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A Charter of Rights for the Island of Ireland: An Unknown Quantity in the Good Friday/Belfast Agreement

Published online by Cambridge University Press:  17 January 2008

Abstract

The basic aim of the Good Friday/Belfast Agreement was to try to achieve a political settlement to the conflict in Northern Ireland. While the channels for the settlement were to be primarily institutional, the importance of safeguarding the rights of both communities in Northern Ireland by addressing equality and justice issues was recognized, to varying degrees, by all parties to the process that led to the drafting of the Agreement. As the negotiations progressed, the human rights section of the Agreement grew exponentially, moving ‘from the margins to the mainstream’ so that the final Agreement contains a whole section on human rights protections. Not only have these particular elements of the Agreement come to fruition, but they also have received a considerable amount of public and political interest as well as academic comment and analysis. Buried within the human rights chapter, however, is a concept that has so far received minimal interest or enthusiasm from any quarter. That is the reference in paragraph 10 of the ‘Rights, Safeguards and Equality of Opportunity’ chapter to the possibility of establishing an all-island Charter of Rights.

The purpose of this article is threefold. First, it traces the genesis of the Charter of Rights concept through to its inclusion in the Good Friday/Belfast Agreement; secondly, it examines the approach thus far taken by the Joint Committee of the two human rights commissions to the task entrusted to them in relation to the Charter by the Agreement; and finally, it explores some of the issues that need to be considered and the challenges faced by that Committee in future efforts to assist in the construction of any such Charter. In so doing, it describes the political and legal difficulties faced in attempts not only to formulate agreement on human rights but also to create a legal document which may be applicable to two jurisdictions. It concludes by suggesting ways in which the project may be progressed.

Type
Articles
Copyright
Copyright © British Institute of International and Comparative Law 2007

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References

1 The term ‘Good Friday/Belfast Agreement’ (10 04 1998) is a collective one denoting the two documents entitled (1) The ‘Multi-Party Agreement’ and (2) The British-Irish Agreement: <http://cain.ulst.ac.uk/events/peace/docs/agreement.htm>>Google Scholar. See generally Morgan, A, The Belfast Agreement: A Practical Legal Analysis (The Belfast Press, London, 2000) ch 1Google Scholar; and O'Cinnéide, C, The Implications of the Multi-Party Agreement for the Further Development of Equality Measures for Northern Ireland and Ireland (The Equality Authority, Dublin, 2005) 713.Google Scholar

2 See generally, Hennessy, T, The Northern Ireland Peace Process: Ending the Troubles? (Gill & Macmillan, London, 2001) pt 111.Google Scholar

3 See Mageean, P and O'Brien, M, ‘From the Margins to the Manstream: Human Rights and the Good Friday Agreement’ (1999) 22 Fordham Intl L J 1499.Google Scholar

4 Section 6, entitled ‘Rights, Safeguards and Equality of Opportunity’. Although it should be noted that human rights are mentioned in other parts of the Agreement: ibid 1519–1537. See also, Harvey, C and Livingstone, S, ‘Human Rights and the Northern Ireland Peace Process’ (1999) 2 European Human Rights Law Review 162, 168–70 (EHRLR).Google Scholar

5 See, eg, the collection of articles on various aspects of the Belfast Agreement by politicians and academics in (1999) 22 Fordham Intl L J 1136–775.Google Scholar

6 Para 10, ‘Rights, Safeguards and Equality of Opportunity’ section of the Belfast Agreement 1998.

7 The article was the brainchild of the late Professor Stephen Livingstone of Queen's University, Belfast. Professor Livingstone and Suzanne Egan received a major grant from the Irish Council for Research and Social Sciences to conduct the research and Professor Livingstone worked on the project until his untimely death in March 2004. Professor Rachel Murray and Suzanne Egan resumed the work together in 2005. As part of the research, interviews were conducted with key figures involved in drafting the human rights section of the Belfast Agreement. The project was greatly aided by the assistance of Ms Evelyn Larney, BL LLM. It should be noted that Suzanne Egan is a member of the Irish Human Rights Commission but, since undertaking the writing of this article, ceased to participate in Joint Committee Meetings regarding the Charter of Rights.

8 See, eg Emmerson, B, ‘This Year's Model: The Options for Incorporation’ (1997) 4 EHRLR 313Google Scholar; Klug, F, ‘A Bill of Rights for the United Kingdom: A Comparative Study’ (1997) 5 EHRLR 501Google Scholar; Hiebert, JL, ‘Parliamentary Bills of Rights: An Alternative Model?’ (2006) 69 MLR 728CrossRefGoogle Scholar; Malherbe, R, ‘A New Beginning: Introducing the South African Constitution and Bill of Rights’ (2000) 18 Netherlands Quarterly of Human Rights 4565 (NQHR)CrossRefGoogle Scholar; Sedley, S, ‘A Bill of Rights for Britain’ (1997) 5 EHRLR 458–65.Google Scholar

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12 ‘My own view is that the political declaration route was the right approach. There are two reasons for that. First, it is easier in a political declaration to show a clear statement of values which people can understand without the qualifications and exceptions necessary in a written law. The second reason is that in the end I believe the Charter lacks the precision of language necessary to allow it legal force. President Herzog wanted us to draft so that the Charter could be integrated into the Treaties if that was subsequently decided. In this respect I believe we have not succeeded. Even with the helpful commentary of the Presidium, the Charter will lack the precision necessary for a law. So whilst it should be acceptable and valuable as a political statement, my own view is that this text is not suitable for incorporation into the Treaties whether directly or by cross-reference’: Goldsmith, Lord, ‘A Charter of Rights, Freedoms and Principles’ (2001) 38 CML Rev 1201, 1215.Google Scholar

13 ibid 1209.

