALS

The NIHRC has adopted a very peculiar approach towards the people of Northern Ireland, since they are not considered as being part of one community, but are to be divided into at least two main communities. The selection will be made on the basis of religious beliefs and/or political opinion. Other communities would also be identified on the grounds of particular criteria which the Commission has not yet determined. The end result of such an approach will be to institutionalize segregation among the people of Northern Ireland.

• Any individual born in Northern Ireland will have the right to identify himself and be accepted by the British authorities as Irish if he/she so chooses (Clause 3(a)(1)). Those who apply for Irish citizenship will therefore be free to deny their British citizenship and claim on the grounds of their Irish nationality the intervention of the Irish Government in the internal affairs of the United Kingdom.
• The word "minority" will be replaced with the word "community" (Clause 3(b) and sub-clause 5 of the Preamble) so as to give to the minority of the people of Northern Ireland the same political rights as the majority. As a result, majority rule, which is a basic rule of democracy, will be made void to the benefit of the minority against the rights of the majority.
• The "non-discrimination clause" (Clause 4(4)) will exclude any form of restrictive measures on any ground (for example possession of a criminal conviction). This will lead to abusive claims on the grounds of alleged discrimination which will not serve the aim of equality.
• Many of the clauses about the right to liberty and security of the person as well as the right to a fair trial (added to the ECHR by the NIHRC) will be to the benefit of law-breakers and particularly suspected terrorists, and will not serve the purpose of justice.
• Violence carried out by terrorists on the population of Northern Ireland has not been dealt with by the Commission. The right for everyone not to be subjected to torture, inhumane and degrading treatment or punishment will continue, as ever, to be violated by terrorists.
• The right to freedom of thought, conscience and religion, to freedom of expression and to freedom of peaceful assembly will not be more effectively respected and enforced since the Commission has not dealt with these issues.

3. WOMEN AND CHILDREN

The NIHRC has suggested clauses which will (1) give women and girls "quota-style" treatment, (2) extend the right to family and private life to homosexuals, and (3) by establishing rights for children, bring them under increasing state control.

1. A quota-style treatment of women and girls

The approach of the NIHRC has been to treat the rights of women separately from those of men:

• It will be the duty of the State to take all necessary measures to promote the equal enjoyment of all human rights and freedoms for women and girls only (Clause 3(3)).
• Women and girls will in practice be given the right to choose abortion on their own, through the right to free access to sexual and reproductive health (Clause 14(c)(5)). This means also that the father’s rights and responsibilities towards his child will be denied.
• The right to freedom from domestic violence will only apply to women and girls (Clause 8(c)(1)), although men and boys can also be victims of domestic violence.
• The State will be under an obligation to take specific measures for women only in order to promote their right to equal participation in public life (Clause 2(b)(2)).

2. Rights to family and private life extended to homosexuals

The NIHRC has endeavoured to legitimize partnerships between gay men or lesbian women, so as to grant effective recognition to relationships other than marriage (Clause 9(b)(2)). The Commission tries to justify its position by referring to Article 5 of Protocol 7 of the ECHR. However, this provision only relates to equality of rights between spouses, husband and wife and does not deal with the rights of homosexuals in any way.

CONCLUSION

The NIHRC has abusively extended the scope of Article 5 of Protocol 7 of the ECHR in order to give homosexuals the same rights as married people.

 

3. Children under the increasing control of the State

The NIHRC’s approach towards children’s rights has been to give them particular rights, guaranteed by the State, and to create a special relationship between children and the State:

• The "best interests of the child" will be the paramount consideration in all actions concerning children (Clause 10(a)(8)), but no definition of what the best interests of the child are, has yet been given.
• The State will ensure that children have the right to air their opinions freely on all matters concerning them, without any form of control by their parents (Clause 10(b)(1)).
• Those working with children will be encouraged to "form partnerships" with them to further the protection of their rights, without involving parents or taking into account their views (Clause 10(b)(3)).
• The State will have the power to make decisions concerning children’s future on the basis of new notions such as the absence of a "stable, safe and loving environment" for which no definition has yet been provided (Clause 10(c)(2)).
• Children will have the right to be protected from "all forms of violence". This may be used against parents who give their children reasonable physical chastisement (Clause 10(a)(1) and (2)).
• Criminal responsibility for children will be raised from 10 to 12 years of age despite the fact that younger children are becoming increasingly involved in crime, and although the need for the child to respect the human rights and fundamental freedoms of others will not be emphasized (Clause 10(e)(2) and (3)), thereby increasing lawlessness.
• A child of any age will be entitled to receive information, material and guidance on reproductive health, sex and sexuality without the consent of their parents (Clause 10 (h)(2)).
• The State will control the way schools are run and impose its view on education (Clause 10(1)(4)).
• The State will undertake to inform children about human rights in school without their parents’ consent or control (Clause 10(k)).

