1998 – No. 28: “A Bill of Rights for Northern Ireland” – report

Meath Peace Group Talks

No. 28. – “A BILL OF RIGHTS FOR NORTHERN IRELAND”

Monday, 6 April 1998

St. Columban’s College, Dalgan Park, Navan, Co. Meath

SPEAKERS:

Paul Mageean (Legal Officer, Committee on the Administration of Justice)

John Lowry (Workers’ Party)

Cllr Hugh Carr (SDLP, Newry and Mourne)

Andrew Park (Lisburn Community Forum, and member of UUP)

Chaired by John Rogers, S.C.

Contents:

Introduction: John Rogers, S.C. – Constitution of Ireland; European Convention

Paul Mageean

John Lowry

Hugh Carr

Andrew Park

Summing up – John Rogers

Questions and comments (selection)

Appendix – CAJ leaflet – “A Bill of Rights for Northern Ireland? Your questions answered”

“A BILL OF RIGHTS FOR NORTHERN IRELAND”

[Editor’s note – context for talk: negotiations leading up to signing of Good Friday/Belfast Agreement 10 April 1998]

Introduction: John Rogers, S.C.

Constitution of Ireland: “This is a very timely meeting and a very timely discussion. The issue that is before you tonight is the question of a Bill of Rights. Now I am a lawyer; I practice in the courts and I see a lot of cases, quite a few anyway, relating to the Constitution, and in our State the Constitution provides us with a Bill or Rights.

Like every other lawyer, I think the Constitution has its ups and its downs – there are good sides and bad sides to it. One thing that is absolutely clear to me is that our Constitution as a Bill of Rights has served us fantastically. There is no doubt about that – and I say that, as it were, a little bit in the past tense because I think we are reaching a point now where for the last thirty years, judges have been interpreting what are the fundamental rights in the Constitution and they have elaborated a great deal into the Constitution which is very beneficial to the citizen particularly in the area of his or her personal rights.

“But there are downsides. There are events and circumstances where the Constitution does not provide a remedy. I’m going to give you an example:

Mental Treatment Act 1945: “A case went through the Courts about four years ago now. Its a case called R.T. v. Central Mental Hospital and the Eastern Health Board. R.T. was one time in jail, about twenty years ago now, and he did something minor in jail and he was examined by a doctor. The doctor found him to be mentally ill and he was transferred from the jail to the Central Mental Hospital. Now, the offence in respect of which he was in jail was a minor offence – I think he was serving a sentence of some months – but he went to the Central Mental Hospital on foot of an order made in the prison. He arrived in the Central Mental Hospital and he didn’t come out for sixteen years. That happened in our country. Just think about that now for a moment; that happened in our country. This man was serving a definite sentence, he was transferred to the Central Mental Hospital and never got out. The reason he didn’t get out was because he wasn’t able to mind himself. Nobody was charged with establishing whether he was well enough to do so. There was no system within the Hospital or under the purview of the Mental Treatment Act 1945 which provided for a regular reappraisal of his case. The case finally came on in the High Court under Article 40 of the Constitution. He made the case that he was not detained in accordance with law. Now, on its face he was, because everything that had been done fifteen years before was in order. The appropriate medical certificates were there, the appropriate reception order receiving him into the Central Mental Hospital was there but he was still detained for about fifteen and a half hears longer than he should have been.

“This is an extraordinary story and, in fact, I believe he must have been led out the door of the Central Mental Hospital to a solicitor down in Dundrum because, otherwise, he would still be there because there was no system of review, no automatic system of review. Now, under the European Convention of Human Rights, the European Court of Human Rights has established, effectively as a rule, that persons who are mentally ill and who are involuntarily detained should have the question of their continued hospitalisation reviewed regularly, three-monthly or six-monthly. In T.’s case, the President of the High Court, Mr. Justice Costello, found that the provisions of the Mental Treatment Act which permitted him to be detained like that were unconstitutional. The State didn’t appeal that and the matter rested. Subsequently, another case went to the Supreme Court and the Supreme Court found that the provisions of the Mental Treatment Act were constitutional. Now this, in effect, means that somebody can be detained in a mental hospital without review for a protracted period, when in fact they may be well or well enough to be out. I am giving you this example because it is well away from the area of politics, away from the area of Northern Ireland and I’m trying to express to you in a simple way that our Constitution, given that dilemma, was not equal to the challenge of protecting that individual’s personal rights. The Supreme Court, in effect, found that the Mental Treatment Act 1945 was constitutional and, although it was criticised, on the basis that there was no automatic review of a reception into a hospital, the Supreme Court upheld it.

Bill of Rights: “So this business of Bills of Rights just hasn’t got to do with politics or big issues of our nation, it has to do with very fundamental personal rights and things that can touch everybody in every family. … My purpose in trying to open the talk the way I did was, in a sense, to bring to your attention that not all is well in this case in relation to a Bill of Rights. The subject you are here discussing tonight is the question of a Bill of Rights for Northern Ireland. I’ve tried to point to the fact that our own Constitution is a creature of its time and the judges have now found that they are not able to get much more out of it; it’s something like a dried sponge. By saying these things I’m not seeking to condemn our Constitution but as I’ve tried to illustrate with the case I’ve mentioned, there are definite wants.

Constitutional Review Group: “ In relation to extending our Constitution, just two years ago the then Government appointed a group called the Constitutional Review Group. I was privileged to have had a hand in the formation of that Group and they went off and they sat for about a year, a year or more, under Dr Whitaker as their Chairman and they considered a great number of possible changes to the Constitution and their report comes to about four or five hundred pages. It makes wonderful reading for a lawyer, but most citizens would get stuck after about fifteen pages. It is highly complex. “One of the things that is most disappointing about the Review Committee’s report is that there was the opportunity of saying something definitive about the incorporation into our law of some of the principles of human rights that have been established in Europe.

European Convention on Human Rights: “There is the European Convention on Human Rights to which this state is a signatory. Now, that Convention is not part of our law. The fact that we are a signatory to the Convention doesn’t mean that it’s in the law books here. I’ve been in cases where you would open up the Convention to the judges and the judges would be in the position of having to say ‘That’s not part of our law’.

“Now, the Constitution Review Group considered the question whether the Convention should be incorporated into our law and I have to say, most regrettably , they decided not to recommend that. Had the Convention been incorporated into our law, the benefit would be this: we would be bringing to our shores a well of jurisprudence, of legal ideas related to human rights which we haven’t been able to dip into yet as illustrated by the case of the Mental Treatment Act mentioned earlier …. Regrettably the Constitution Review Group took the view that we would be better to go through our Constitution from Article 40 to Article 44 and pick out the individual items that are wanting as it were and make amendments of those individual sections. You can imagine how long that would take. It will be well into the 22nd century, I venture that we’ll get to that exercise. You can all remember how long it took to amend specific elements of our Constitution so if we are going to take that piecemeal approach, there will be so much debate and argument about every line and comma, we just won’t get around to it. I think a great opportunity has been lost in the approach adopted by the Constitutional Review Group.

“Now, having gone far over what I intended to say, I’ll call on Paul Mageean.

