Thursday, 16 July 2009

NIHRC's 'loyal but dissenting member' likely to be vindicated. Lady Trimble's evidence.

The Northern Ireland Affairs Committee at Westminster has questioned Lady Trimble, NI Human Rights Commissioner, on her note of dissent which was entered after the NIHRC submitted its final report. Lady Trimble describes herself as ‘personally committed to human rights’ and ‘a loyal member’ of the Commission, but remains convinced that the body did not stick to its remit, outlined in the Northern Ireland Act 1998 which implemented the Belfast Agreement. Her opinion is in accordance with comments which the Secretary of State made when he was interrogated by the same committee. Shaun Woodward expressed the view that the NIHRC’s advice went ‘well beyond’ the brief which it was given, a factor which, he implied, compromised the usefulness of its recommendations to the government.

Under questioning Lady Trimble reiterated her stance, clearly referencing the relevant legislation. Section 69 (7) of the Act prescribes the Commission’s role in drafting a report on a prospective bill of human rights for Northern Ireland. The section, ‘refers directly to paragraph 4 of the rights section of the Belfast Agreement, which sets out that the Human Rights Commission will be invited 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, and drawing as appropriate on international instruments and experiences; "these additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem."’. Trimble’s opinion, which she has developed by closely interpreting the text of the legislation and the GFA, rather than insinuating extra unwritten intentions, is that the NIHRC’s task is limited by these provisions.

“The phrase "to reflect" appears twice. My belief is that that phrase is prescriptive and mandatory, that we have to reflect those particular circumstances and the mutual respect, that those are mandatory and compulsory on the Commission, and that is where I feel that the Commission went too far in carrying out its remit.”

Asked to define what she felt might have comprised acceptable content for a bill of rights, Lady Trimble is not specific, but she is clear. The commission was being asked to address certain post-conflict areas which could be alleviated by provisions relating to ‘mutual respect’ and ‘identity’. This hardly represents a fanciful or unpalatably minimalist interpretation of the NIHRC’s task. It merely reflects close attention to the body’s original remit, as it was outlined in the requisite documents. The extent to which other commissioners declined to adopt a similar approach has been discussed before and is examined again in this evidence. Socio economic rights are ‘common societal problems right across the UK’; they are by no means specific to Northern Ireland. Lady Trimble does acknowledge that the commission spent some time considering whether its proposals would be ‘particular to Northern Ireland’ (although clearly its conclusions were wide of the mark), but in her opinion it neglected the ‘mutual respect’ and ‘identity’ provisos which carried ‘equal importance’ in its remit.

But even if certain socio economic issues were acutely different in Northern Ireland, it would be inappropriate to deal with them in human rights legislation. Especially given that a two track approach to rights, within a particular jurisdiction, is in itself likely to precipitate legal problems, in terms of implementation. Giving force to the eighty odd recommendations which the NIHRC carried in its report would, as Lady Trimble surmises, place Northern Ireland in a ‘a very, very particular standalone bubble’ in comparison to the rest of Britain and indeed even within the European Union. These practical legal implications seem to have rather escaped the commission, although a number of independent experts have raised prospective difficulties which would be associated with its proposals. After an enormous amount of time and money, wasted on the NIHRC and associated consultation, we might finally be edging towards a practical solution. Certainly Lady Trimble’s suggestion that a UK bill of rights could include, bolted on, provisions specific to Northern Ireland, has already been alluded to by Dominic Grieve, the shadow home secretary. And, whilst the government continues with its examination of the NIHRC report, Shaun Woodward has implied that it is probably unusable in its current form. Indeed an interesting exchange during this deposition takes place between David Simpson, the witness and committee chair, Sir Patrick McCormack.

“Q86 David Simpson: Very briefly, in relation to all the work that the Commission is doing, and I think the Committee Chairman met with representatives of the Commission in the Assembly, and I put the same question to them: if when the report is finished, and there is a paper put before the Assembly or the Executive, if they reject it, does that mean that Bill of Rights for Northern Ireland is dead in the water?
Lady Trimble: Well, the remit referred to Westminster legislation, but I would find it very difficult to believe that Westminster would enact legislation if the Assembly had turned it down, so to speak.
Q87 Chairman: I think we would find that a little difficult to envisage as well.”

It is, of course, unthinkable that the Assembly or the Executive would endorse the Commission’s work as it stands at the moment. Nor is it probable that any government would wish to give NGOs carte blanche to take legal proceedings against public organisations which, Lady Trimble alleges, would be the result of allowing any interested person or body, rather than a victim of rights violation, to take legal proceedings on the basis of a human rights bill.

Clearly, from the evidence she provides, Lady Trimble realised that the final document was not going to be tenable as soon as socio economic rights and implementation began to be discussed. She sought, and was denied, permission to submit a minority report. It is interesting to read her thoughts on areas which might have proved fertile ground for rights, but which were either ignored in the recommendations, or where little of significance was proposed. These include freedom of assembly, language, education, culture and identity. One might have thought that there was adequate scope here to craft useful and practical suggestions, relevant to the Belfast Agreement and the Northern Ireland Act.

What is very apparent reading Lady Trimble’s evidence, in conjunction with her note of dissent, and contrasting it with the NIHRC’s report, is that this particular commissioner took a very different approach to her contribution to the commission than the bulk of its membership. She considered that the body had been set a task, prescribed by certain limits, and that its purpose was to stick to its remit and produce an appropriate document. Others within the commission took a line more typically associated with quangoes. They assumed that the remit it was given formed a starting point and, having been established on that basis, the commission was free to expand its focus, set its own agenda and perpetuate its role. The result is that it produced recommendations which will not form the basis of any special human rights provision for Northern Ireland. It is likely that, ultimately, its loyal but dissenting member will be vindicated.

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