14 The Sunningdale Agreement (9 12 1973): <http://cain.ulst.ac.uk/events/sunningdale/agreement.htm>>Google Scholar; Anglo-Irish Agreement (15 11 1985) (Cmnd 9657, 1985) <http://cain.ulst.ac.uk/events/aia/aiadoc.htm>>Google Scholar; Belfast Agreement (n 1). See generally, Boyle, K and Hadden, T, Northern Ireland: The Choice (Penguin, London, 1994) 119–20.Google Scholar

15 ‘… would be invited to consider what way the principles of the European Convention on Human Rights and Fundamental Freedoms would be expressed in domestic legislation in each part of Ireland. It would recommend whether further legislation or the creation of other institutions, administrative or judicial, is required in either part or embracing the whole island to provide additional protection in the field of human rights. Such recommendations could include the functions of an Ombudsman or Commissioner for Complaints, or other arrangements of a similar nature which the Council of Ireland might think appropriate’, The Sunningdale Agreement (12 1974) para 11.Google Scholar

16 Anglo-Irish Agreement (n 14) Art 5(a).

17 Interestingly, however, the British Government indicated that it was prepared to consider the idea of a joint declaration of rights by both governments at the ninth meeting of the Intergovernmental Conference on 6 October 1986, although this went no further. Hadden, T and Boyle, K, The Anglo-Irish Agreement: Text, Commentary and Official Review (Edwin Higel Ltd, Dublin and Sweet & Maxwell, London, 1989) 914.Google Scholar

18 Para 10, ‘Rights, Safeguards and Equality of Opportunity’ section of the Belfast Agreement 1998.

19 Interview with member of political party, 6 Dec 2004.

20 Harvey and Livingstone (n 4) 166.

21 The Joint Declaration on Peace: The Downing Street Declaration, issued by AN Taoiseach, Mr Albert Reynolds and the British Prime Minister, The Rt Hon John Major MP, 15 Dec 1993 UK-Ir, Cm 2442: <http://cain.ulst.ac.uk/events/peace/docs/dsd151293.htm>; A New Framework for Agreement—22 February 1995 <http://cain.ulst.ac.uk/events/peace/docs/fd22295.htm>. See generally, Christaldi, R, ‘The Shamrock and the Crown: A Historic Analysis of the Framework Document and Prospects for Peace in Ireland’ (1995) 5 J of Transnational L & Policy 123.Google Scholar

22 Joint Framework Agreement, para 51.

23 Interview with civil servant, 29 Nov 2004.

24 Interview with member of political party, 6 Dec 2004.

25 Interview with civil servant involved in negotiations, 29 Nov 2004.

28 Section 69(10) of the Northern Ireland Act 1998, which established the Northern Ireland Human Rights Commission, listed amongst its functions the obligation to ‘do all that it can to ensure the establishment’ of the Joint Committee. A similar provision is contained in s 8(i) of the Human Rights Commission Act 2000, establishing the Irish Human Rights Commission, requiring it to ‘take whatever action is necessary to establish and participate’ in the Joint Committee. The Joint Committee decided at its first official meeting on 8 November 2001 that the two Commissions meeting in plenary would constitute the Joint Committee: <http://www.ihrc.ie/documents/article.asp?NID=74>, para 3.0.

29 At the Joint Committee's first official meeting on 8 Nov 2001, a range of issues was identified, presenting human rights concerns both north and south of the border. These included racism, asylum seekers, children's issues, education rights, poverty, disability, issues connected to the border, an audit of human rights instruments north and south: ibid para 4.0.

30 Minutes of the Third Ordinary Meeting of the Joint Committee (22 03 2002): <http://www.nihrc.org/dms/data/NIHRC/attachments/dd/files/46/Minutes_of3rd_Ordinary_Meeting.doc>, para 3.2. The membership of this sub-committee originally included Paddy Kelly (convenor), Olive Braiden, Martin Collins, Michael Farrell, Tom Hadden, Nuala Kelly (alternate member) and Inez McCormack. The Presidents of the two Commissions, Donal Barrington and Brice Dickson, were entitled to attend, ex officio.,+para+3.2.+The+membership+of+this+sub-committee+originally+included+Paddy+Kelly+(convenor),+Olive+Braiden,+Martin+Collins,+Michael+Farrell,+Tom+Hadden,+Nuala+Kelly+(alternate+member)+and+Inez+McCormack.+The+Presidents+of+the+two+Commissions,+Donal+Barrington+and+Brice+Dickson,+were+entitled+to+attend,+ex+officio.>Google Scholar

31 Another sub-committee was also established on racism. Together these two sub-groups constituted the focus of much of the work of the Joint Committee to date. One substantial output of the Committee's work on racism was its publication of a user's guide to the International Convention on the Elimination of All Forms of Racial Discrimination: Joint Committee of the Irish Human Rights Commission and the Northern Ireland Human Rights Commission, A User's Guide to the International Convention on the Elimination of Racial Discrimination (09 2003) <http://www.ihrc.ie/documents/article.asp?NID=63>..>Google Scholar

