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INTERNATIONALISATION AND CONSTITUTIONAL BORROWING IN DRAFTING BILLS OF RIGHTS

Published online by Cambridge University Press:  28 November 2011

Anne Smith
Affiliation:
Lecturer in Human Rights Law, University of Ulster, Transitional Justice Institute (Northern Ireland). .

Abstract

This article looks at the recent phenomena of internationalisation and constitutional borrowing in drafting Bills of Rights. Using South Africa, Canada and Northern Ireland as its focus, this article posits key lessons to be considered in any society hoping to use these two strategies to best effect in designing indigenous Bills of Rights. This contribution makes the case that while these are viable strategies in equality and other rights provision drafting, before embarking on such trajectories, the local context must be considered. In short, effective and sensitive interaction between the ‘local and the global’ can result in a more rewarding project when those involved in formulating an indigenous Bill of Rights simultaneously reflect best international practice. The article is supported in its conclusions by a series of semi-structured interviews with key players involved in the drafting process in Northern Ireland and Canada.

Type
Article
Copyright
Copyright © British Institute of International and Comparative Law 2011

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References

1 Corder, H and du Plessis, L, Understanding South Africa's Transitional Bill of Rights (Kenwyn: Juta 1994) 47Google Scholar.

2 Davis, D, ‘Constitutional borrowing: The Influence of legal culture and local history in the reconstitution of comparative influence: The South African experience’ (2003) 1(2) Intl J of Constitutional L 181CrossRefGoogle Scholar.

3 Hirschl has described this phenomenon as a ‘booming industry’. Hirschl, R, Towards Juristocracy The Origins and consequences of the new constitutionalism (Harvard University Press 2004) 220Google Scholar.

4 McCrudden, C, ‘A Common Law of Human Rights: Transnational Judicial Conversations on Constitutional Rights’ (2000) 20(4) Oxford J of L Studies 499CrossRefGoogle Scholar. See also Slaughter, AM, ‘Judicial Globalization’ (2000) 40 VJIL 1103Google Scholar; ‘A Typology of Transjudicial Communication’ (1994–1995) 29 U of Richmond L Rev 99; L'Heureux-Dubé, C, ‘The Importance of Dialogue: Globalization and the International Impact of the Rehnquist’ (1998–1999) 34 Tulsa LJ 15Google Scholar.

5 I write in April 2011.

6 For a detailed discussion on the theory and typology of ‘constitutional borrowing’ see the seminal work of Tebbe, N and Tsai, R, ‘Constitutional Borrowing’ (2009) 108 Michigan L Rev 459Google Scholar.

7 Alder, M, ‘Can Constitutional Borrowing be Justified: A Comment on Tushnet’ (1998) U of Pennsylvania J of Constitutional L 350, 351Google Scholar. Alder's use of the word ‘constitution’ has been replaced with the ‘Bill of Rights’ and ‘international treaty’ to make it specific to this article.

8 Tebbe and Tsai (n 6) 504.

9 Epstein, L and Knight, J, ‘Constitutional Borrowing and nonborrowing’ (2003) Intl J of Constitutional L 196CrossRefGoogle Scholar.

10 Glenn, P, ‘Persuasive Authority’ (1987) 32 McGill LJ 261, 293, 297–298Google Scholar.

11 Ginsburg, T, Judicial Review in New Democracies Constitutional Courts in Asian Cases (CUP 2003) 17CrossRefGoogle Scholar.

12 Klug, H, Constituting Democracy Law, Globalism and South Africa's Political Reconstruction (CUP 2000) 48CrossRefGoogle Scholar.

13 V Hart, ‘The Contagion of Rights: Constitutions as Carriers’ in P J Hanafin and M S Williams (eds), Identity, Rights and Constitutional Transformation (Ashgate 1999) 39.

14 Printz v United States 117 SC 2365 (1997).

15 McCrudden (n 4) 512.

16 ibid. For further information on the choice not to transplant, arguably, one of the most common methods of borrowing, see Tebbe and Tsai (n 6).