4. EDUCATION AND LANGUAGE

1. Education rights controlled by the State

The NIHRC has failed to acknowledge the excellent standard of schools and education in Northern Ireland as compared to the rest of the United Kingdom and indeed many other countries across Europe. All possible steps should be taken to preserve the present system of education, although it is still possible to improve it in order to better address the needs of children.

• Parents’ possible choices of schools have been limited by the NIHRC to only three categories: schools with a particular religious ethos, integrated schools, or Irish-medium schools (Clause 11(a)(3)). The possibility of having other-medium schools such as Ulster-Scots (or German or French) is not even mentioned.
• Access to schools receiving State funding will be limited by factors such as place of residence. Criminal convictions will no longer be grounds for denying admission to schools, as this would be classified as discriminatory (Clause 11(b)(1) combined with Clause 4(4)).

2. Language rights to prioritise the Irish language

The NIHRC has refused to acknowledge English as the official language for Northern Ireland and has prioritised the Irish language:

• Public bodies will be under an obligation to provide every foreign national with the information or services essential to their life, health, security or enjoyment of other essential services, in his/her own mother tongue (Clause 13(2)).
• New legislation will be introduced to ensure that those who wish to use the Irish language on a regular basis with public bodies at the expense of the State, will be able to do so (Clause 13(5)).

5. ECONOMY AND ENVIRONMENT

The NIHRC has proposed (1) to put the allocation of public funds under the control of the Courts, (2) a right to housing and to work, (3) a right to a healthy and sustainable environment.

1. The allocation of public funds under the control of the court

The NIHRC has introduced a very questionable right which could be used by individuals as well as representative bodies in order to contest in court decisions made by a public body concerning the allocation of public funds (Clause 14(a)(1)).

CONCLUSION

Such a provision will lead the courts to interfere with the allocation of public funds decided by public bodies or the government.

2. Right to housing and to work

The NIHRC places the State under the obligation to satisfy the right to housing (Clause 14(e)) and the right to work (Clause 14(f)), but at the same time, by way of numerous clauses in the proposed Bill of Rights, provides terrorists and terrorist organisations with new means of disrupting the economy.

CONCLUSION

By providing terrorist organisations with new ways of destroying the economy and at the same time expecting the State to deliver the right to housing and to work, the NIHRC will put the State in an impossible situation.

3. The right to a healthy and sustainable environment

6. INTERPRETATION, LIMITATIONS AND ENFORCEMENT OF THE BILL OF RIGHTS

1. The interpretation of the Bill of Rights will be made on the basis of the Belfast Agreement

The interpretation of the clauses of the Bill of Rights will be made on the basis of its Preamble, which refers specifically to the Belfast Agreement. Although reference is made for the first time in Clause 15(a)(1) to "democratic society" for the interpretation of the Bill of Rights, this notion is not mentioned in the Preamble as one of the foundation stones for the Bill of Rights. The provisions of the Belfast Agreement which benefit terrorist organisations will be reinforced and confirmed through the interpretation of the clauses of the Bill of Rights

CONCLUSION

The interpretation of the Bill of Rights will be done in a sense which is favourable to terrorists and terrorist organisations, therefore reinforcing the segregation of the people of Northern Ireland into two main communities, further undermining the family unit and increasing instability in Northern Ireland society.

2. Limitations to the rights of the Bill of Rights limited to a minimum

The NIHRC has reduced limitations of the rights set out in the Bill of Rights to a minimum. The interpretation and application of the Bill of Rights will therefore be orientated in favour of extremists who will take advantage of the absence of limits to their rights (Clause 16(1)).

CONCLUSION

The restriction of limitations to a minimum will be to the advantage of extremists and against the interests of the law-abiding people of Northern Ireland.

3. Enforcement of the Bill of Rights to the benefit of some organisations

7. ENTRENCHMENT AND AMENDMENT