The Bill of Rights- Monica's Empire (attempts to) Strike Back

It was announced on Wednesday that the chief executive of the Northern Ireland Human Rights Commission, Peter O’Neill is to leave his post. "Reorganisation of management structures" was given as the reason. The NIHRC is also facing an independent consultants' report reviewing internal management. Its funding has been cut by 25%, the NIO has prevented the quango from receiving additional financial support from Atlantic Philanthropies. Its chairwoman and board will be leaving their post a year earlier than required next year and finally its raison d’etre, the Northern Ireland Bill of Rights, has been laughed out of court by the powers that matter (not to mention impartial legal experts and the accountants).

Ms McWilliams, however, still refuses to accept the inevitable.

She was seen roaming the lobby of the House of Commons one day last month. The purpose, lo and behold, was revealed, the very next day, during the first PMQ following Osborne’s CSR. The Scottish MP Michael Connarty caught Cameron somewhat unawares with the, by now, typical emotive whinge about the stalled Bill of Rights:

Following a meeting with the Northern Ireland human rights commissioners yesterday, it is clear that this Government intend to breach the spirit and the letter of the Good Friday and the St Andrews agreements by refusing to bring in a Human Rights Act specifically for Northern Ireland, as recommended by the commission and supported recently by more than 80% of the Protestant and Catholic communities. How can the Prime Minister possibly excuse this betrayal of the people of Northern Ireland?

As I’ve mentioned before, by a strange coincidence, a SDLP representative always seems to be conveniently around when Monica wishes to make a point; this time was no exception:

Margaret Ritchie:
To ask the Secretary of State for Northern Ireland what funding he has allocated to the Northern Ireland Human Rights Commission for (a) 2011-12 and (b) 2012-13; and if he will make a statement.

On their own, two obviously planted questions at Westminster don’t change the balance of equilibrium; however it would appear that Ms McWilliams has been an active little er... activist recently with lobbying further afield.

Consequently, a small herd of pro-BOR Lords are being corralled in the Upper Chamber, more significantly the US and Irish government are also reportedly resuming pressure on Prof McWilliam’s behalf.

OK, now moving into the speculative... two further factors may help her in, what should be by all rules of commons sense and logic, an impossible quest.

Firstly, it would seem, after Woodward’s outburst this week that Labour may be prepared, for partisan purposes, to break with the traditional consensual attitude towards N.Irish affairs- having the main opposition party behind her would be a big improvement from the previous situation for Ms McWilliams. Secondly, the increase in publicity for the dissident Republicans (check out this rather curious and conveniently timed piece in yesterday’s Telegraph) does given an implied, if not direct, reason to push the Bill:
"We need to give mainstream Republicanism something to head off the wildmen"

As I said at the beginning, the Bill of Right was rejected by both main parties at Westminster for one main reason- it was completely and utterly unworkable. Neutral accountants and lawyers have also dismantled it clause by ridiculous clause. But rather than accepting this verdict and, going back to the drawing-board to come up with a workable alternative, one which would have a real chance to improve human rights here, the supporters of the Bill are now attempting to get it pushed through the backdoor. In the interests of democratic governance, economics and human rights, it's important that they are no more successful in this attempt than in their last one.


Update

This from Lady Trimble is well worth the read:

IRISH ASSOCIATION PANEL DISCUSSION ON HUMAN RIGHTS 16 OCTOBER 2010 CANAL COURT HOTEL NEWRY
Contribution from Daphne Trimble

STRUCTURES
I want to start by looking at the structures of Human Rights bodies, in Northern Ireland, and the rest of the UK.

SACHR in Northern Ireland was set up in 1975; it had a purely advisory, although frequently influential, role. It was superseded by the two Commissions, Equality and Human Rights, established by the Belfast Agreement in 1998.

The Human Rights Act, applicable equally throughout the UK, came along very shortly and the Scottish Human Rights Commission and the Equality and Human Rights Commission in London, with its Wales and Scotland committees came much later.

All three commissions have slightly different remits, and it is interesting to contrast the regional differences.