17 Davis (n 2) 195.

18 Theoretically, although there should not be a substantial divergence regarding the core rights to be included in a Bill of Rights, as the case studies illustrates, difficulties arises in the precise formulation and the various kinds of rights to be included in a Bill of Rights.

19 The terms ‘cherry picking’ and ‘forum shopping’ are used by McCrudden (n 4) 507 and in his chapter C McCrudden, ‘Consociationalism, Equality and Minorities in the Northern Ireland Bill of Rights Debate: The Role of the OSCE High Commissioner on National Minorities’ in Morison, J, McEvoy, K and Anthony, G (eds), Judges, Transition and Human Rights Cultures (OUP 2007) 318CrossRefGoogle Scholar.

20 Apartheid is the Afrikaans word for separateness.

21 Chaskalson, A, ‘From wickedness to equality: The moral transformation of South African law’ (2003) 1(4) Intl J of Constitutional L 590CrossRefGoogle Scholar.

22 Using such racial terminology is problematic. Under apartheid, South African society was divided into four ‘racial groups’—whites, coloureds, Indians and Africans. In this account, the term ‘black’ means people of colour and ‘white’ means non-black people. Spitz and Chaskalson state such terminology has the unfortunate effect of perpetuating the usage of apartheid's racial terminology. Spitz, R and Chaskalson, M, The Politics of Transition A Hidden History of South Africa's Negotiated Settlement (Hart 2002) 4Google Scholar.

23 Some examples of the discriminatory legislation include the Population Registration Act 30 of 1950 which controlled where South Africans were born; the Group Areas Act of 1950 provided for the segregation of different racial groups in different areas and resulted in a number of forced removals. For further information on these and other legislation. See ibid.

24 Bawa, N, A Judiciary in the midst of Transformation February 1999, commissioned by the Standing Advisory Commission on Human Rights, 4Google Scholar.

25 ibid 3.

26 South African Law Commission, Working Paper 25 Project 58 Group and Human Rights 1989, 182Google Scholar. Quoted by Sarkin, J, ‘The effect of constitutional borrowings on the drafting of South Africa's Bill of Rights and interpretation of human rights provisions’ (1988–1999) 1 U of Pennsylvania J of Constitutional L 176, 79Google Scholar.

27 ibid.

28 There was a shift from parliamentary to constitutional supremacy under both the 1993 Interim and 1996 Final Constitutions.

29 Mageean, P, and O'Brien, M, ‘From the Margins to the Mainstream: Human Rights and the Good Friday Agreement’ [1999] 22 Fordham Intl J 1499Google Scholar.

30 In contrast to the NP's government's disdain for international law, there was huge interface with international law by international bodies and civil society and non-state actors. The General Assembly's denunciation of apartheid as a ‘crime’ and ‘genocide’, is an apt illustration of the international community’ role in the fight against apartheid. For further information on this issue see Bell, C, Peace Agreements and Human Rights (OUP 2000) 43–44Google Scholar.

31 Canada operated under the British North America Act 1867.

32 This was changed when the Privy Council ruled in the ‘Persons’ case that the word ‘person’ was ambiguous and could include women. This case was brought by five Alberta women who argued that women should be considered ‘qualified persons’ who could be appointed to the Senate under s 24 of the British North America Act, 1867. In the Matter of a Reference in the meaning of the word “Persons” in s 24 of the British North America Act, 1867 (1928) SCR 276.

33 B Baines, ‘Women, Human Rights and the Constitution’ in A Doerr and M Carrier (eds), Women and the Constitution in Canada (Canadian Advisory Council on the Status of Women, 1981) 33.

34 In 1890 the Manitoba legislature passed an Act abolishing official bilingualism and depriving Catholics of their publicly funded schools.

35 Quoted by Weinrib, L, ‘Canada's Constitutional Revolution: From Legislative to Constitutional State’ (1999) 33 Israel L Rev 13, 17Google Scholar.

36 CBOR, s 1(b) states ‘the right of the individual to equality before the law and the protection of the law’. The author is not implying that a Bill of Rights can automatically halt discriminatory practices.