32 Joint Committee of the Northern Ireland Human Rights Commission and the Irish Human Rights Commission, A Charter of Rights for the Island of Ireland: Pre-Consultation Paper (05 2003): <http://www.nihrc.org/dms/data/NIHRC/attachments/dd/files/67/preconsult_COR.pdf>..>Google Scholar

33 Minutes of the Eighth Meeting of the Joint Committee (11 04 2003): <http://www.nihrc.org/dms/data/NIHRC/attachments/dd/files/46/11th_April_2003_-_8th_Ordinary_meeting_-_Belfast.doc>, para 3.3.4.,+para+3.3.4.>Google Scholar The views of relevant governmental departments were also sought: Minutes of the Thirteenth Meeting of the Joint Committee (11 12 2003): <http://www.nihrc.org/dms/data/NIHRC/attachments/dd/files/46/13th_Ordinary_Meeting_Draft_minutes_of_Joint_Committee_September1.doc>, para 4.1.1.,+para+4.1.1.>Google Scholar

34 The initial projection was to open the consultation process up ‘around the end of 2003’: Pre-Consultation Paper (n 32) para 2. However, as is explained below, this broader consultation has not happened to date.

35 ibid para 5.

36 ibid para 8

37 ibid para 10.

38 ibid para 11.

39 ibid para 16.

40 ibid para 20.

41 ibid para 22.

42 The European Union and possibly the United States of America are mooted as further possible ‘guarantors’ of the principles: ibid para 17.

43 The Committee also proposed that this model might draw its content from the Belfast Agreement, the Mitchell Principles of Democracy and Non-Violence and the Code of Standards in Public Life, Report of the International Body on Arms Decommissioning (22 01 1996) para 20: <http://cain.ulst.ac.uk/events/peace/docs/gm24196.htm>..>Google Scholar

44 Other rights potentially mooted include equality rights; children's rights; rights of the elderly; rights of persons with a disability; economic, social and cultural rights dealing with housing, health and poverty, education and language issues. References to mutual respect for the identity and ethos of the two communities; the rejection of violence; equivalency of rights protection between the two jurisdictions; and a commitment to eradicate racism are suggested along with provisions relating to criminal justice; emergency legislation, environmental issues, migration, and asylum are also suggested.

45 Examples given by the Committee of such programmes include the Vienna Declaration and Programme of Action 1993, UN Doc A/CONF 157/23 (12 07 1993) <http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.157.23.En?OpenDocument>, and the World Conference on Women's Rights: <http://www.un.org/womenwatch/daw/beijing/platform/>.,+and+the+World+Conference+on+Women's+Rights:+.>Google Scholar

46 The pre-consultation paper states that implementation would be by ‘regular monitoring…by an independent body, akin perhaps to the work currently being done by the Committee on Economic, Social and Cultural Rights when it looks at how States are implementing the UN's International Covenant on Economic, Social and Cultural Rights’: Pre-Consultation Paper (n 32) para 17.

47 Pre-Consultation Paper (n 32) para 23.

48 The following feedback on the results of the pre-consultation process was given by the President of the Irish Human Rights Commission at a conference on the Charter of Rights in University College Cork, 2 Oct 2004 (a copy is available at the offices of the Irish Human Rights Commission, Jervis House, Jervis Street, Dublin 2).

49 The Alliance Party and Sinn Féin.

50 Delay in the reappointment of members to the Northern Ireland Human Rights Commission (NIHRC) led to difficulties in the operation of the Joint Committee from 2004 to 2005, during which attendance at meetings was substantially depleted: See Minutes of 12th, 13th, and 14th Meetings of the Joint Committee in March, September and December 2004 respectively. The 15th Meeting of the Joint Committee was not convened until October 2005 when it was decided to consider de novo progress on the charter: <http://www.nihrc.org>. There was some discussion at a conference organized by University College Cork and the University of Leeds in October 2004, ‘A Charter of Rights for the Island of Ireland—One Day Conference to Debate and Explore the Issues’ (2 10 2004)Google Scholar, and follow-up debate on Slugger O'Toole: <http://www.sluggerotoole.com/archives/2004/10/charter_debate_7.php; http://www.sluggerotoole.com/archives/2004/10/charter_debate_5.php> (last accessed 3 07 2007).+(last+accessed+3+07+2007).>Google Scholar

51 Minutes of the 16th Meeting of the Joint Committee of Representatives of the Two Human Rights Commissions on the Island of Ireland (18 01 2006) paras 3.4 and 3.5: <http://www.nihrc.org/dms/data/NIHRC/attachments/dd/files/46/Joint_Committee_meeting_minutes_(January_2006)1.doc>..>Google Scholar

52 Submission of John Spellar, Northern Ireland Office (4 12 2003)Google Scholar and Dr Ursula Kilkelly, Faculty of Law, UCC (1 09 2003).Google Scholar

53 Pre-Consultation Paper (n 32) para 5.

54 Interview with civil servant, 29 Nov 2004.

55 Sarkin, J, ‘The Drafting of South Africa's Final Constitution from a Human Rights Perspective’ (1999) 47 AJCL 67.CrossRefGoogle Scholar

56 See Northern Ireland Human Rights Commission, Summary of Submissions on a Bill of Rights (07 2003) 19Google Scholar. See also House of Commons, Joint Committee on Human Rights (Fourteenth Report), paras 70–3: <http://www.publications.parliament.uk/pa/jt200203/jtselect/jtrights/132/13202.htm>.