1. Paul Mageean (Legal Officer, Committee on the Administration of Justice, Belfast)

“Thank you. I’ve given out a little leaflet about the Bill of Rights which CAJ have produced. I’m going to basically use that for an outline for the discussion. For those of you who don’t know about CAJ, it stands for the Committee on the Administration of Justice. We are a Belfast based civil liberties group and we campaign for the highest standards in the administration of justice in Northern Ireland. Our remit extends solely to Northern Ireland so we don’t look at the human rights situation in the South but we do have a sister organisation based in Dublin, the Irish Council for Civil Liberties and certainly I know they would endorse a lot of the things that John has said. The recent decision by the British Government to incorporate the European Convention on Human Rights into British law leaves Ireland as the only state in the Council of Europe not to have incorporated the Convention.

Work of CAJ: “The sort of work the CAJ does is incredibly varied. We would look at all of the normal rights issues that you have in any normal society; women’s rights, children’s rights, social and economic rights but also, primarily because of the conflict in Northern Ireland we have focused on things like emergency laws, policing, incidents where lethal force has been used by the security forces, religious discrimination in employment. So we have a very wide remit in terms of the areas we work in. We used to use a lot of volunteers like your own group; we relied primarily on volunteers but the organisation has developed somewhat in the last five or six years and now we have five full-time staff so we are reasonably well funded. But we could always do with some more money!

Bill of Rights debate: “In terms of the Bill of Rights debate itself, CAJ really has been to the forefront of that debate over the last number of years. It has already been noted that all the political parties in Northern Ireland subscribe to the need for a Bill of Rights for Northern Ireland and it is one of the few issues on which there is general agreement. I think the difficulty is whenever people get down to the detail and start to try to sense how a Bill of Rights would work, what rights would be protected etc. It will be interesting to see if we do get an agreed text from the [multi-party] Talks over the next few days, what is in that text in relation to rights and the Bill of Rights. I’ve got a sneaking suspicion that we are not going to see a whole lot of detail, which I think in many ways may be a good thing because I think in the event that we are going to have a public debate in Northern Ireland about what rights should be protected, about how this should be done, I think that in itself will be a very healthy situation for the people in Northern Ireland.

Outline for a Bill of Rights: “Turning to this little outline which we have done, we tried to make it as straight forward as possible. Even most of our in-house legal people, when they go into the Bill of Rights debate in much detail get pretty much confused so the language in this has been deliberately pitched at the layman or woman. Basically, most of you will be aware that the Bill of Rights is a written list of the rights to which everyone living in this society is entitled. It basically protects those rights; it uses the law to protect those rights and one of the central elements in any Bill of Rights is the exclusion of any form of discrimination in terms of the rights protected. So, for instance, there would be no discrimination on the basis of gender or religion or political outlook.

“In Northern Ireland we have always said the rights agenda has not been sufficiently addressed and we have not pretended that if you protected the rights of everyone in Northern Ireland you would remove the basis of political conflict. Certainly, we feel the abuse of rights has exacerbated the conflict and I think that obviously coming from a human rights’ perspective, we would encourage the adoption of a Bill of Rights in most societies, we feel it has particular relevance in Northern Ireland.

“Additionally, the legal culture we come from which is also shared to some extent in the South is that we don’t have any laws which say these are your rights and they are protected. All we have are laws that say ‘You can’t do X, Y and Z’ and as long as what you want to do doesn’t fall within X. Y and Z you are happy enough and you are free enough to do it but you have no positive rights or very, very few.

Plain language: “One of the main things we would be interested in adopting a Bill of Rights is that it must be written in plain language. The debate must be structured in such a way that groups like yourselves who would be on the ground in the North, that the individual citizens, the churches, the trade-unions are part of that debate; that its not restricted solely to the political parties. Obviously, the political debate is vital but there needs to be a wider debate than that and I think in other jurisdictions that have adopted those rights mentioned recently in an article about Canada and South Africa I think it was established there that the debate which really began to cultivate the culture of respect and that even groups, in Canada I think it was, that had trouble with the police initially were very vocal in their hostility to the notion of a Bill of Rights, over time and through debate they began to see that they could help them as well, that it would make things clearer what they could and couldn’t do and it was easy to educate their officers.

Content of Bill of Rights: “Obviously, one of the big details, one of the big issues is what rights and freedoms should be protected in this way. We’ve already heard a lot of mention of the Human Rights Convention and the incorporation of that Convention into British law is something that we have welcomed but it doesn’t go far enough in our opinion. The European Convention is fifty years old and it shows. There is no protection in the Convention for minority rights, obviously of fundamental importance in the debate in the North. There are no community rights and no social and economic rights. Again, they are crucial to the resolution of the conflict in the North. Obviously, you will get your normal, everyday sort of thing you are familiar with – right to liberty, right to a fair trial, right to life, freedom from torture etc., but I think it is important that we build in rights tailor-made for the conflict in Northern Ireland. one or two feature such as no discrimination on the basis of religious outlook or political outlook.

Operation: “terms of how a Bill of Rights would work this is again quite crucial …. People should be able, if one of their rights is violated, to use the Bill of Rights to take the Government to court to have the practice declared invalid and if it is appropriate to get compensation. The difficulty with current proposals with the European Convention is that the Government, a week after passing this Act might very well pass another Act which would completely run contrary.

“In other words, they would guarantee our right to a fair trial one week and the next week pass something which runs completely contrary and undermines the right to a fair trial and there is nothing in the current Bill going through Parliament which would stop them doing that. What the courts can do if they think there is an inconsistency is to say that and there is an expectation that politically it would be difficult for the government to ignore it but there is no statutory obligation on them to change. That clearly is a problem – how you entrench the Bill of Rights and that is very difficult from a British legal perspective. At least in the South you have the Constitution. In other words you have the position where your rights are entrenched, they are of a higher legal order than your everyday run of the mill Acts of Parliament.

Human Rights Commission: “Also crucial in this respect is in ensuring how it works in ensuring that we have a Rights Commission. There have been discussion on a Human Rights Commission in Britain. It is one of the items being discussed at the talks and we would think it essential if the Bill of Rights is going to work properly. you have basically an agency that has been tasked to make sure law is working properly. If it feels there has been violations they can take those violations to court – if these particular Acts of Partiament violate the conventions or violates the Bill of Rights then they can take them to court. It can also advise government whether they violate legislation. You know they can say – this particular Act is going to violate the right to a free trial, it shouldn’t be brought in.

It can also raise public awareness, people would come to meetings, publish research. They could lobby on all of these issues and I think that is crucial part to make the Bill of Rights stick

Judicial enforcement: “The other key part is the judiciary who will enforce the laws. some of the countries that have adopted a Bill of Rights recently, South Africa in particular, obviously they had a problem with the old judiciary, so. in order to ensure that the Bill of Rights worked, they basically established a new court which would look specifically at allegations and violations of the Bill of Rights. So they departed from the normal judiciary, they brought in academic experts, something that has been done in other countries. If you mention it here people sort of react with complete horror particularly the judiciary. But I think that human rights is very specifically located, there is merit particularly in a society that is divided and where the judiciary do not command complete acceptance across the community, I think there is a need to bring in outside expertise. That could be legal academics or a judge from the European Court of Human Rights, together with judges from Northern Ireland. Some people are now suggesting that we would have a mixed court, a senior judge from Northern Ireland, a senior judge from the South and a senior judge from outside.