37 The CBOR did not apply to provincial laws as the case of Ward et al and Board of the Blain Lake School Unit No 57 [1971] WWR 161 (Sask QB) aptly illustrated. The applicant sought an order to quash a resolution passed by a local school board. The Court ruled that the CBOR did not apply to provincial legislation.

38 R v Therens [1985] 1 SCR 613, 638 per Justice Le Dain.

39 R v Drybones [1970] 3 SCR 355. The Court held that s 94 of the Indian Act 1952 which made it an offence for an Indian to be intoxicated off a reserve, was incompatible with the CBOR as non-Indians were not subject to a similar prohibition. The majority held that this violated the right to equality before the law. For a detailed analysis of this and other equality cases under the CBOR, see Fogarty, H, Equality Rights and their Limitations in the Charter (The Carswell Co 1987) 3584Google Scholar.

40 CAN CONST (Constitution Act, 1982) pt 1 (Canadian Charter of Rights and Freedoms).

41 Disturbances in Northern Ireland Report of the Cameron Commission appointed by the Governor of Northern Ireland Cmnd 532, September 1969; Smith, D J and Chambers, G, Inequality in Northern Ireland (Clarendon Press: London 1991)Google Scholar; J Whyte, ‘How much discrimination was there under the Unionist regime, 1921–68?’ in T Gallagher and J O'Connell (eds), Contemporary Irish Studies (Manchester University Press 1983).

42 Calvert, H, Constitutional law in Northern Ireland, A study in Regional government (NILQ 1968)Google Scholar.

43 Bell, C, Campbell, C and Ni Aolain, F, ‘Justice Discourses in Transition’ (2004) 13(3) Social and L Studies 305, 310CrossRefGoogle Scholar.

44 A member of the Northern Ireland parliament, Shelagh Murnaghan proposed a Human Rights Bill on the 27 May 1964 (Northern Ireland Parliamentary Debates, 27 May 1964, vol 57, 1296). See also the Northern Ireland Civil Rights Association's proposal (NICRA) for a Bill of Rights, Northern Ireland Civil Rights Association, Bill of Rights (Northern Ireland) Act 1975 (Belfast: NICRA, 1975); and the Standing Advisory Commission on Human Right's report (SACHR) The Protection of Human Rights by Law in Northern Ireland (1977) Cmnd 7009.

45 For an overview of the political parties’ attitude towards a Bill of Rights see CAJ, A Bill of Rights for Northern Ireland Through the Years- the views of the political parties, July 2003; Making Rights Count October 1990Google Scholar.

46 The Anglo-Irish Agreement, 1985 established an Intergovernmental Conference where the Irish government could put forward proposals which included considering the advantages and disadvantages of a Bill of Rights for Northern Ireland (art 5).

47 Strand three, paragraph 4 of the Human Rights Section of the Agreement (emphasis added).

48 For an overall analysis of the different elements of the NIHRC's mandate on the Bill of Rights, see Smith, A, ‘The Drafting Process of a Bill of Rights for Northern Ireland’ [2004] Public L 526Google Scholar.

49 It is beyond the scope and focus of this article to discuss the differences between the two notions of equality and the tensions underpinning both understandings. For further information see Fredman, S, Discrimination Law (OUP 2011)Google Scholar.

50 For a detailed discussion on other difficulties constitutionalising equality via a Bill of Rights, see Smith, A, ‘Constitutionalising Equality: The South African Experience’ (2008) 9 Intl J of Discrimination and the L 201CrossRefGoogle Scholar.

51 S 9(2) reads: ‘Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken’. See also s 9(4) ‘Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved’.

52 The equality provision states that no state ‘shall deny to any person within its jurisdiction the equal protection of the laws’.

53 University of California Regents v Bakke 438 US 265 (1978).

54 S 15(2)(1) ‘does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability’.

55 Recommendation 5 states ‘Public authorities must take all appropriate measures to eliminate unfair discrimination, and where circumstances so warrant and in accordance with the law, must take all appropriate and proportionate measures to ameliorate the conditions of disadvantaged groups, including those individuals or groups disadvantaged because of the prohibited grounds in Recommendation 2. Recommendation 6 reads ‘Nothing in a Bill of Rights for Northern Ireland shall preclude any law, programme or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those individuals or groups disadvantaged because of the prohibited grounds in Recommendation 2, and is a proportionate means of achieving this objective’. NIHRC, A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland (10 December 2008) 84.