57 See Livingstone, S and Murray, R, Evaluating the Effectiveness of National Human Rights Institutions: The Northern Ireland Human Rights Commission with Comparisons from South Africa (01 2005) 97–9Google Scholar. A Bill of Rights Forum has now been established composed of political party and civil society representatives.

58 There is often a presumption that a Bill or Charter of rights will provide safeguards, but as Alston and Darrow argue, ‘causality can be difficult to demonstrate. The role of other factors, such as population size, inequality type of political regime, the extent to which the views of citizens can be effectively represented, and the extent to which the state is linked into international economic and trade networks will all need to be taken into account’: Darrow, M and Alston, P, ‘Bills of Rights in Comparative Perspective’ in Alston, P (ed), Bills of Rights (OUP, Oxford, 1999) 466–7.Google Scholar

59 As Combat Poverty argued in its submission to the Joint Committee: ‘…before a charter text is undertaken it needs to be shown in more concrete terms how preparing yet another text at this point would add value and coherency to existing rights protections on the island rather than adding possible unnecessary elements of confusion, overlapping and complexity’ (11 2003) para 3: <http://www.combatpoverty.ie/publications/submissions/2003_Sub_HumanRightsCommission.pdf>..>Google Scholar

60 Interview with member of political party, Dec 2004.

61 See British Irish Rights Watch, Director's Report (07/08 2003).Google Scholar

62 For a preliminary analysis, see O'Connell, D, Comiskey, S, Meeneghan, E, and O'Connell, P, ECHR Act 2003: A Preliminary Assessment of Impact (Law Society of Ireland, Dublin, 2006).Google Scholar

63 See Russell, PH, ‘The Political Purposes of the Canadian Charter of Rights and Freedoms’ (1983) 61 Canadian Bar Rev 30.Google Scholar

64 Livingstone, S, ‘Human Rights in Northern Ireland-In From the Margins?’ in Bacik, I and Livingstone, S, Towards a Culture of Human Rights in Ireland (Cork University Press, Cork, 2001) 89.Google Scholar

65 The section stipulates further specific measures to be undertaken by the Irish Government, including the establishment of a Human Rights Commission, with a mandate equivalent to that of the Northern Irish Human Rights Commission; ratification of the Framework Convention on National Minorities; implementation of enhanced employment equality legislation and equal status legislation; and to continue to take active steps to demonstrate its respect for the different traditions in the island of Ireland.

66 ‘The equivalence requirement only requires the strengthening of existing Irish rights guarantees to match the level of protection available in Northern Ireland. Therefore, it would appear that achieving equivalence is solely a matter for Ireland. The Agreement contains no parallel legal requirement to ensure an equivalence of rights in Northern Ireland as that applying in Ireland. The Agreement cannot be read as supporting an interpretation that would require the equivalence requirement to apply throughout the whole island’. O'Cinnéide, C, Equivalence in Promoting Equality: The Implications of the Multi-Party Agreement for the Further Development of Quality Measures for Northern Ireland and Ireland (The Equality Authority, Dublin, 2005) 35.Google Scholar

67 Art 2(b) and 5(b) Anglo Irish Agreement (n 8).

68 Morgan (n 1) 394. See discussion on the Anglo-Irish Agreement (n 8).

69 Interview with political party representative, Dec 2004. Other political party representatives also indicated a ‘certain degree of sympathy’ with Unionist views ‘that at times Irish governments can be quite keen on certain rights introduced in Northern Ireland which they are not in the least bit keen on seeing introduced in the Republic’, Interviews of 29 Nov 2004 and 1 Dec 2004.

70 Interview of 29 Nov 2004.

71 ‘By virtue of Article 2 of the British Irish Agreement, where the two governments pledged “to support, and where appropriate’ implement the Multi-Party Agreement's provisions, this equivalence requirement binds Ireland’: O'Cinneide (n 66) 32.

72 ‘The Irish State, at least in principle, has agreed to measure its protection of fundamental rights against the yardstick of an as yet to be drafted Bill of Rights from another neighbouring jurisdiction. The scope of this obligation could be interpreted in different ways, and the depth of the Irish government's commitment is unclear in this regard, and may indeed remain that way’: Byrne, R, ‘Changing Modalities: Implementing Human Rights Obligations in Ireland after the Good Friday Agreement’ (2001) 70 Nordic J of Intl L 1, 19.CrossRefGoogle Scholar

73 ‘… Some people are saying that there is a blank cheque here for all times (with the principle of equivalence) but there can't be really because if in Northern Ireland they decided on some area with which we didn't agree in the South well then it doesn't mean that we are committed to follow their lead regardless’: Interview with civil servant, 29 Nov 2004.

74 O'Cinnéide identifies a number of such areas, focusing in particular on equality legislation (n 66) section 7. One representative of a civil society organization expressed the view that the full potential of the equivalence provision has yet to be fulfilled by the Irish Government: ‘So it really seems to me that what would be really interesting to go for in the Republic would be to look at what rights are better protected in the North than they are here, and to get that and use it because that (equivalence) seems to be a fairly strong commitment actually and it almost seems as if the Republic's government has been let off the hook on this one’, interview of 29 Nov 2004.