Training for judges: “But it is important that we don’t leave the enforcement to judges, who, in our opinion at least, have not been sufficiently vocal in defending rights over the last thirty years in Northern Ireland. When Westminster brought in the European Convention, the document that accompanied it, they called it Human Rights Training for Judges and they said they were setting aside ￡4.5 million for training judges The fact that they didn’t mention Northern Ireland either meant that they thought they were sufficiently trained, which we doubt, or that they didn’t want to mention how much it was going to cost to have them sufficiently trained. So we have no idea at all what they are going to do.

Restrictions on rights: “The other question that sometimes would come up is – would the Bill of Rights guarantee rights absolutely? Well, clearly not. There would have to be some balance. My right often conflicts with yours. The supreme example here in the North is the marching issue where we have Loyal Orders who protest their right to march and residents who object to that interferes with their rights. You clearly need to have some balance. most of the International documents that we look at , there are some restrictions on the excercise of rights. The government is given a certain amount of discretion, a certain amount of leeway, which it should excercise where possible in order to validate everyone’s rights.

Method of implementation: “The other thing you have to look at is how you actually get the Bill of Rights. Will it be voted through by MPs or voted on in a referendum? Taking the referendum option, if they want to change the Bill of Rights then they would need the permission of the electorate rather than simply the majority of MPs….

Will a Bill of Rights help bring peace to Northern Ireland?

“Yes, I think it will. If you look at it from a Unionist perspective, the safest way to maintain the Union is to ensure the minority community in Northern Ireland have their rights respected and protected and therefore there will be less ill-feeling. If you look at it from a Nationalist perspective , if the Nationalists are genuinely trying to persuade Unionists towards a united Ireland, the best way of doing that is to ensure that their rights are respected …..

Emergency laws: “I’ve already touched on the Emergency Laws and how a Bill of Rights it could be changed, how it could be abolished. At least in theory if we had a Bill of Rights it could be abolished however I think it would be highly unlikely…..

“We had a strategy meeting of the organisation in January. Aware that we were moving towards a settlement or towards a conclusion in the Talks we decided we would have to try and push all of our rights issues in the following six months.

“We targeted four specific issues; policing, equality, emergency laws and a Bill of Rights. Now I think in a sense they are all important but the primary focus must be on the Bill of Rights at present . That will hopefully set a framework within which all of the other items can be absorbed. Clearly, if police officers are restrained from engaging in activity contrary to the Bill of Rights, that’s something positive; police officers being trained in the early part of their careers. Emergency laws, of course the Government can still have emergency laws with the Bill of Rights – you still have emergency laws in the South even with your own Constitution but the controls would be much tighter. I think the use and abuse of the Emergency Laws in Northern Ireland really has led to widespread alienation and that has to be tackled by using a Bill of Rights. That’s one way of doing it. And also as regards equality – that regardless of people’s gender and their background that they are treated equally by the state. Then again, a Bill of Rights would go some where to doing that. It’s not going to be an immediate panacea for all the problems in the North but it will mark a significant turning point and to repeat the mantra ‘Its only when people’s rights are respected and protected that we will have a just society’. Thank you.”

2. John Lowry (Workers’ Party):

“Thank you, Mr. Chairman. I would like to congratulate the Meath Peace Group for organising this meeting tonight and their choice of topic. It has been something for a headache for you, as Julitta explained at the beginning of the meeting that a number of the original speakers had to withdraw because they are involved in other very important things at this point in time.

Different levels: “We in the Workers’ Party don’t view the Bill of Rights as something got to do solely alone with individual rights. Its got nothing to do with Nationalist ‘ rights and its got nothing to do with Unionists’ rights. It has certainly elements of all of those things but equally it is true to say it is a statement about the type of society in which we live, about the institutions of governance of that society and how they will govern all the citizens of that society and particularly the historical experience of Northern Ireland. I think that is vitally important and we will see in the construct of any political agreement which we hope will emerge by the end of this week, that a Bill of Rights and a philosophy which goes to the heart of the Bill of Rights and all the arguments which may have been made in favour of the Bill of Rights over the years in Northern Ireland, must permeate in its totality the new political agreement which must emerge. That’s because in Northern Ireland we have had indeed abuses of individual rights, abuses of political rights, the whole political basis since the foundation of the State has led to deep distrust and suspicion among all sections of the community and therefore any new political institutions which are to emerge from this political agreement if they are, at all, to have the confidence let alone the support of the vast majority of the people in Northern Ireland, there must be something there very concretely which gives expressions to the fears and misgivings that people may have.

“And therefore I think we have to raise, or consider, the question of a Bill of Rights on a number of different levels.

Certainly from our point of view we form the view that the Bill of Rights is the cornerstone of democracy as the guarantor of all civil rights of all citizens and the political rights of all groups and individuals prepared to work through the democratic process.

Fundamental principles: “A Bill of Rights must contain fundamental principles which will constitute a political statement about the nature of any form of institution formed in Northern Ireland. Northern Ireland has a historical experience of power remaining in the hands of one political party through the greater political power of the state, and this experience saw the abuse of political power and the abuse of civil and political rights. And whilst it is true that since the period since 1969 under the system of direct rule there have been major improvements, at the same time much remains to be done to assuage the fears of many citizens in Northern Ireland about the nature of the society in which they live.

Universality: “The importance of a Bill of Rights for the people in Northern Ireland lies not alone in its links to any specific constitutional proposals for government but in its universality, in its ability to provide reassurance in a situation where all political features are new and uncertain.

“I think that that statement is quite apt at this point in time because I think it is quite clear that the new political institutions which are going to emerge are going to be new and there will be a great deal of uncertainty and there will be a great deal of work to be done by all concerned to build confidence and support amongst all the citizens of Northern Ireland for the new order.

Fears and uncertainties: “Uncertainty breeds fear and particularly the fear of whatever new structures emerge there will be victors and victims, those with power and those that will suffer as a result. A Bill of Rights must address those fears for all citizens and must be capable of operating in any constitutional circumstance A Bill of Rights is a mechanism to permit political life to flourish in our society by freeing people to work collectively and publicly in their own interest. It is not a constriction of the democratic process but rather a solid foundation for it and a bulwark against abuses. The Bill of Rights must provide a positive statement of the rights and justice which each citizen can demand of the state and it must provide the means whereby those rights can be enforced if they are infringed . A Bill of Rights will offer those who are genuinely seeking justice a peaceful method of achieving it.

