ENFORCEMENT MECHANISMS FOR 
A BILL OF RIGHTS FOR NORTHERN IRELAND – 
SOME DISCUSSION POINTS

Brice Dickson, Human Rights Centre, Queen’s University Belfast

Do we need a Human Rights Court?

Arguments in favour of this suggestion:

•	it would focus expertise on this very important area;
•	it would ensure that human rights are given a special legal and judicial status;
•	it would symbolise and help to underpin Northern Ireland’s ‘new start’.

Arguments against this suggestion:

•	it would lead to demarcation disputes between the courts and problems for litigants;
•	it would marginalize rather than mainstream human rights law;
•	it would call into question the good work already done by the courts under the Human Rights Act 1998.

Do we need a Constitutional Court?

This was not considered by the Forum or any of its Working Groups. Such a court could consider other important matters besides questions concerning the Bill of Rights, such as questions concerning the meaning of terms in the Belfast (Good Friday) Agreement 1998. But it may be that the creation of the UK Supreme Court in October 2009 will in any event provide an opportunity for important cases from Northern Ireland to be dealt with by a more representative judiciary.

What does justiciability actually require?

Would it be satisfactory if the Bill gave people with the requisite standing the right to seek judicial review of certain decisions taken by public authorities – i.e. to challenge the processes used during the decision-making process rather than the actual merits of the decision taken?  Might this be an attractive way of allowing executive bodies to retain the final say as to the content of their decisions while requiring them to adopt certain procedures before coming to those decisions? 

Unfortunately, recent decisions by the House of Lords suggest that the nation’s top court is less interested in proper process regarding human rights than in whether, at the end of the day, human rights have been breached (see R (SB) v Denbigh High School [2007] 1 AC 100 and Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420). On the other hand, in countries such as South Africa, whose Constitution is often cited as one which allows judges to adjudicate on socio-economic rights, the Constitutional Court does not so much decide whether socio-economic rights have been breached as whether the relevant public authority has gone through the right procedures to ensure that its decision or policy in question is reasonable. 

To me the best way forward would be for the House of Lords (and the new UK Supreme Court) to lay down clearer guidance to all lower courts in the UK as to what factors they should take into account when judging whether public authorities have acted reasonably, proportionately, and in compliance with the fundamental requirements of equality and human rights. There comes a point when matters which some people may see as relating to the merits or substance of an issue are actually better treated as classified procedures involved in the issue – consider the current legal requirements for regulatory, environmental and equality impact assessments).  

Should the Bill of Rights impose positive duties?

To what extent must rights conferred by the Bill of Rights be ones that can actually be litigated in courts? Could some of the ‘rights’ be couched as the flip-side of a series of duties imposed on public (and perhaps some private) authorities? If so, these could be enforced in ways other than through people claiming that their rights have been breached.

There are already good examples of positive duties imposed by legislation which does not at the same time give individuals the right to go to court:

•	section 75 of the Northern Ireland Act 1998 (in In the Matter of an Application by Peter Neill for Judicial Review [2006] NICA 5 the Court of Appeal of Northern Ireland said that judicial review was usually inappropriate in this context);
•	sections 84 and 85 of the Equality Act 2006 (GB).

There are many other examples of legislation in the socio-economic field requiring authorities to bear in mind certain factors and to pursue certain goals, but these are not usually regarded as requirements that can be judicially sanctioned if not adhered to (unless perhaps through judicial review). Interestingly, the Forum Report (pp.175-6) indicates that the left-leaning sectors of our society are now more in favour of judicial involvement in this sphere than the right-leaning sectors, which is a reverse of the position that used to pertain in the 1960s and 1970s. At that time judges were viewed by the left as the epitome of the Establishment – conservative, old-fashioned and reactionary. Why are they so trusted today? Should we be willing to give the final say over socio-economic matters to judges? If not, do we then want Parliament (or the Assembly) to retain sovereignty?  

Should the Bill of Rights be binding on the private sector?

The Forum report does not seem to have given serious consideration to whether human rights should be mainstreamed throughout the private sector as well as the public sector. It is strange, to say the least, that we expect the private sector to adhere to equality legislation but not to human rights legislation (the Human Rights Act 1998 applies only to ‘public authorities’). 

It is surely not enough to say that victims of human rights violations committed by the private sector have an indirect remedy against the state for its failure to have a law in place which protects their rights – it would be much simpler to give such victims a direct remedy against the private sector. It would help to mainstream human rights thinking. If a newspaper, church, trade union or bank were to invade someone’s privacy, or treat someone degradingly, or deprive them of the ‘quiet enjoyment of their possessions’, why should they not be answerable for breaches of the Human Rights Act? And if they breach the Bill of Rights for Northern Ireland why should they not be equally answerable?  

Should the Bill of Rights contain Directives of Social Policy?

Should some of the ‘rights’ in the Bill be made expressly non-justiciable, like the Directive Principles of Social Policy in the Irish Constitution (Article 45) or the Directive Principles of State Policy in the Constitution of India (Articles 36-51)?

•	‘The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas. The application of these principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.’ (Article 45 of the Irish Constitution)

•	‘The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles when making laws’ (Article 37 of the Indian Constitution) 

Should the Bill of Rights set out some responsibilities?

This too does not seem to have been seriously considered by the Bill of Rights Forum, perhaps because it tends to provoke antipathy amongst the human rights NGO sector as they think it will somehow endanger the protection of rights. But if the duty to fulfil responsibilities is divorced from the entitlement to rights (i.e. the latter is not made dependent on the former), there is no such danger. In any event, human rights are the individuals’ perspective on public authorities’ duties, which is another word for responsibilities.

The Indian Constitution, in Article 51A, inserted in 1976, lists various ‘Fundamental Duties’ of every citizen of India. These include: 

•	(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; 
•	(f) to value and preserve the rich heritage of our composite culture; 
•	(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
•	(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
•	(i) to safeguard public property and to abjure violence.

The African Charter on Human and Peoples’ Rights also contains duties, and the latest Bill of Rights in Australia (in Victoria) is entitled the Charter of Rights and Responsibilities. The current UK government, and also the Conservative opposition, is in favour of a UK Bill of Rights and Responsibilities. The arguments in favour of including responsibilities in a Bill of Rights for Northern Ireland should not be so summarily dismissed.  

What guidance should the Bill of Rights give as to how it should be interpreted?

Should the Bill contain one or more interpretation sections which will require judges to adopt a certain approach when interpreting legislation, e.g.:

•	Sections 2 and 3 of the Human Rights Act 1998:

‘2(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any;
(a)	Judgment, decision, declaration or advisory opinion of the European Court of Human Rights……
3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’

•	section 39 of the Constitution of South Africa 1996:

‘(1) When interpreting the Bill of Rights a court, tribunal or forum
(a)	must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; 
(b)	must consider international law; and 
(c)	may consider foreign law.
(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’

There is obviously considerable scope here for adopting an interpretation clause which embues the Bill of Rights with certain collectively held values, perhaps drawn from the Belfast (Good Friday) Agreement and/or the Mitchell Principles.

Brice Dickson
29 September 2008
b.dickson@qub.ac.uk