Article contents
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.
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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) 7–13.Google Scholar
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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.
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26 ibid.
27 ibid.
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.
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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:+
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
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54 Interview with civil servant, 29 Nov 2004.
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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
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61 See British Irish Rights Watch, Director's Report (07/08 2003).Google Scholar
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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
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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
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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.
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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
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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
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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
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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>, 6–7.Google Scholar
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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
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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
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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) 498–502.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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