Advantages of a Bill of Rights: “There are a number of advantages of a Bill of Rights in the present situation as we see it in Northern Ireland. The present constitutional arrangements are totally inadequate for the protection of basic civil rights. As I said previously, Northern Ireland’s experience of the abuse of political power and the frequent disregard for civil and political rights coupled with the fact that the state elects to exercise extensive and comprehensive emergency powers, renders the need for greater protection an urgent necessity. The absence of such protection in the past provided the basis for genuine grievance against the state and created a lack of trust and confidence in the institutions of the state. But, as Paul has mentioned in the leaflet put out by the CAJ, must a Bill of Rights await a political agreement or can a Bill of Rights assist the political agreement? Like Paul, I would hopefully be of the view that by the end of this week there would be a positive answer to each of those because certainly up to now I have dwelt on the historical experience of Northern Ireland , the fact that vast majority of the political parties seem of be in a position at the moment where they will agree to new institutions in the future I think there is a need then for the Bill of Rights to be seen as a much more open and fluid expression of the political situation within society rather than simply as a legalistic mechanism on its own.

Procedures: “I would also reinforce the points made by Paul – that once the Bill of Rights has been established and the rights which such a Bill would safeguard have been clearly identified, such a Bill on its own would have absolutely no value unless procedures [are brought in] whereby that Bill could be properly enforced. And, probably more importantly, if people feel that their rights, even under such a Bill, have been infringed in some way, that there is a mechanism for redress under such a situation . So therefore, we also have expressed support for some sort of Human Rights Commission which would oversee the implementation of such a Bill of Rights and also provide for some sort of educational process within society in advance of that.

Scope and content: “The scope and content of a Bill of Rights we have given a great deal of consideration to and we have set out some seventeen or nineteen different areas in which a Bill of Rights could concern itself. In his Introduction, John expressed the view that the Constitution in this State had served the people wonderfully well, and I am sure that is true, but I was just very much struck by the example that he did give of the case of R.T. v. the Eastern Health Board. In fact, one of the rights that we had envisaged would be the right of redress against the acts of officials, state bodies, public institutions. So whilst you do indeed have a written constitution here it appears to me that were there a Bill of Rights that guaranteed that right, it may well have helped redress that case much earlier that in fact it had been.

European Convention: “Equally, on the question of the European Convention on Human Rights, while certainly that is an advanced and progressive document in itself, we feel that given the whole peculiar situation that exists in Northern Ireland that it would not be adequate just to simply integrate it into domestic law in Northern Ireland . I think there are a number of reasons for that. I think there are a number of rights which are not protected in the European Convention on Human Rights which would have to be incorporated into the Northern Ireland situation and the fact that the government retain the right to derogate in certain circumstances from the European Convention on Human Rights.

So for example, whilst the British government in international law , has for many years been bound by international norms and standards, it is also equally true that it has derogated from those laws in order to enact emergency legislation which in our view has been most unhelpful in Northern Ireland as indeed there are some emergency powers in existence in this state

Psychological aspects: “There are indeed very many important legal aspects to a Bill of Rights, but it is also important to bear in mind that the introduction of a Bill of Rights for the people of Northern Ireland at this point in time can have as much psychological importance for people in Northern Ireland as it does for legal importance.

“By that I mean that it can be a very positive statement that new political arrangements which may emerge this week will have a solid basis in law and that all the citizens in the state, regardless of what happened in the past, can feel comfortable in this state in which they are now going to live and that their freedoms and rights will now be protected and guaranteed, both as individuals, as members of communities and indeed that any new institution of government which may emerge from this new political agreement can also be held in check by society against any abuse of its power. Thank You.”

3. Cllr. Hugh Carr (SDLP)

“Thank you. This is somewhat of a change for me on the first Monday night of the month – I’m usually occupied with planning or water quality issues on Newry and Mourne District Council. It is a great change to come to the lofty heights of considering a Bill of Rights! Unfortunately, as has been pointed out, the SDLP spokespersons on this issue are already occupied or are on standby to help on some aspects of the Talks. So I have been asked to speak on this and it’s not an area that I have a particular competence on.

Time for Bill of Rights: “Over the years there has been a political context for the Bill of Rights and the SDLP along with all the parties is fully supportive of this idea at the present time. But there was a time when I and others felt, particularly in the late ‘70s and ‘80s, that certainly the Workers’ Party and to some degree also the Unionist Party, were putting forward the idea of a Bill of Rights as a solution to our problems, and while the SDLP has always been supportive of fundamental rights and personal rights, we have never seen the solution to the problem in the North coming solely from the provision of such a Bill.

“As I am sure you have heard many times, we have always seen that the solution has to come from a consideration of the internal relationships, the North-South relationship and the relationship between Britain and Ireland. And it is only when those issues are brought to the fore and when an acceptance was given and the general language of political dialogue tended to reflect these three messages the SDLP have been hammering home particularly through the leader, John Hume, for twenty five years – when these have been picked on and picked up on in the South, later on in Britain, and, I have to say by other parties in the North who are now using the language that we have been using for a long, long time – it’s in that context that the time for the Bill of Rights is ripe for consideration. I suppose we could say that the solution symphony is being created at the minute by all the various players at the Talks and certainly part of that solution will be the oboe solo of the Bill of Rights. And I think that we will find that this whole issue will fall in not drafted up in complete form.

“I would think it would be mentioned with issues along with police, like prisoners and like the Bill of Rights which will have to be further teased out perhaps through the formation of a Commission that will examine these issues in the light of whatever new structures emerge and certainly, that has been said by the speakers already. All the parties and the people in the North will have to come together and have a debate on this and tease out what other rights we are talking about .

“I think we have gone some way along the road to a Bill of Rights because we have been getting used to Fair Employment legislation, equality legislation and we have a Police Complaints Commission. While we have those things; there are many inadequacies in them The Bill of Rights gives us a chance to group all these things together and maybe tighten up on some areas where there has been looseness or slackness, areas that need to be improved and in that context I think the Bill of Rights will emerge.

“We certainly will be supporting that and we will be contributing to that debate, but I think you will find it is a debate that will be on-going after whatever happens on Thursday is announced and is something that is going to take us all a while to get to grips with. Thank you.”

4. Andrew Park (Lisburn Community Forum, member of UUP)

“Thank you for the invitation to speak to you tonight. My name is Andrew Park. I belong to Lisburn Community Forum – I’m the vice-chairman of Lisburn Community Forum, just outside Belfast. I’m also a member of the Ulster Unionist Party although I am not here speaking on behalf of the Ulster Unionist Party but I am a member. I stood at the last council elections, as John will remember. Just to give you a flavour of the area where I live – in the last council elections there were seven councillors elected, four Sinn Fein, two SDLP and one Unionist, so, in a sense, I live in a minority area within the Dunmurray cross area.

“I think this debate gives us an ample opportunity to discuss the Bill of Rights. I will give you a communities’ view. I am no expert – I don’t know the technical terms that were being outlined as I came in, obviously a Nationalist community approach. I will give you how I would feel, coming from my community and the perspective coming from a Unionist /Loyalist community which I represent.

“I was at a residential at the weekend [in Rostrevor] run by the Sign of the Times group. It was simply talking about the [NI] Talks and the different formations of how people could see things were going and the groups were pretty well made up of Northern nationalists, a few of us Northern Protestants, some people from Southern Ireland, a couple from North America. It came to one point when it went back into plenary session on Saturday we were asked what type of things we could accept and what type of things we couldn’t . Certain things came up on the board from Northern Protestants and some came up from the Northern nationalists. We could say – “in broad terms we could live with that, that’s not too bad “…. And then the Southern representatives came in and I was taken aback completely over the furore in the Southern delegation over Articles 2 and 3 and it wasn’t something that I was aware of and it brings something into this debate on the Bill of Rights.