75 The Convention was incorporated by means of the European Convention on Human Rights Act 2003, which came into force in the Republic on 31 December 2003 (Act No 20 of 2003): <http://www.oireachtas.ie/documents/bills28/acts/2003/a2003.pdf>. There was widespread criticism of the method of ‘interpretive’ incorporation adopted by the legislature in the Act, which makes the Convention guarantees subordinate to the Constitution and contains very limited remedies: See generally, Egan, S, ‘The European Convention on Human Rights Act 2003: A Missed Opportunity for Domestic Human Rights Litigation’ (2003) 25 Dublin University Law Journal 230–48 (DULJ)Google Scholar; O'Connell, D, ‘The ECHR Act 2003: A Critical Perspective’ in Kilkelly, U (ed), The ECHR in Irish Law (Jordans, Bristol, 2004) 111Google Scholar; and G Hogan, ‘Incorporation of the ECHR: Some Issues of Methodology and Process’, ibid 13–34.

76 The Human Rights Commission was established in July 2001. Its powers and functions are set forth in the Human Rights Commission Acts 2000 and 2001: <http://www.ihrc.ie>.

77 The Irish Government ratified the Framework Convention on 7 May 1999.

78 See the Employment Equality Act 1998 and the Equal Status Act 2000. These two pieces of legislation outlaw discrimination in employment, vocational training, advertising, collective agreements, the provision of goods and services and other opportunities to which the public generally have access on nine distinct grounds. The Employment Equality Act 1998 provided for the establishment of two distinct bodies, namely, the Equality Authority and the Equality Tribunal. The latter (formerly known as the Office of the Director of Equality Investigations) is an independent statutory body, established to investigate or mediate complaints of discrimination. The Equality Tribunal is a semi-State body established to work towards elimination of unlawful discrimination as defined in the legislation, to promote equality of opportunity and to provide information to the public on equality legislation. It can also advise and support persons in bringing applications to the Equality Tribunal.

79 Morgan (n 1) 404.

80 ibid 36.

81 ibid 72.

82 This is the phrase coined by O'Cinneide in his seminal work (n 66).

83 Livingstone, S, ‘The Need for a Bill of Rights in Northern Ireland’ (2001) 52 Northern Ireland Legal Quarterly 269 (NILQ).Google Scholar

84 Report of the Constitution Review Group 1996 (Government Publications, 1996).Google Scholar

85 ‘The Charter of Rights must reflect an imaginative and meaningful commitment to progressive human rights, rather than a lowest common denominator. The island of Ireland does not need more aspirational, programmatic and persuasive human rights tools—it needs an effective and accountable framework for enforcement’: ICCL, Submission to the Joint Committee (01 2004) para 1.2.Google Scholar

86 Interview with representative of civil society organization, 29 Nov 2004.

87 McCrudden, C, ‘Not the Way Forward: Some Comments on the Northern Ireland Human Rights Commission's Consultation Document on a Bill of Rights for Northern Ireland’ (2001) 52 NILQ 372Google Scholar; Livingstone, and Murray, (n 57) 107–8.Google Scholar

88 Interview with member of political party, 6 Dec 2004.

89 Interview with civil servant, 29 Nov 2004.

90 Austen Morgan has commented that: ‘At best, it [the Charter] amounts to political endorsement by democratic parties of the human rights protection created otherwise’ (n 1) 404.Google Scholar

91 Interview with civil servant, Dec 2004.

92 Interview with member of political party, 6 Dec 2004.

93 Livingstone, and Murray, (n 57) 100–2.Google Scholar

94 ibid, (n 57) 101; and see also Joint Committee on Human Rights, Fourteenth Report. Work of the Northern Ireland Human Rights Commission (15 July 2003) HL 142, HC 132, p 34.

95 Interview with civil servant, 29 Nov 2004.

96 See, eg, initiatives taken by the Nordic countries through the vehicle of the Nordic Council: <http://www.norden.org>; Wendt, F, Cooperation in the Nordic Countries: Achievements and Obstacles (Almqvist & Wiksell International, Stockholm, 1981) 243–54Google Scholar; Qvortrup, M and Hazell, R, The British Irish Council: Nordic Lessons for the Council of the Isles (Constitution Unit, London, 1998)Google Scholar; Alfredsson, G, ‘Minimum Requirements for a New Nordic Sami Convention’, (1999) 68 Nordic J of Intl L 397.CrossRefGoogle Scholar

97 See paras 1 and 5 of Strand Two of the Agreement, which set out the functions of the Council. The various areas of potential cooperation are set out in an Annex and include agriculture, education, transport, environment, waterways, social security/social welfare, tourism, relevant EU Programmes such as SPPR, INTERREG, Leader II and their successors, inland fisheries, health, urban, and rural development.

98 The British–Irish Governmental Conference and its Secretariat were established in December 1999 by the British–Irish Agreement with the purpose of promoting bilateral cooperation between the United Kingdom and Ireland. The Conference replaced the Anglo-Irish Conference established by the Anglo-Irish Agreement 1985: <http://www.nio.gov.uk/index/keyissues/the-agreement/british_irish_intergovernmental_conference.htm>.

99 See para 6 of Strand Three, Multi-Party Agreement (MPA).

100 Para 19 of Strand Two of the Agreement mandated the North/South Ministerial Council to give consideration to the establishment of ‘… an independent consultative forum appointed by the two Administrations, representative of civil society, comprising the social partners and other members with expertise in social, cultural, economic and other issues’. See R Wilson, North–South Civic Relationships: Where Next?: <http://www.crossborder.ie/pubs/wilson2002.pdf>.