The Scottish Commission, created by an Act of the Scottish Parliament, and starting work in 2008, has the fewest powers. It is devolved and answerable to the Scottish Parliament. Its main statutory role is to promote human rights, and in particular to encourage best practice with regard to human rights. Interestingly human rights are specifically defined as the rights contained in the ECHR and those international instruments ratified by the UK. It cannot give legal advice or assistance. So, as I understand it, it has no remit to extend the concept of human rights beyond that contained in the HRA and international instruments that have been ratified by the UK.

The EHRC was set up under the Equality Act of 2006 and covers both Equality matters and human rights matters for England and Wales, and for Scotland. It has regional offices in Scotland and Wales. You may have noticed press reports around the recent launch of its first triennial review, How fair is Britain?
Its powers and duties are it seems to me approximate to an amalgamation of the NIHRC and ECNI’s powers and duties. With regard to human rights it has promotion and encouragement duties, and in particular encouragement of public authorities to comply with convention rights. However there is one big difference in that it can only assist individual litigants in relation to Equality matters, not where an issue relates solely to human rights.

For the purposes of the commission human rights are defined as:
1 Convention rights and 2 other human rights.

All three commissions have power to conduct investigations.

The NIHRC is not devolved, but under the Northern Ireland Act 1998 it has general powers that are broadly similar to the GB commission’s powers relating to human rights, but in addition:-
It had a duty to respond to the Secretary of State’s request for advice as to whether or not there was scope to extend human rights in Northern Ireland beyond those contained in the European Convention. Crafting that response became known as the bill of rights work. That work became mired in controversy, the first group of commissioners collapsed in disarray with the resignations of most of them, an advisory forum sat for 18 months and failed to agree; in all the job lasted ten years, and the Commission’s eventual recommendations, over 80 of them in total were not unanimous; both unionist members dissented from the entire report, and its recommendations were summarily dismissed by the last labour government. Its work with regard to a Bill of Rights for Northern Ireland ought now to be regarded as completed, finished, done.

The other additional power that it has is that it can assist individuals in taking cases to court, and has done on many occasions, sometimes at great expense; to the extent that other work of the commission has suffered through lack of funds. In my time on the commission the costs of these cases, in particular the Holy Cross case, to which an open ended commitment had been made years previously, and before any of the current commissioners were in place, was an enormous drain on resources. And it was not just in financial terms that the Commission suffered: In the House of Lords case relating to Holy Cross where the commission intervened it came in for considerable criticism from Lord Hoffman, so it suffered reputational damage.

The Scottish Commission has no such power; the EHRC can assist individuals to bring cases under Equality laws, but not human rights cases.

So Northern Ireland is the only part of the UK where a state funded body will use public money to permit an individual to bring a purely human rights case. Is it any wonder we have human rights lawyers in abundance here! But more seriously, is this situation tenable in the long term?

Interestingly, the Northern Ireland Act does not define human rights at all.

The Belfast Agreement also required the Irish government to establish a Human Rights Commission, with a broadly similar remit to that in Northern Ireland and for a joint committee of the two Commissions to be established; and broadly speaking, those commitments have been fulfilled.

Part of their remit was to consider ‘the possibility of establishing a charter, open to signature by all democratic political parties’ for the whole island.
There is no political pressure now for any such Charter to emerge, and yet the work has been chuntering on for the last 12 years, and it could well continue for the next 12 years, without conclusion. Is it necessary?


CHALLENGES

There is a trend among human rights professionals, not just here, but internationally to attempt to expand human rights law to include socio-economic rights. Now, socio-economic issues are resource dependent, and whatever arguments there might be about such rights when the economic climate is one of expansion, when we have, as now, a contraction in resources, there can be no question or doubt that the allocation of these scarce resources is and should remain a political rather than a legal issue. And in any event, who is going to take a case? In the absence of legal aid, where resources are already under huge pressure, it would only be well funded single issue pressure groups who could afford to take a case.

Equally we should be very wary of any attempts to create different human rights laws in different regions of the same country. Ultimately that is what finally did for the bill of rights process in Northern Ireland. Now you won’t get anyone in government to say that it is not possible to have different rights in different regions of the same country, but the more you try to identify what those rights could or should be, the more you realise how impossible the task is, particularly when you are mindful that one of the human rights standards is that human rights are universal. The European Court may take the view that such differences within a country could be discriminatory.