[In relation to the Southern debate], “I think what was happening here, there was a lack of information, a lack of public debate within the community and that concerned me and it concerned the Northern nationalists. For some sort of reason or other, we assumed rightly or wrongly that when a Taoiseach was talking on behalf of a nation, he could come up and say ‘Yeah, Articles 2 and 3 – no problem, we’ll chop that out’ It’s not reality, we found that and it’s amazing, that knocked us right back.

Bill of Rights: “So in this debate, I think yes, in broad terms all communities would like to have a Bill of Rights and I think it has to go further than what has sometimes been mentioned. I think the right framework is essential towards the Talks, it’s part and parcel of the Talks, its essential. I think the basic requirements for any society are to be found within the International Human Rights Convention and that is there so I think we could use that as good practice. I think in the context of Northern Ireland there is a more important issue to be addressed, that is how we organise our society. Today is an opportunity to radically look at Northern Ireland and what should happen is that it builds in my aspirations as a Unionist and loyalist in connection to a west/east dimension, but it should also build in a nationalist aspiration within the North/South body in some way. We have to address those issues and I think we also have to take in another factor – for, as a working-class Prod, my civil liberties over the years have been just as bad as Roman Catholics within the area. Maybe because of the nationalist voice that voice has not been heard. … Us working-class Prods are every bit as suffering. I mightn’t look like a working-class Prod but I am. I think that has got to be fundamental – we’ve got to look at all the minorities. Northern Ireland is now a pluralistic state – there are minorities of all kinds. There’s a community of Travellers up there, we’ve Chinese minorities up there, there’s ethnic minorities, there are women’s issues.

Public debate: “ I think it’s important, and we’ll come back to it again when we talk about Articles 2 and 3, that it gets into the public domain. I think there has to be a public debate and I think, to use the terminology used in community work, this has to have an open-ended approach. This can’t be something that’s up there and trickles on down. It will work in two tiers. But I believe the communities have to be involved in the debate. It is important the communities should be honest about this, they will have to take part in the debate. Loyalist, nationalist, whoever, they have to keep having the debate.

Articles 2 and 3: “I think it will be a healthy experience, as it will be for you when you get down to talking about Articles 2 and 3 … If I could talk about Articles 2 and 3 for a couple of seconds. I think there has been a big, big hype in the past when the McGimpsey brothers challenged it in the courts. I believe it’s coming through from my community that the issue is a big issue. This is new territory that we live in. Hopefully the Talks will come to something with which we can all live in some sort of agreement.

“Just remember, that’s not the end. The Talks are only the beginning. The process is only beginning. Some people are investing in the misconception that everything is going to be rosy but it’s only starting, this is only the first step, there’s a big thing to go on after that, but I think we’ve got to allow that to happen, we’ve got to expand on that and I think we have got to allow that to happen about Articles 2 and 3. The loyalist position in a sense is quite peculiar which is not unusual. We are a peculiar sort of people, we change our minds when we are driving along the road sometimes. But I think what we have got to say is – Yes, there is something wrong with Articles 2 and 3. What we have to write into the Talks, if there is an Assembly which is perceived and is working in an equal way, if there is North-South bodies, which we would like to see with less powers, but I know the nationalists would say with more power, but we would see if there was a body working with every body to agree with and if there was an East-West dimension in a British Isles context what ever it happens to be, the need for Articles 2 and 3 then diminish because people’s rights, people’s aspirations will be seen within that context. I think that’s the way we might have to look at it. …… I heard people [from the South] say on Saturday ‘ Why should we give them up on account of the violence?” “What’s it got to do with us?” “Can’t you Northerners talk with Britain? We don’t need to get involved with that.” It was crazy sort of thinking.

European Union: “I think it most important that we do have a Bill of Rights. If I could just give a couple of incidents here within the European Commission for Human Rights for any country joining the European Union. The EU expects current borders to be respected by the institutions of government. Disagreement are to be settled by arbitration. Where there is dissension within a region or a state regarding the validity of that state autonomous regional government must be developed in a way so expected within that state in order to protect all ethnic groupings . Where there is tension and lack of trust across borders within Europe co-operation is expected to be encouraged and built up slowly from the basis of an already existing and functional regional government. And when a state has an ethnic affinity with a neighbouring group of people, their only interest is that their kin flourishes under conditions of good government in that neighbouring state.

I think that’s fundamental and I think that’s democratic rights and freedoms for us all. Again, can I just conclude in saying, I’m not an expert, I’ll answer some questions as best as I can. Just remember that I’m only a community worker. Thank you.”

Summing up by Chair – John Rogers, S.C: “Thank you. What comes through from these four addresses is the very distinct emphasis from all four of the speakers on what I would call “collective rights”. You recall when I started talking I started talking about the rights of individuals under the Constitution and really in this state we have only had to worry about individuals. That is I think the difference between our predicament and the predicament in Northern Ireland.

“In the addresses by the four speakers, there was this emphasis on minority rights, community rights, collective rights. The whole tenor of Mr Park’s speech just now is that he is a member of a particular community. He is talking in the context of the passages he read in the European manual dealing with dissension between states, from a position of a minority, and I think we are going to have to get used to the fact that there are a number of groups on the island . Travellers were mentioned by one speaker tonight from Northern Ireland. They are a minority in our state and their collective community rights have never been really advanced under the Irish Constitution because, in effect, they are not seen as a community or a minority. They are just seen as a bundle of individuals.

Articles 2 and 3: “I’d like to say something in response to this whole question about a debate here and I would like to encourage you to respond to this. There hasn’t been a debate about Articles 2 and 3 here in the South in the recent past. Ten years ago it was very much a subject of acrimonious debate but there is an assumption in the South that this is a settled issue. Now, we’ll know whether it’s a settled issue in a few weeks. This debate is going to take off like a rocket. As in all debates we’ve had about the Constitution, or changes in the Constitution, our community will become become polarised.

Threat to unionists: “Now, let us say a few things about Articles 2 and 3 and I don’t want to delay you, but I think there has been an awful lot of misunderstanding about it. I mean, from a Unionist perspective it seems a threat but as a lawyer I have to say to you that, when you read the Articles, I can’t really see the threat. I have to say that the claim of right to territorial entitlement to Northern Ireland quite clearly is hard for any loyalist/unionist to take. But that claim is withdrawn in Article 3, literally withdrawn. The right to legislate for Northern Ireland is withdrawn. That’s a lawyer’s view of the so-called ‘threat to Unionists’.

Right of citizenship: “Nationalists think that Articles 2 and 3 are a great protection for them but I think it’s absolutely crazy. That is not I believe what is stated at all. In fact Articles 2 and 3 provide no enhancement of nationalists’ rights. Firstly, there is no right to citizenship in Ireland . The only right to citizenship given by the Constitution is in Article 9 and in fact it relates to pre-Constitution citizens, if you follow me. All those people born since 1937 do not get a right of citizenship from the Irish Constitution.