101 Tannam, E, Cross-Border Cooperation in the Republic of Ireland and Northern Ireland (Macmillan, Basingstoke, 1999) 5CrossRefGoogle Scholar; Laffan, B and Payne, D, European Integration and Domestic Territorial Politics: INTERREG III and Cross-Border Co-operation (UCD Geary Institute for the Study of Social Change: Discussion Paper Series, Dublin, 2004): <http://www.ucd.ie/geary/publications/2004/integration.pdf>, 67.Google Scholar

102 See generally, McCall, C, ‘From Barrier to Bridge: Reconfiguring the Irish Border after the Belfast Good Friday Agreement’ (2002) 53 NILQ 479Google Scholar. See also Implementing the Agreement: The North–South Bodies Five Years On (UCD and QUB, Mapping Frontiers, Crossing Pathways Conference Report, 27 May 2005, UCD, Dublin): <http://www.ucd.ie/ibis/con_rep4.pdf>.

103 P Clarke, The Foot-and-Mouth Disease Crisis and the Irish Border (Centre for Cross-Border Studies, Jan 2002): <http://www.crossborder.ie/pubs/footandmouth.pdf>. ‘Well I suppose there is a huge chunk of agriculture which isn't covered officially but has de facto become part of crossborder arrangements—I mean because of “foot and mouth” for example. I think there was a degree of coming together on things like environmental protection matters—I mean from being on the environmental committee and having followed that—I mean that to me was one of those classic examples—I can't actually remember even at the very beginning DUP members getting particularly shirty when Sam Foster discussed environmental protection because its so patently obvious that its relevant…’: Interview with member of political party, 29 Nov 2004.

104 Quoted in McCall (n 102) 493.Google Scholar

105 Interview with representative of civil society organization, 29 Nov 2004.

106 Interview with member of political party, 29 Nov 2004.

107 Interview with member of political party, 6 Dec 2004.

108 T Hadden, ‘Joint Protection of Human Rights in the Island of Ireland’, Unpublished paper presented at the First Annual Student Conference, NUI Galway, 2002.

109 ICCL, Response to the pre-consultation paper on a charter of rights for the island of Ireland (Jan 2004) (n 85).

110 As Colin Harvey has argued: ‘The idea of a Bill of Rights exerts a powerful hold.… At the most idealistic level, a Bill of Rights might promote the idea of consensual constitutionalism and express the common values of a political community.… the notion that there are such things as common values is open to question. Merely asserting their existence does not answer the complex questions which may arise. Common values may be little more than the expression of elite preferences, with minimal popular participation. Unreflective references to common values can perpetuate the vague urge for unachievable and pre-modern forms of consensus in complex and pluralistic societies. Deliberative democracy is easy to defend in theory, but rather harder to do in practice’, Harvey, C, ‘The Politics of Rights and Deliberative Democracy: The Process of Drafting a Northern Irish Bill of Rights’ [2001] EHRLR 48, 50.Google Scholar

111 Livingstone and Murray (n 57). See Sarkin, J, ‘The Drafting of South Africa's Final Constitution from a Human Rights Perspective’ (1999) 47 AJCL 67, 86CrossRefGoogle Scholar; Gloppen, S, South Africa. The Battle over the Constitution (Ashgate, Aldershot, 1997) 65Google Scholar; Sparks, A, Tomorrow is Another Country. The Inside Story of South Africa's Negotiated Revolution (University of Chicago Press, Chicago, 1994).Google Scholar

112 Interview with member of political party, 6 Dec 2004.

113 The specific example of the Committee on Economic, Social and Cultural Rights, which monitors implementation of the International Covenant on Economic. Social and Cultural Rights is given by the Joint Committee: ibid 17.

114 Alliance Party submission to the Joint Committee on its pre-consultation paper, above.

115 The pre-consultation paper simultaneously analogizes this model with the Vienna Declaration and Programme for Action, for example, agreed at the World Conference on Human Rights in 1993 and the International Covenant on Economic, Social and Cultural Rights. The former document is not legally binding on States, while the commitment to progressively implement the rights in the ICESCR is legally binding by virtue of Art 2 thereof: see paras 18 (e) and (a) respectively.

116 The South African Development Council (SADC) is an alliance of South African States, established by treaty in 1992. The objectives of the organization include that of achieving development and economic growth, alleviating poverty, enhancing the standard and quality of life of the people of Southern Africa and supporting the socially disadvantaged through regional integration. The organization also aims to evolve common political values, systems and institutions; promote and defend peace and security; promote self-sustaining development on the basis of collective self-reliance, and the interdependence of Member States; achieve complementarity between national and regional strategies and programmes; promote and maximize productive employment and utilization of resources of the Region; achieve sustainable utilization of natural resources and effective protection of the environment; and strengthen and consolidate the longstanding historical, social and cultural affinities and links among the people of the Region: <http://www.sadc.int/home.php>.

117 <http://www.sardc.net/widsaa/sgm/1999/sgm_genderdec.html>. See also the Addendum on the Prevention and Eradication of Violence Against Women and Children in 1998: <http://www.sardc.net/widsaa/sgm/1999/sgm_eradviol.html>.

118 Banda, F, ‘Going it Alone? SADC Declarations and the Gender Debate’ (2002) J of African L 259 (JAL)CrossRefGoogle Scholar. The Charter of Fundamental Rights adopted by the SADC in 2003 is also noteworthy. Its objective is to facilitate the formulation and harmonization of policies which contribute to the creation of employment opportunities and to facilitate labour mobility. Under Article 16(3) of the Charter, all Member States are obliged to submit regular reports to the Secretariat. Under Article 16(4), the most representative organization of employers and workers must be consulted in preparing reports under Art 16(3).

