Bill of Rights Forum ______________________________________ Final Report Recommendations to the Northern Ireland Human Rights Commission on a Bill of Rights for Northern Ireland Bill of Rights Forum ______________________________________ Final Report Recommendations to the Northern Ireland Human Rights Commission on a Bill of Rights for Northern Ireland 31 March 2008 Bill of Rights Forum Interpoint Centre 20-24 York Street ______________________ Belfast www.billofrightsforum.org BT15 1AQ Professor Monica McWilliams Chief Commissioner Northern Ireland Human Rights Commission 39 North Street Belfast BT1 1NA 31st March 2008 Dear Professor McWilliams RECOMMENDATIONS OF THE FORUM ON A BILL OF RIGHTS FOR NORTHERN IRELAND As Chair of the Bill of Rights Forum, and in accordance with the Forum’s terms of reference, I am pleased to transmit to the Northern Ireland Human Rights Commission the Forum’s recommendations on a Bill of Rights for Northern Ireland. The recommendations are the result of deliberations by the Forum, which has met 18 times in plenary session since December 2007, and by its seven working groups, which met regularly between July 2007 and February 2008 to consider specific areas of the Bill. I am grateful to all Forum members, and working group members, for the commitment they have shown to the task. On behalf of the Forum, I wish the Northern Ireland Human Rights Commission well as it considers its advice to the Secretary of State. Yours sincerely Chris Sidoti Chair BILL OF RIGHTS FORUM FINAL REPORT INDEX Chapter 1 INTRODUCTION 5 Chapter 2 INTERPRETING THE FORUM’S TERMS OF REFERENCE 11 Chapter 3 RECOMMENDATIONS RELATING TO THE PREAMBLE 17 Chapter 4 RECOMMENDATIONS RELATING TO SUBSTANTIVE RIGHTS 25 1. Equality 30 2. Right to life 36 3. Right to physical integrity 40 4. Freedom from torture and all cruel, inhuman and degrading treatment and punishment 43 5. Freedom from slavery and forced labour 45 6. Right to liberty and security of the person 48 7. Right to privacy and family life 52 8. Freedom of thought, conscience and religion 57 9. Freedom of expression 60 10. Freedom of association and of peaceful assembly 63 11. Right to culture, language and identity 67 12. Right to nationality and identity 76 13. Right to education 79 14. Right to possessions 84 15. Right to an adequate standard of living 86 16. Right to the highest attainable standard of health 89 17. Right to housing 92 18. Right to a sustainable environment 95 19. Right to work 98 20. Right to social security 102 21. Right to a fair and non-discriminatory justice system 104 22. No punishment without law 106 23. Right to a fair trial 108 24. Right to humane conditions of detention 113 25. The rights of victims and witnesses to fair treatment 116 26. The rights of children and vulnerable adults as witnesses and victims of crime 118 3 27. Victims of the conflict 120 28. Victims of crime or of human rights violations 123 29. Rights of children and young people in the justice system 128 30. Right to participation in public life 132 31. Freedom of movement 136 32. Right to choose a nomadic or settled lifestyle 140 33. Right to communicate 142 34. Rights of the child 144 35. Best interests of the child 147 36. Right to participate 149 37. Right to family life and care 151 38. Freedom from abuse and exploitation 153 39. Right to play 157 40. Children and armed conflict 159 41. Women’s right to live free from violence 162 Chapter 5 RECOMMENDATIONS RELATING TO TECHNICAL PROVISIONS 163 1. Relationship with the Human Rights Act 163 2. Limitations 165 3. Derogation 166 4. Entrenchment and amendment 168 5. Application 170 6. Standing 172 7. Interpretation 173 8. Coverage 174 9. Justiciability 175 10. Enforcement mechanisms 176 11. General remedies 178 12. Harmonisation and non-diminution 179 Chapter 6 IMPLEMENTATION 181 Appendices 4 CHAPTER 1. INTRODUCTION Background to the establishment of the Forum Under the Multi-Party Agreement made on 10 April 1998 (also known as the Belfast or Good Friday Agreement) responsibility was given to the Northern Ireland Human Rights Commission (NIHRC), itself established under the Agreement, to consult and to advise on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and - taken together with the ECHR - to constitute a Bill Rights for Northern Ireland.1 The Northern Ireland Act 1998 established the Commission and included advising on a Bill of Rights for Northern Ireland among its statutory responsibilities.2 Upon its commencement in 1999, the NIHRC began preparatory research and then undertook a very broad consultation to take forward this remit. It