“In fact, it was only in 1956 a provision was made for giving citizenship to the people in Northern Ireland if they elected to do so, if they elected to take citizenship. So you hear people talking at the moment about “selling out the birthright” of the nationalists in Northern Ireland if you give way on Articles 2 and 3. My view is that Articles 2 and 3 do not give any legal birthright to nationalists in Northern Ireland. This is just my opinion but frankly I can see nothing in the Constitution which gives a right of citizenship to nationalists. So, from a nationalist perspective the Constitution isn’t as great as they wish to make out

Referendum: “From a unionist perspective, it’s my view that it’s not so much that Articles 2 and 3 are so much of a threat. I just want to convey something to you which may not be well known, about this deal that’s about to be done, if it is done this week. The two governments have committed themselves since 1995 in what is called the Framework Document that the deal will be copper-fastened North and South. In other words, the people in the North will have to approve of it and the people in the South will be asked to approve of it. That’s totally separate from Articles 2 and 3, as I understand it. If it is the case that they are going to link the case on Articles 2 and 3, we’re going to have a very elaborate constitutional process. You could be going into the ballot box and you could be asked ‘Do you agree with the deal that is being negotiated in Stormont Castle? Do you buy it?’ and you may be asked to say yes or no and presumably you would say yes if you supported the peace…….’Do you want Articles 2 and 3 amended?’ is the next logical question. There may be people who don’t want them amended to a new form of words and if there were more of those people who did not want the Constitution amended then you could have a situation where a majority of the people could have accepted the deal but may not be prepared to amend the Constitution.

“So I just want you to get into your mindset that this is, as I understand it, a double process that’s coming to visit us. I expect you will be asked to vote on two things and there’s a whole question for the government then whether they will put this thing before us as a conditional amendment of the Constitution. I don’t think that that is workable constitutionally but it would be an extraordinary situation if, for instance, on the one day we were to be asked ‘Do you wish to amend the Constitution?’ and we all said “yes” and on the same day a majority of people in Northern Ireland reject the deal that they were being asked to accept. We might have found ourselves amending the Constitution on the basis that the deal would be accepted and the deal mightn’t be accepted.

“Quite apart from anything else the mechanics of this are terribly complex I think and I wouldn’t like to be a law officer advising the government on how this might be done.

North-South body: “Another constitutional aspect of this is the North-South body. The idea of a North-South body appears to be that a council or an executive or some sort of a committee would sit and decide ‘Right, we will have activity involving government type decisions in the whole of the island.” Now, if our government are going to participate in that they have to comply with the Constitution… The Constitution of Ireland says that executive power is vested in the government and can only be exercised by the authority of the government . Now, if you have free-standing North-South body or bodies exercising executive power in the entire island, in order for it to be constitutional that must act with the authority of the government or another institution of the Constitution. Now, Mr Adams, for instance, says he’s not pleased that in the event of that North-South body being established, the Assembly in Northern Ireland would be entitled to veto the North-South body decision. But under our Constitution at the moment we are obliged to commit our government to having that veto. So it seems to me that what’s sauce for the goose must be sauce for the gander. Now, I sometime wonder, you know, who is advising people and who understands the nature of our legal system. One would have thought that Mr Adams and other people that voice similar views to him would know that under our Constitution any North-South body could only act with the authority of the government.

QUESTIONS AND COMMENTS. (Summaries of main points only)

Q.1. [re North-South bodies]: “…Are you saying that if there is a cross-border arrangement, Article 3 may not allow them?”

Chair (John Rogers): ”… There are a number of Articles in the Constitution which may make if difficult to see how they could have cross-border institutions. I think they’d have to amend the Constitution anyway, leaving aside any thing that we want to do to please people … if we want these North/South bodies, we will probably have to amend Article 3, possibly Article 6 and probably Article 28. But you will not be able to get away with not amending the constitution if you want these North/South bodies. … Particularly that is so if you want a North/South body which is independent of the Irish government . Any North/South body that you make without amending the Constitution cannot be independent of the Irish government. ….

“Well, you are going to hear an awful lot about this in the next three or four days and then for a number of weeks thereafter. And I fully agree with what was said by Andy Park – You and I have not discussed this. This state has not discussed these issues. He [Andy] was talking about the reaction he saw among a group of people at a residential meeting last weekend. [Questions/2]

“ I see that a lot in the last four or five years – I attend things perhaps twice a year where I meet people from all over the island and the people most resistant to change of any sort are our people. The Northern Irish people have to change; they know it. There has been so much trouble, so much division, so much injury and hurt they have to change. We have lived in extraordinary comfort and we don’t have the same compelling reasons to change and we’re all very comfortable. To hear the nature of the debate that these four speakers have had about the Bill of Rights says it all. They have to dig much deeper; talking about minority rights, community rights as distinct from needs. Generally speaking, as a lawyer in this state, I only have to look after individual rights or protect the rights of individuals.

Q. 2:[Accepting change]: “… I think you’re pessimistic when you say people won’t change – you may be looking at it from a legal point of view. I believe the majority of people will accept change. I think people are realistic enough to see that something enacted in the 1930s needs now to be changed. People will accept change if it’s necessary….”

Chair (John Rogers): “I think people are willing to change. I think there is a sense of enormous change in the country but when it comes to it … I have this sense that the implications of what we are about to do haven’t dawned on people. I mean, let’s be quite clear: your government is going to be participating in the government of Northern Ireland. Now ask yourself the question, do you want that? And government brings responsibility …. I think a lot of people will think twice when they are asked that question ‘Do you want your government making decisions for and being responsible for those decisions in Northern Ireland?’

Andrew Park: “What was clearly shown at the weekend was this question that people hadn’t debated. I think one of the things is to know why you are changing. Just to take on change for the sake of peace in Northern Ireland, way down the road there’s going to be debate on that. …. If there is a will to change Articles 2 and 3 for the right reasons not just for, as you say, keeping the “Prods” up there quite happy, changing for the sake of keeping somebody in. I think that would be the wrong reason for changing your Articles 2 and 3. I think you need to debate it. I hope you don’t mind me as a Northern unionist saying things like that – that you have to do something but its quite right. ….. We’ve had to look at change, and it’s been a hard process for us, very, very hard. The debate is still going on and you have seen the polarisation of new paramilitary groupings within the loyalist community….”