56 The NIHRC cited CEDAW, ICCPR and CERD.

57 Recommendation 2 states: ‘No one shall be unfairly discriminated against by any public authority on any ground such as …’; recommendation 3 provides an example of unfair discrimination: ‘consists of any provision, criterion or practice which has the purpose or effect of impairing the ability of any person to participate on an equal basis with others in any area of economic, social, political, cultural or civil life’; recommendation 4 is the obligation to enact legislation to ‘prevent or prohibit unfair discrimination’; and recommendation 5 requires public authorities to ‘take all appropriate measures, to eliminate unfair discrimination … .’ A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland (n 55) 80–83.

58 Corder and du Plessis (n 1) 141.

59 City Council of Pretoria v Walker 1998 2 SA 363 (CC).

60 Consultation documents, feedback and summaries on the NIHRC's proposals showed a lack of agreement on this issue, see NIHRC, Making a Bill of Rights for Northern Ireland. A Consultation by the Northern Ireland Human Rights Commission (September 2001) 2530Google Scholar; Progressing A Bill of Rights for Northern Ireland, An Update (April 2004) 35–40; See also the Bill of Rights Forum's report Final Report: Recommendations to the Northern Ireland Human Rights Commission on a Bill of Rights for Northern Ireland (March 2008) 30–35, available at <http://www.billofrightsforum.org/bill_of_rights_final.pdf>.

61 Wilford, R (ed), Aspects of the Agreement (OUP 2001)Google Scholar; Dixon, P, Northern Ireland: the Politics of War and Peace (Basingstoke: Palgrave 2002)Google Scholar and R Taylor, ‘Consociation or social transformation? in J McGarry (ed), Northern Ireland and the Divided World: Post-Agreement in Northern Ireland in comparative perspectives (OUP 2001).

62 C Harvey, ‘Stick to the Terms of the Agreement’ Fortnight July/August 2003, 9.

63 The terminology (separationist and group) is borrowed from Kymlicka, W, Multicultural Citizenship: A liberal theory of minority rights (Oxford: Clarendon Press 1995)Google Scholar ch 3.

64 Interview with a former Commissioner, Belfast, April 2003. Other critics include Wilford (n 61); Dixon (n 61); and Taylor (n 61).

65 Harvey was appointed to the NIHRC in September 2005.

66 Harvey (n 62) 9. Harvey was not a commissioner when he wrote this article.

67 ibid. It is important to note the Agreement, as with all treaties, the ‘terms’ are not always self-evident and constitute constructive ambiguity. Furthermore, for some, the ‘two tribes’ thesis is problematic and has being increasingly discredited for its failure to identify both the State as a key actor and identities such as class as salient factors in the escalation and perpetuation of conflict. See Wilford (n 61); and Taylor (n 61).

68 Making a Bill of Rights for Northern Ireland. A Consultation by the Northern Ireland Human Rights Commission (n 60) 27.

69 Art 3(1) of the Convention states ‘Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice’.

70 Making a Bill of Rights for Northern Ireland. A Consultation by the Northern Ireland Human Rights Commission (n 60) 27.

71 Catholics are the minority in Northern Ireland but Protestants would be the minority if Northern Ireland was ever to join the Republic of Ireland, an option which is provided for in the Agreement.

72 Making a Bill of Rights for Northern Ireland. A Consultation by the Northern Ireland Human Rights Commission (n 60) 27.

73 Interview with a representative of NICEM, 1 November 2002, Belfast.

74 Resignation letter from Patrick Yu to the then Secretary of State for Northern Ireland, Paul Murphy, 7 July 2003. It is important to note that Patrick Yu was not a commissioner when the draft Bill of Rights was produced in September. Patrick joined the NIHRC in the second round of appointments in December 2001, after the first draft Bill of Rights had been published.