119 See, ‘SADC Ministers Endorse Draft Gender Protocol’: South African News Features: No 108, Dec 2006: <http://www.sardc.net/editorial/newsfeature/061081206.htm>. For information on the rationale for the Protocol, see background document: <http://www.sarpn.org.za/documents/d0001444/index.php>.

120 McCrudden, C, ‘Mainstreaming Equality in the Governance of Northern Ireland’ (1999) 22 Fordham J Intl L 1696, 1699.Google Scholar

121 ‘… a programmatic approach does not rely exclusively on legal remedies but operates to shape how legislation, policy and practice are developed and implemented’: McKeever, G and Aoiláin, F Ní, ‘Thinking Globally, Acting Locally: Enforcing Socio-Economic Rights in Northern Ireland’ (2004) 2 EHRLR 158, 166.Google Scholar

122 For a synopsis of mainstreaming measures in the Republic and in Northern Ireland, see O'Cinnéide, (n 66) 50–5.Google Scholar

123 It is open to the Commission to investigate the extent to which a public authority is compliant with a scheme and to investigate non-compliance on receipt of complaints from individuals. The Commission can again refer a case to the Secretary of State where the authority fails to respond to the recommendations of the Commission following any such investigation. Judicial Review and auditing mechanisms are also possible.

124 ‘Equality mainstreaming in Northern Ireland is therefore founded on a firm statutory basis with a strong enforcement mechanism. … The adoption of equality mainstreaming strategies in Ireland is not a sufficient stopgap for the absence of a duty, because of the absence of any enforcement mechanism, or of any legal obligation requiring authorities to take mainstreaming initiatives seriously’: O'Cinnéide, (n 66) 54–5.Google Scholar

125 McKeever and Né Aoiláin (n 121).

126 In its submission to the Joint Committee on the Pre-Consultation Paper, the Conference of Religious of Ireland suggested a system of mainstreaming economic, social and cultural rights which would also involve the setting of concrete targets which if not achieved would be justiciable on a class-action basis or similar basis: CORI submission, 24 July 2003.

127 Combat Poverty was sceptical of such an approach in its submission to the Joint Committee on the pre-consultation paper, noting that: ‘The creation of a single all-Ireland enforcement mechanism for a single all-island Charter would be a highly political decision dependent on the approval of the two governments and the Northern Ireland Executive’; and further that ‘The Joint Committee needs to set out more convincingly why it thinks a national level monitoring body would be more successful in compelling or persuading governments than the UN Committee [Committee on Economic, Social and Cultural Rights], which after all was established under the terms of a major international human rights treaty to which both sides have voluntarily adhered.’

128 The comments of John Spellar, Minister of State for Northern Ireland, in his submission to the Joint Committee in 2003 are particularly germane here in relation to the content of rights proposed by the Joint Committee in its pre-consultation document where he warned that: ‘Such detailed proposals as those on the use of emergency laws or the availability of continuing education are surely for politicians to take on the basis of a democratic mandate. Enshrining so much in an enforceable charter could curtail a government's ability to adapt to changing circumstances or set spending priorities and the ability of their electorates to hold them to account’ (n 57) (4 Dec 2003).

129 Pre-Consultation Paper (n 32).

130 ibid para 16(a).

131 Similar submissions were made by Mental Health Ireland, the Irish Council for Civil Liberties (ICCL) and the Alliance Party.

132 Comments of the Confederation of British Industry, 7. While endorsing the notion of a Charter with enforcement and monitoring mechanisms in its submission to the Joint Committee, Age and Opportunity Ireland noted the potential value of a declaratory Charter of Rights, ‘The content of a Charter agreed by the two Human Rights Commissions would have a strong inspirational role and significant moral authority. Even if it provided no mechanisms for the implementation of rights, it would be a benchmark by which the implementation of services could be measured.’

133 McCrudden (n 120) 374.Google Scholar

134 This is clearly the strategy adopted in regard to the European Union Charter of Fundamental Rights where the objective of the drafters was to draw up a text that could be legally binding and enforceable, see Lord, Goldsmith, ‘A Charter of Rights, Freedoms and Principles’ (2001) 38 CML Rev 1201.Google Scholar

135 See generally, Darrow and Alston (n 58) 498502.Google Scholar

136 See, eg, the powerful critique by Gearty of the European Court of Human Rights: Gearty, C, ‘Democracy and Human Rights in the European Court of Human Rights: A Critical Appraisal’ (2000) 51 NILQ 381.Google Scholar

137 This emphasis on raising awareness of fundamental rights was a central objective in the drafting of the EU Charter of Fundamental Rights, the express purpose of which was to make existing rights within the Union more visible, thereby deepening and strengthening the culture of rights within the European Union. The Preamble to the Charter states: ‘To that end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in the charter.’

138 Interview with member of political party, 6 Dec 2004.

139 This phrase was used by one member of a political party during our interview in discussing the value of an enforcement mechanism for the Charter, interview of 1 Dec 2004.

140 ibid.