John Lowry: “I think a general point that has come through here, it may seem a contradiction but a lot of people are given the impression through the news reports when they heard, particularly last week, that a deadline of this Thursday had been set for an agreement. I think that people outside of Northern Ireland, it appears to me, had some sort of sense that there had been no discussion and no debate going on and then suddenly the political parties in Northern Ireland were told ‘Look, you’ve got a week to come up with it’ when, in fact, that’s not been the case. There has been a fair amount of political debate going on for many years even amongst and across the political parties in Northern Ireland so all of the issues which need to be addressed have been fairly well identified within Northern Ireland for some time now and there has been a fair knowledge across the political parties of the respective positions that each party would hold and even, dare I say it, a fair knowledge of where the compromises which are going to be necessary will have to be found. So for many of those reasons … more people within the political parties in Northern Ireland are more optimistic about an agreement being reached than people outside of Northern Ireland. At the same time, that’s something which is beginning to worry me quite deeply as well, because listening to the comments of John and Andy, about a residential at the weekend and so on, the fact is that people North and South are going to be asked to ratify whatever political agreement may emerge in a referendum by the end of May. And I’m a member of a party that is organised on an all-Ireland basis and even members of my own party from Dublin and Cork over the last number of months have been asking me about many of the issues that have come out into the public domain and I think that there could be a very real danger that many of the issues which the Southern electorate are going to be asked to make comment on may not be fully understood or, even at worst, there may be ample room because of that lack of understanding for some fringe groups to sufficiently muddy the waters that it could upset the whole apple-cart particularly in relation to Articles 2 and 3. I think if that is the case we could get a lot of bogeymen coming out talking about Northern nationalists being sold out and so on if these Articles are touched and my fear would be that the bogeymen might do enough to muddy the waters and it would indeed be very ironic if the Northern political parties came up with an agreement which the majority of them could live with that was passed in a referendum in the North and wasn’t passed in the South. Maybe even if it was passed, but with a great deal of confusion. And you know there have been enough rows about the Constitution here and interpretations of it to cause that confusion and I think John is right, all the focus has been on Articles 2 and 3. My suspicion is that you may very well be asked to make several constitutional amendments and I think it is absolutely correct that the institution of North/South bodies will require, in my view, constitutional amendment to the South as well and that’s because even within the Framework Document which is so beloved by nationalists makes it quite clear that North/south bodies will derive their authority from the Dail and from any new assembly…..”

Cllr. Hugh Carr: “I think the electorate both North and South has shown itself over the years, particularly in relation to constitutional change, to be fairly sophisticated and very capable of getting to grips with the various issues that are involved. I tend to see the Constitution most certainly as the property of the people and not the property of the Supreme Court or the property of a particular political [party] or whatever. So I think the general population are well capable of having the issues explained to them, taking them on board, thinking about them and coming up with the right answer. I have every faith and trust in the people in the twenty-six counties – they will come up with the right answers.

“I come personally from a background of what you might call constitutional nationalism, very much into Conradh na Gaeilge and things like that and maybe because of coming from that background I have always had a particular attachment to Articles 2 and 3. My attachment to Article 3 was merely that I hoped I lived to see the day when it would be deleted from the Constitution and that all the other Articles would move up one. But having said that, and I remember one SDLP conference in my youth, getting up to propose a motion that Articles 2 and 3 must never be changed and I was spoken to by some of the executive members at the time who managed to convince me to accept an amendment from the executive on the matter, which I did. But I think what Articles 2 and 3 did for me anyway, maybe for other people as well, they were sort of a psychological soother in the aftermath of partition and the reality of partition, where everything in international law seems to point to the settlement of 1921 was the final word on the Irish problem and this little Article in the constitution of ’37 said ‘No, that’s not quite the case’. I think we all move on from notions that we have in our youth of simplistic things like that and this particular Article, we have to be prepared to incorporate the notion of consent into the Constitution and to incorporate the notion that what we are dealing with is the right of people to be Irish. If the Articles in the Constitution can be framed in such a way as to say that a man or a woman in Rathlin Island has as much right to be Irish as the man or woman in Inismaan or Inis Mor, then I’d be happy enough. That the person living in County Down can say ‘I’m as Irish as the person living in Cork or Kerry’, I’d be happy enough. And we have to change them because the unionists over the last ten years have identified this as a problem for them and if we are going to move on in advance and particularly if we are going to get the North/South bodies that are so important, because these North/South bodies will be dealing with practical issues, issues of economic development, infrastructure, perhaps harmonisation in terms of education, tax. Who knows ? I think the possibilities for this body could be quite exciting in the future. But to make people have the confidence to involve themselves in this we need to make a change, to make sure of the consent which underlines the future constitutional change both North and South and that there is no threat.

“I don’t think personally that the Articles were a real threat to unionists. I think they have hyped them up out of all proportion. I haven’t seen any amendments but I presume that the amendments that will be proposed will be acceptable to our parties and will be drawn up in consultation with the people most affected by them and I would imagine that I would be able to support them.

Paul Mageean: “……I think it is very healthy that this debate is beginning now. The one thing I think people should shy away from is the notion that you’re anti-peace if you don’t buy the package. We have to be honest. There’s a real danger, I think, both North and South that people will buy a package simply because it’s there. If there is insufficient protection for rights, the CAJ will have to say that… The debate must be free from intimidation. Part of the peace process should be people debating the change….”

John Lowry: “……….Articles 2 and 3 are an anachronism within your own political system because successive Irish governments have turned their backs on that interpretation of Articles 2 and 3 …. Article 1 of the Anglo Irish Agreement makes it clear there will be no constitutional change in the status of Northern Ireland without the consent of the majority of people in Northern Ireland. And in terms of the territorial claim, it’s a well used phrase of John Hume’s ‘It’s not territory that matters, it’s people that matter.’ A border is but a line on a map. How much of this is merely going to reflect a sea-change of political thinking which has been happening for some time? I think you should look at it in those ways.

Bill of Rights: “ …Can I go back to a remark that Hugh made earlier in relation to a Bill of Rights and looking at it in terms of a solution. …. I don’t think there is much need to be apologetic about that because I think the point that is raised in the CAJ leaflet albeit that it might be a bit out of date by the end of the week, and they ask the question ‘Does a Bill of Rights have to await a political agreement?’ Well, my answer to that always would have been ‘No’ because whether the political parties in Northern Ireland over the last twenty-five years really came up with an acceptable form of government in Northern Ireland or not was not an argument for saying the rights of the citizens of Northern Ireland should be diminished and that’s why the Civil Rights Association and everybody else concerned with civil liberties continued all through those years, even in the absence of agreed forms of government, to campaign for civil rights for all citizens and to highlight abuses of those rights where they took place. Nonetheless, hopefully, that has become a non-argument now but nontheless too I think we shouldn’t diminish the importance of the question of rights as part of this new agreement. It can’t be something that is just tagged on at the end of all other aspects of the agreement.

“If we are truly saying that we are creating a new order, a new society in Northern Ireland, that we are putting the past behind us and looking to the future to create a new society, then a legal framework must be found and it must act as a statement of the type of society we are trying to create and the political arrangements that are going to govern us.

CHAIR (John Rogers): “Let me say something about the Bill of Rights as a single issue. I was actually Attorney General in 1985 when we made the Anglo Irish Agreement and I just looked at it the other day because there’s a section in it which specifically committed the government to looking at the issue of establishing a Bill of Rights. Now it looks like thirteen years have passed and the two governments weren’t able to agree on the desirability of a Bill of Rights.

Q. 3: Have we enough time for the debate?

Chairman: “I think the question should really be addressed to the floor. Do you feel you’ve enough time to consider this between what in effect will be the 9^th April and the 22^nd May? That’s the question that has been put…..

Member of audience: “Deadlines do focus minds…”

Hugh Carr: “I agree with the deadline that George Mitchell imposed. Had he not imposed that we could be going on until this time next year still going around the same mulberry bush. It was the fact that he imposed a deadline that focused people’s minds and I think the debate will be short, sharp and meaningful and, you know, why do we need to prolong it? Issues can be accordioned into six weeks. I think that’s sufficient.