There can be problems with human rights case law. The HRA incorporated the provisions of the European Convention into domestic law, and thereby bound our judges to follow the precedents set by the judgements of the European Court of Human Rights.

This can, and has led to some curious decisions. Increasingly lawyers in the UK are making the argument that this should change. Is it appropriate that our courts must follow the judgement of, say, a Turkish judge in an Italian case? Is it right that this court, with one member from each of the 47 members of the Council of Europe, many of whom will have little or no understanding of our common law legal system, should adjudicate on matters which most people would assume on the face of it to be wholly within national jurisdiction? We might well find our law being changed by decisions taken by people who are not familiar with our legal system and who are making decisions for a society which is quite different from ours. And this applies not just to the European Court of human Rights, but equally to the European Court of Justice, and that is why we saw the Conservative party contemplating a UK Sovereignty Act.

Lord Hoffman makes a trenchant attack on the European Court of Human Rights in his 2009 Judicial Studies Board Annual lecture.

He gave two examples of cases on the right to a fair trial (Art 6). The first involved Ernest Saunders, the Guinness case. English law recognises in general a right to silence, but there are statutory exceptions, in this case the notes of evidence taken by inspectors appointed by the SoS investigating the actions of the company directors in the winding up of the company were admitted in the English Court, but Strasbourg held that admitting those notes was a breach of Mr Saunders’ right to a fair trial. There was no explanation of why it was improper, let alone a gross violation of human rights, for Mr Saunders to have to tell the inspectors about his actions during the take-over. The court said that the privilege applied to “all types of criminal offences without distinction from the most simple to the most complex.” Clearly Lord Hoffman thought the European Court had made a mistake.
In another British case the owner of a car complained that his privilege had been violated because he had been required, on pain of a fine, to say who had been driving his car when it was photographed speeding. His case was thrown out, but a dissenting judge made this comment:
“maybe the time has come to review speed limits and set limits that would more correctly reflect peoples’ needs…It is difficult for me to accept that hundreds of thousands of speeding motorists are wrong and only the government is right.”
That might be a popular view, but should any judge think it appropriate to use human rights as a basis for changing speed limits?

The mood of the time is to add responsibilities into the mix. Before the election the Conservatives were talking in terms of replacing the Human Rights Act with a UK wide Bill of Rights and Responsibilities. This remains the position of the coalition government, but the indications are that it has slipped down the priority list. The government proposes to appoint a commission to consider matters. This commission will not be appointed until 2011, and my understanding is that it will be a small commission. Let us hope that it will adopt a different approach from the Northern Ireland Commission, and that we might expect a report before 2021.

Now, my understanding is that this would be responsibilities and duties owed by the individual to the state, or indeed to other individuals. Would they be legally enforceable, or will we see something that has more of the character of an aspirational document.


FUTURE
The world has changed since 1998. At that time we all expected that we in Northern Ireland would be playing catch up with the rest of the UK and Ireland; and we did. But we did not expect that we would in a few years be facing a world wide economic crisis. The budget of the Irish Commission was cut savagely some time ago; the NIHRC budget has just recently been cut; and we are about to have a comprehensive spending review. The Coalition government has been promising us a bonfire of the quangos, so what will happen?

As far as the structures are concerned, the options are: amalgamate the Northern Ireland human rights and equality commissions – possible, and one being devolved and the other not could be easily resolved; or give the EHRC jurisdiction in Northern Ireland – this would give the opportunity to dispense with both the human rights and equality commissions. We could then possibly have a much trimmed Human Rights commission as in Scotland to deal with devolved issues.

We also have the very curious arrangement whereby all three HR institutions are accredited with the International Coordinating Committee of national human rights institutions, but only one at a time. This means they can take turns at representing the UK in trips to Geneva, and can sit in on some of the UN meetings. Do we really think that the Scottish or Northern Ireland commission can speak with credibility in purporting to represent the United Kingdom as a whole? And of course we could not be comfortable with the England and Wales Commission always representing us. In stark legal and logical terms it is an absurdity to have three human rights commissions in one country.

End