Further updates on the BOR process: the NIAC report

Following on from Cian’s earlier blog on the response of the DUP to the NIO’s Consultation Paper on a Bill of Rights for Northern Ireland, it is worth noting that 24 March saw the Westminster Northern Ireland Affairs Committee release ‘A Bill of Rights for Northern Ireland: An Interim Statement‘.

Given the political make-up of that Committee, many of those in favour of a NIBOR regarded the NIAC’s decision to carry out such an inquiry as an effort on the part of political actors unhappy with the NIHRC’s advice to have ‘another bite at the cherry’. Arguably, the limited and poor quality consultation document produced by the NIO in response to the NIHRC’s advice rendered this unnecessary. (For a discussion of some of the criticisms made of the NIO document, see here)

Whatever its reasons, the Committee itself does not make an explicit recommendation either in favour or against a NIBOR. Rather it states:

Egan on a Charter of Rights for the island of Ireland

We are delighted to welcome this guest post from Suzanne Egan on a Charter of Rights for the island of Ireland. Although Suzanne is a member of the Irish Human Rights Commission as well as a lecturer in UCD School of Law, she contributes this post in a strictly personal capacity. You can find out more about Suzanne on our guest contributors page.

Paragraph 9 of the Rights, Safeguards and Equality of Opportunity section of the Belfast Agreement provides explicitly for a Joint Committee of the Human Rights Commissions, North and South, to consider “the possibility of establishing a Charter, open to signature by all democratic political parties, reflecting and endorsing agreed measures for the protection of the fundamental rights of everyone living in the island of Ireland”.  While this aspect of the agreement has received limited attention in academic and indeed political circles, it gives rise to a myriad of interesting theoretical and practical issues.

For example, what is the mandate of the Joint Committee in this matter? The phraseology of the Agreement seems deliberately vague on this point: it does not compel the Joint Committee to actually produce a draft Charter, but merely “to consider… the possibility of establishing” same (emphasis added).   In its first attempt to engage with its duties under paragraph 9 by way of a pre-consultation paper in 2003, the Committee took the view that it would be incumbent on it to actually produce such a Charter.  But is this interpretation really warranted on the text, or advisable, given the questions that will inevitably be raised about its legitimacy, expertise and indeed capacity to do so.

Second, what objective would be served by an all-island Charter of rights? The Pre-Consultation paper outlines various models for a Charter which, in the view of the Joint Committee back then, could be open to signature not only by the political parties, but also by the Northern Ireland Executive and the two governments.  These include a declaratory, progressive and enforceable model.  The Joint Committee expressed a preference for a progressive model which would commit signatories to the progressive achievement of quite a detailed array of human rights guarantees.  But the paper does not, in my view, adequately address the question of what added-value such a Charter would bring to the current and indeed anticipated framework of human rights on both sides of the island.

The Joint-Committee’s pre-consultation foray in 2003 failed to stimulate a significant response from the political parties and civil society in either jurisdiction.  Its work on the Charter subsequently stalled, mainly on account of the evolving Bill of Rights process in Ireland.  Now that the Northern Commission has submitted its advice on the Bill of Rights to the Secretary of State for Northern Ireland, it looks like the attention of the Joint Committee will inevitably turn to the Charter. Indeed, a recent conference hosted by the School of Law in UCD attempted to reignite dialogue around a Charter of Rights.  When the Joint Committee’s attention turns to the Charter, it is imperative that the Committee look more closely at its mandate; consider fully the possible objectives of any potential Charter; and establish a balanced and constructive consultation on the matter, which, most importantly engages the political parties (see further: S.Egan and R.Murray, (2007) 56 I.C.L.Q. 797-386).