75 The proposed clause stated that the right could not be used to ‘negate equality commitments, including positive action provisions in the Bill of Rights or in legislation’. Making a Bill of Rights for Northern Ireland. A Consultation by the Northern Ireland Human Rights Commission (n 60) 23.

76 Equality Commission for Northern Ireland, Northern Ireland Human Rights Commission Proposed Bill of Rights for Northern Ireland: Response, March 2002, para 16.2.

77 McCrudden chapter (n 19) 341. Both the British and Irish governments and the political parties also expressed concern, arguing that the contents of a Bill of Rights should be entirely consistent with the arrangements under the Agreement and should reflect fully the fundamental principles that underpin it. Letter from the Parliamentary Under Secretary of State for Northern Ireland to the NIHRC, 22 November 2001; letter to the NIHRC from the Irish government, November 2001, on file with the author.

78 Forum shopping in this context refers to seeking advice on interpretation from a particular body, not forum shopping on substantive norms.

79 Resignation letter (n 74).

80 McCrudden (n 19) 345.

81 OSCE HCNM, Note for the NIHRC in response to questions of 12 August 2003 22 March 2004, on file with the author.

82 ibid 346.

83 Interview with the former Chief Commissioner, 4 April 2003, Belfast.

84 Heringa, Malvinverni, Joseph Marko and Giorgio Malinverni, Comments by Council of Europe experts on certain aspects of a future Bill of Rights for Northern Ireland (Strasbourg, 3 February 2004) (Council of Europe, DGII (2004)4 (English) paras 65, 69, on file with the author.

85 ibid para 64.

86 ibid paras 67 and 68.

87 McCrudden (n 19) 346–348.

88 ibid 351.

89 Progressing A Bill of Rights for Northern Ireland (n 60) 30.

90 As stated earlier, the NIHRC is mandated under the Agreement to submit advice to the Secretary of State on the content of a Bill of Rights for Northern Ireland.

91 Craig, E, ‘The Framework Convention for the Protection of National Minorities and the Northern Ireland Bill of Rights Process’ (2009) 60(2) NILQ 201, 210Google Scholar.

92 These issues were/are not the only controversial issues. Others include the inclusion of social and economic rights, children's rights, women's rights. There are other polemic aspects of the identity and culture rights. For further discussion see Harvey, C and Schwartz, A, ‘Designing a Bill of Rights for Northern Ireland’ (2009) 60(2) NILQ 181Google Scholar; ibid.

93 A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland (n 55) 98–103. Language rights which are not addressed in this article, are addressed separately in the NIHRC's advice in 103–106.

94 Harvey and Schwartz (n 92) 196.

95 The ‘new’ commission was appointed in September 2005.

96 Similar to other rights, the Bill of Rights Forum's report was divided on culture and identity and provided the NIHRC with two options. Option A included the right to self-identification, option B excluded the right. Bill of Rights Forum (n 60) 67–78.

97 C Harvey, Governing After the Rights Revolution Inaugural Lecture, Belfast, 9 March 2006.

98 Corder and du Plessis (n 1) 141–142.

99 ibid 142.

100 As we will see, the NIHRC's advice has followed the South African approach with the inclusion of sexual orientation in the draft equality clause/recommendation.

101 This is explicit in the phrase ‘on one or more grounds’ (s 9(3).

102 Powell, J, ‘The Multiple Self: Exploring Between and Beyond Modernity and Postmodernity’ (1996–1997) 81 Minnesota L Rev 1481, 1483Google Scholar.

103 A value which has subsequently being recognised by the courts: see Harksen v Lane NO 1998 (1) SA 300 (CC), para 49.

104 In the case of Larbi-Odam v MEC for Education (North West Province) 1998 (1) SA 745 (CC), the grounds prohibiting discrimination include citizenship.

105 There has been a change in government since the elections in May 2010 with the replacement of the Labour government with a new coalition government of Conservatives and Liberal Democrats.

106 Northern Ireland Office, Consultation Paper, A Bill of Rights for Northern Ireland: Next Steps November 2009, 28, 29, available at <http://www.nio.gov.uk/consultation_paper_-_a_bill_of_rights_for_northern_ireland__next_steps.pdf>.