published its major consultation document Making a Bill of Rights for Northern Ireland on 4 September 2001, setting out a draft Bill of Rights for Northern Ireland. In this paper the NIHRC said, “In so far as a narrow interpretation of paragraph 4 might be thought to rule out the recommendation of certain rights, the Commission is satisfied it can properly rely on its general power under 69(3)(b) of the Northern Ireland Act 1998 to make recommendations for the better protection of human rights in Northern Ireland”.3 This document was extensively debated and there was a proposal for a ‘roundtable’ in 2003 to involve the political parties, but at the time it was not possible to reach agreement on that proposal. Accordingly, the Commission then, in April 2004, produced an update of the consultation Progressing a Bill of Rights for Northern Ireland: An Update. For various reasons the process did not go further at that time. The Government first committed itself to establishing a roundtable forum on the Bill of Rights in the Joint Declaration of 2003. The proposal was strongly advocated and supported by civil society. The St Andrews Agreement of 13 October 2006, which formed the framework for restoring devolution in Northern Ireland, then provided the necessary cross-community political support to establish the roundtable or forum. At St Andrews, the Government committed to establish a forum on a Bill of Rights and to convene its first meeting in December 2006. After a brief consultation period the Government established the Northern Ireland Bill of Rights Forum with 28 members: 14 from the five main political parties, and 14 from sections of civic society.4 The Government also formulated the Forum’s terms of 1 Paragraph 4 of “Rights, Safeguards and Equal Opportunity”, in Strand Three of the Multi-Party Agreement of 10 April 1998. 2 Section 69(7). 3 Making a Bill of Rights for Northern Ireland, September 2001, p10 4 The names of all Forum members, alternate members, substitute members and of all others associated with the work of the Forum are in Appendix 4. 5 reference, based on the provisions of the 1998 Agreement.5 An independent, international chairperson, Professor Chris Sidoti, was appointed in late March 2007. The Forum then began to meet regularly from April 2007. Terms of reference The Forum was required To produce agreed recommendations to inform the Northern Ireland Human Rights Commission’s advice to Government on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international human rights instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill Rights for Northern Ireland. Members and observers The Forum had 28 members and an international Chair. Of the fourteen political seats the Democratic Unionist Party, Sinn Féin, the Ulster Unionist Party and the Social Democratic and Labour Party were each allocated three. The Alliance Party was given two seats. Of the fourteen civic society seats, the churches, the trade unions and the business sector were each allocated two. One seat was allocated to human rights non- government organisations and the remaining seven positions were allocated to community and voluntary organisations. The representatives from the community and voluntary organisations were to bring perspectives from the following sectors: • children and young people • people with disabilities • ethnic minorities • older people • people of different sexual orientations • women • the community/voluntary sector as a whole. The Northern Ireland Office made contact with the main representative groups for each sector and asked them to agree a representative to reflect views from that 6 sector. 5 See A Forum for a Bill of Rights for Northern Ireland – Response to Consultation issued by the Northern Ireland Office 12 December 2006 - para 9. 6 Ibid para 22. 6 Six of these seven sectors (all but the community/voluntary sector as a whole) nominated two alternating members to share their position so as to ensure a broader representation of the sectors. The Forum granted official observer status to nine organisations: • The Northern Ireland Human Rights Commission • The Equality Commission for Northern Ireland • The Northern Ireland Commissioner for Children and Young People • The Human Rights Consortium • Wave Trauma Centre • The Green Party • The Loyal Orange Institution • The Ulster-Scots Heritage Society and • The Caleb Foundation. The processes of the Forum To fulfil the commitment made at St Andrews, the Hon David Hanson MP, Minister of State with responsibility for human rights, chaired the first meeting of the Forum on 18 December 2006.