141 Interview of 29 Nov 2004.

142 Case T–54/99 Max.mobil Telekommunikation Service GmbH v Commission [2002] ECR II–00313.Google Scholar

143 See the comments of Advocate General Tizzano in the BECTU case: ‘Admittedly, like some of the instruments cited above, the Charter of the Fundamental Rights of the European Union has not been recognised as having genuine legislative scope in the strictest sense. In other words, formally, it is not in itself binding. However, without wishing to participate here in the wide-ranging debate now going on as to the effects which, in other forms and by other means, the Charter may nevertheless produce, the fact remains that it includes statements which appear in large measure to reaffirm rights which are enshrined in other instruments … I think therefore that, in proceedings concerned with the nature and scope of a fundamental right, the relevant statements of the Charter cannot be ignored; in particular, we cannot ignore its clear purpose of serving, where its provisions so allow, as a substantive point of reference for all those involved—Member States, institutions, natural and legal persons—in the Community context. Accordingly, I consider that the Charter provides us with the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right’: Case C–173/99, BECTU v Secretary of State for Trade and Industry (2001) All ER (EC) 647Google Scholar. Advocates General Jacobs and Leger have also relied on the Charter in cases concerning biotechnology (C–377/98 Netherlands v Parliament and Council [2001] ECR II–07079Google Scholar) and the right of access to EU documents contained in Art 42 of the Charter (C–353/99, Council v Hautala [2001] ECR I–09565).Google Scholar

144 In 1995, the Heads of Government adopted the Millbrook Commonwealth Action Programme which outlines a tripartite plan to fulfil more effectively the commitments in the Harare Commonwealth Declaration. In the event of a member violating the Harare Principles, the organization's responses may include a public expression of disapproval from the Secretary-General, the appointment of a Commonwealth envoy and the suspension of participation in all Commonwealth meetings. A Commonwealth Ministerial Group on the Harare Declaration was also established under the Millbrook Action Programme in order to deal with serious or persistent violations of the principles contained in the Harare Declaration.

145 The minutes of a meeting of the Joint Committee held on 27 February 2007 in Belfast (20th meeting of the Joint Committee) indicate that the Joint Committee proposes to resubmit a reduced bid to both governments for funding to engage a researcher to review existing research and compile a paper outlining various models and options for consultation. It goes on so say in paragraph 4.7 that ‘The paper would form the basis of a consultation event on models and options for a Charter of Rights, possibly in 2008, when the Bill of Rights Forum in Northern Ireland has concluded its work’, <http://www.ihrc.ie/_fileupload/news/JointCommittee20th.doc>.

146 Interview with civil servant, Nov 2004. Further, ‘I think that because we want to establish, we want NIHRC to establish and if we can get around to having a Round Table Bill of Rights Forum for the Northern Ireland political parties and wider civic society … that would come to some sort of consensus on what would be in a Bill of Rights—and it is fundamental for the effectiveness that that consensus is widespread–until we get to that point, we do not really know what the substance of the Charter of Rights would be’.

147 Interview with member of political party, Dec 2004.

148 Interview with representative of civil society organization, 24 Nov 2004.

149 Hennessy (n 2) 147. Several members of different political parties that we interviewed each mentioned a preference for legislation in each jurisdiction rather than an overarching mechanism in discussing the mechanics of an all-island Charter of Rights: interviews held on 6 December 2004, 29 November 2004, and 1 December 2004.

150 Manning (n 47) 9.

151 Smith, A, ‘The Drafting Process of a Bill of Rights for Northern Ireland’ [2004] Public Law 526, 533.Google Scholar

152 As Combat Poverty argued in its submission to the Joint Committee: ‘… the development of an all-island charter should be informed by a broad-based public education programme on the concepts and content of economic, social and cultural rights, on the options for implementation and so on. There is a challenge to popularize the understanding of rights and to simplify the technical and specialist language into more accessible and people-friendly terminology. This is necessary and vital to enhance the wider public's participation in charter process’: (n 132).

153 ‘If the public feel they have ownership and have participated in helping to draft a Bill of Rights, then it is likely to increase legitimacy. This idea of public, participative democracy has helped countries that have adopted a Bill of Rights to secure its acceptance among the judiciary, politicians, administrators and public bodies’: ibid 532.

154 Penner, R, ‘The Canadian Experience with the Charter of Rights: Are there lessons from the United Kingdom?’ [1996] Public Law 104, 107.Google Scholar

155 McCrudden has suggested it should be considered as a worthy type of approach in regard to the drafting of the Northern Ireland Bill of Rights (n 87) 384.Google Scholar

156 Again, the experience of the NIHRC is illustrative here whose efforts to mount a public advertising campaign regarding the Bill of Rights had to be stalled pending a budgetary increase from the Northern Ireland Office, Smith (n 151) 533.Google Scholar

157 The minutes of the 19th meeting of the Joint Committee of 9 November 2006 indicate that this process is already well in train. Para 5.1 indicates that the Irish Government has given a commitment to providing discrete funding to the Committee so as to enable it to have a dedicated secretariat. In the meantime, the Irish Human Rights Commission (IHRC) is providing administrative support to the Joint Committee's sub-committee on racism, while the NIHRC is providing administrative support to the sub-committee on the Charter (para 5.4), Minutes on file at the IHRC office, Jervis Street, Dublin 1.Google Scholar

158 This suggests ‘it could be a charter which sets out a number of basic principles concerning rights as well as requiring a “programmatic” (i.e. a progressively developing) approach to their implementation. This would mean that, subject to monitoring conducted by an independent body, some discretion would be left to the governing authorities in both parts of Ireland to develop measures over time which would make the rights in question a reality for the people living there’: Pre-Consultation document (n 32) 6.Google Scholar

159 Pre-Consultation document (n 32) 13.Google Scholar

160 O'Cinnéide (n 66) 72.Google Scholar

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