107 Ss 9(3) of the South African Bill of Rights contains seventeen grounds, ss15(2) of the Canadian Charter has nine grounds, and the equality recommendation in the final advice has twenty-seven grounds. A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland (n 55) 81. The 2004 draft had twenty-four grounds, the 2001 draft had ten grounds.

108 Interview with Professor Shelia McIntyre, Ottawa, August 2004.

109 ibid 29.

110 For example as a result of adopting an open approach, sexual orientation is now included as an analogous ground in the Canadian Charter, Vriend v Alberta [1998] 1 SCR 493, M v H [1999] 2 SCR 3.

111 Livingstone, Stephen, Equality and Human Rights Northern Ireland Human Rights Commission seminar, Belfast, 24 March 2003Google Scholar.

112 Examples of some of these Acts include the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equality Act 55 of 1998.

113 When discussing its final advice, the NIHRC drew up a set of guidelines to help them discuss which rights should be included. The guidelines start with the ‘particular circumstances of Northern Ireland’ and then go into more detail on how to deal with the ‘particular circumstances’. A Briefing on the Methodology used in preparing the advice of the NIHRC to Government on a Bill of Rights 9 June 2008.

114 A Bill of Rights for Northern Ireland: Next Steps (n 106) 28, 29.

115 NIHRC, A Bill of Rights for Northern Ireland: Next Steps Response to the Northern Ireland Office February 2010, 31, available at <http://www.nihrc.org/dms/data/NIHRC/attachments/dd/files/71/Response_to_NIO_consultation_on_a_Bill_of_Rights_for_Northern_Ireland_(February_2010).pdf>.

116 S 36 of the South African Bill of Rights, s 1 of the Canadian Charter.

117 In South Africa, while the drafters intended to subject the equality provision to a general limitation clause, following the case of Harksen v Lane NO 1998 (1) SA 300 (CC), an internal test (referred to as the Harksen test) now applies to the equality right.

118 A Bill of Rights for Northern Ireland: Next Steps (n 106) 86.

119 This is due to the wording of the Agreement which requires the rights to ‘reflect the particular circumstances of Northern Ireland’.

120 The Labour government introduced a Green Paper to discuss a possible UK Bill of Rights, Ministry of Justice, Rights and Responsibilities: Developing Our Constitutional Framework, March 2009 available at <http://www.justice.gov.uk/publications/docs/rights-responsibilities.pdf>. The Ministry of Justice recently published a summary of the responses to the Green Paper, Rights and Responsibilities: Developing Our Constitutional Framework, Summary of Responses, March 2010, available at <http://www.justice.gov.uk/publications/docs/rights-responsibilities-response.pdf>. The Ministry of Justice also published an independent report outlining findings from the public events that sought public views on the issues in the Green Paper, People and power: shaping democracy, rights and responsibilities, March 2010, available at <http://www.justice.gov.uk/publications/docs/rights-responsibilities-events-final-web-version.pdf>. The Commission on a Bill of Rights has recently published its first discussion paper, entitled Do we need a UK Bill of Rights? August 2011, available at http://www.justice.gov.uk/about/cbr/index.htm.

121 The current Northern Ireland discussion is derived from the Agreement and is motivated to implement the obligations outlined in the Agreement to help the transition from conflict to a more peaceful and equal society. The motivation behind the UK Bill of Rights is different-the process has been driven by politicians with a specific political agenda with little or no involvement from ‘ordinary’ people (a top-down approach) and is arguably attempting to undermine rather than enhance human rights protection. For further information on the dangers of combining both debates see JUSTICE, Devolution and Human Rights February 2010, 22, available at <http://www.justice.org.uk/images/pdfs/Devolution%20and%20Human%20Rights.pdf>.

122 The other guarantor of the Agreement, the Irish government, has also stated that the international obligation of the UK is to implement a Northern Irish Bill of Rights, not a UK Bill of Rights: ‘Regarding the bill of rights for Northern Ireland, I reiterate the commitment of the Government to ensure the full and effective implementation of all aspects of the Good Friday Agreement and the St Andrews Agreement. In that context, we attach importance to a specific bill of rights for Northern Ireland as envisaged in the Good Friday Agreement. The Government has consistently communicated that position in contacts with the current British Administration and with the Conservative Party Front Bench’. Answer of the Taoiseach in response to a question by Deputy Eamon Gilmore, 21 October 2009, Parliamentary Debates, vol 692, no 3, p 564, available at http://debates.oireachtas.ie/Xml/30/DAL20091021.PDF

123 The NIO's response refers to the ‘International Convention on Civil and Political Rights’, instead of the International Covenant and fails to give the full title to the Council of Europe Convention on Action against Trafficking in Human Beings. The NIO's description is the Council of Europe Convention on Trafficking in Human Beings. A Bill of Rights for Northern Ireland: Next Steps (n 106) 35, 52.

The lack of reference to international standards is one of the many criticisms in the NIHRC's response to the NIO's paper. A Bill of Rights for Northern Ireland: Next Steps Response to the Northern Ireland Office (n 115) 14.

124 A Briefing on the Methodology used in preparing the advice of the NIHRC to Government on a Bill of Rights, 9 June 2008. Furthermore, as the above discussion demonstrates, the NIHRC drew substantially on international standards throughout its consultation publications.

125 A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland (n 55) 155, 156.

126 Klug (n 12) 48.

127 The NIO supports the inclusion of only two out of the seventy-eight recommendations of the NIHRC. These are the right to vote/be elected and the right to identify oneself and be accepted as British or Irish or both. Other rights are either ruled out or to left open to debate. That said, similar to the equality right, the NIO mischaracterises the right to vote as this right is not unlimited-like the other rights, it is subject to limitations.

128 Space mitigates an examination of other reasons why the NIO's response undermines human rights protection. For further information see A Bill of Rights for Northern Ireland: Next Steps Response to the Northern Ireland Office (n 115).

129 The majority of responses have been negative as the NIHRC amongst others has rejected the proposals, A Bill of Rights for Northern Ireland: Next Steps Response to the Northern Ireland Office (n 115) 17–27. See also the Bill of Rights special in Just News, CAJ, January 2010 and the recent Northern Ireland Assembly debate over proposals to amend the Government consultation on a Bill of Rights, 1 March 2010, available at <http://www.niassembly.gov.uk/record/reports2009/100301.htm#6>.

130 Canada, Special Joint Committee of the Senate and the House of Commons on the Constitution, Minutes of Proceedings and Evidence 1980–1981, on file with the author.

131 Claydon, J, ‘International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms’ (1982) 4 Supreme Court L Rev 287, 287Google Scholar. Indeed Trudeau, the then Prime Minister noted that 1968, two years before the Constitutional Amendment Bill was enacted, was an appropriate year to embark on an entrenched Bill of Rights as it had been named Human Rights Year by the United Nations General Assembly. See Trudeau, P, A Canadian Charter of Human Rights (Ottawa: Queen's Printer 1968) 7Google Scholar.

132 Fossum, J E, Charters and Constitution-making: Comparing the Canadian Charter of Rights and Freedoms and the European Charter of Fundamental Rights (2002) ARENA Working Papers WP 02/08Google Scholar, available at <http://www.arena.uio.no/publications/wp02_8.htm>.

133 Equality before the law and equal protection of the law.

134 S 15(1) reads ‘Equality before the law, equality under the law, equal protection and equal benefit of the law’. S 9(1) reads (1) ‘Everyone is equal before the law and has the right to equal protection and benefit of the law’, and the NIHRC's recommendation provides ‘Everyone is equal before and under the law and has the right to equal protection and equal benefit of the law …’

135 Hugo v President of the Republic of South Africa and Another 1996 (4) SA 1012 (D), para 41 (per former Justice Goldstone).

136 Smith (n 48); ‘Bills of Rights as Process: The Canadian Experience’ (2008) 3(4) International Journal of Law in Context 343, ‘Constitutionalising Equality: the South African Experience’ (2008) 9(4) Int J of Discrimination and the L 201–249.