Member of the audience: “ We’ve been talking and thinking for many years – peace talks have been going on since 1992. Every dog on the street knows we’re going to replace the Articles. …

Q. 4: “On the Human Rights Commission – could the North/south body do this?

CHAIR (John Rogers): “.. If you have a North/South body that has extensive powers, that body has to be subject to law normally and what court is to be addressed when you are going to supervise the North/South body? Are you going to have you going to have more courts, all-Ireland courts, perhaps? It’s a simple question of constitutional law; if you have an all-Ireland body of any sort to what court is it amenable?

Member of the audience: “We have already ceded sovereignty to the EU. Constitutional lawyers can devise the answers.

Paul Mageean: “All-Ireland bodies will need legal mechanisms and monitoring mechanisms”

John Lowry: “There’s a lot of scope for North-South bodies, but the issue will have to be thought through more fully. … There are practical difficulties with an all-Ireland dimension, e.g. with the Bill of Rights, and there is also British opposition to the idea of a Bill of Rights for Northern Ireland

CHAIR (John Rogers): “What do people here think of the Council of the Isles idea? That would be linkage between Wales, Scotland, Westminster, maybe a parliament for England and Stormont and the Dail as a formal Council where matters could be discussed and resolved through a process of co-ordination and implementation of mutually beneficial things ….. How do you feel about that?

Member of the audience: “How often will they meet?”

CHAIR (John Rogers): “Well, if they are politicians they will go as often as they can. …. This came out in a statement called a Proposition Document in January, and I was rather surprised at this emerging. Now, frankly, I’ve changed my attitude. At first I was quite resistant to it and the reason I’ve changed my attitude to it is that I looked at what would happen in Britain. Britain is in a sense becoming very fragmented, it’s becoming a very regionalised state. From being a kingdom, it’s now a place of regions….

[sections of tape inaudible]

Andy Park: “…..In view of the already massive co-operation between the United Kingdom and the Irish Republic covering many fields and stemming from their geographical proximity and shared history – there shall be a body called the “Council of the Isles”, composed of representatives of the British and Irish Governments and regional administrations. What was a unionist demand was taken on board by both governments….”

Member of the audience: “I don’t think there is sufficient time for debate – people have been thinking but we don’t know what is involved. We have vague ideas. It’s very important that people with reservations should be able to express them.

Member of the audience: “Look at the Maastricht referendum – the Government was less than honest. The politicians came together to impose their ideas.

CHAIR (John Rogers): “Well, the interesting thing about Maastricht was, about ten days before that referendum, if the referendum had been that day I think it would have been lost. In fact, the political parties had to come to the rescue of the campaign and all parties put their shoulder to it. I think only Democratic Left stayed out.

Member of the audience: “The public in the south have been excluded from the debate. Significant decisions have been made – I haven’t been informed properly. No responsibility has been taken by the Irish Government to engage Irish people. I feel a certain level of emotional blackmail. If we don’t fully understand, we will be seen as “pulling the plug” if we vote “no”.

Member of the audience: “I don’t think there is sufficient time. … Everybody here is obviously interested but a lot of people have had a reluctance to open their minds and try and understand. The abortion debate is a glaring example. I say, put a reasonable deadline on it.”

Q. 5: Time for debate: “The mechanics of the referendum are going to be so complex. Does the Chairman think we have enough time?”

CHAIR (John Rogers): “ I thought we would have enough time until recently. About a month ago I had to become engaged with all of this …… and it dawned on me that it was going to be very complex. I mean, I’ve been reading these papers every now and again for the past four or five years since the Downing Street Declaration and every now and again I have to delve back into them so I had some understanding of what all this was about. It wasn’t until I came along and said ‘How are we going to go about this?’ that I realised that Article 46 of the Constitution is going to be a problem … you cannot have two proposals in a bill to amend the Constitution. We’re going to have to put something very, very subtle together to get around this constitutional provision and as soon as you get into subtlety in a major and democratic exercise like this, there is a huge capacity to go wrong ….. I think there has been a lie perpetrated about this, there has been a lie told by us to Northern nationalists about the extent of their rights under our Constitution. I think that their rights under our Constitution are very limited but they believe they are extensive. So do Southerners. Now we are going to have to eradicate a lot of double thinking and plain lies and mis-representations that have been made down the years and we have a very short time to re-educate ourselves. So I would have thought a month ago that this six week gap would be enough to do this but although we have all been growing used to the idea that we are going to have to do something soon down here I think the Northern people that you meet are much more pragmatic.

“They are tremendously pragmatic, even though they are very divided now and have been deeply divided, they want to do business. I think we are very complacent and we will have to do business in a very short period of time. I think the point about the young is, I’m forty eight and I’ve been living with this since I was about twenty-two or twenty-three, and I’ve some sense of understanding. But if you were twenty-two now this would take some getting to know, because you don’t have the sense of 30 years of trouble.

Staggering of referendum: “The question is … Should people be given the right to vote separately on the two issues, firstly on the settlement. Do you think the settlement is a good thing? Secondly, to vote on Articles 2 and 3…….[tape inaudible in parts] … If you voted for the settlement then you’d have a week to think about it and then you’d say I’m going to copperfasten that vote….

Member of the audience: “We’ve been away from this country for 30 years – we have met a lot of people who are not informed…. Politicians have a grave responsibility to get out in words of one syllable what is involved….

Member of the audience: “ There is a great risk of absenteeism – particularly people who are confused. Perhaps there should be non-legal people advising the Attorney General as well. It would be a travesty if you ended up with a referendum where people were greatly confused…”

Member of the audience: “Could a vote be taken on the Agreement and then later on Articles 2 and 3?”

Chair (John Rogers): “…. Maybe we’ll have to deal with Articles 2 and 3 first. The question is – are we just doing this to get a deal or are we doing this because we believe it’s right? I mean, do we believe in Article 2? Article 2 reads: “The national territory consists of the whole island of Ireland, its islands and the territorial seas”. That includes Belfast; the national territory is Belfast, Derry, Warrenpoint – it’s everywhere. That’s the national territory. Now it isn’t – because De Valera set about drafting a third Article in which he said: “Notwithstanding what we said above, the laws won’t apply there”. It’s the greatest piece of double talk . I don’t mean to disparage our Constitution but I think one would have to speak in the way I’m speaking now for people to understand the degree of double-speak that’s involved. When we were working on the Anglo-Irish Agreement in 1985, I spent days looking at Articles 2 and 3 trying to figure what did they mean. How could he have it both ways? And that’s what it is, he had it both ways….

Q: “Some people say Article 1 is the important one?”

CHAIR (John Rogers): “Article 1 does not define the nation, unfortunately. It simply declares the sovereignty of the Irish people, that’s all it does. And in fact it doesn’t use the expression ‘the Irish people’ , it talks about the Irish nation and it doesn’t define the Irish nation. If we were to go around the room we would get a great number of definitions of the Irish nation. Does the Irish nation comprise people who were born here but who have lived in Bologna for thirty years? Are these members of the Irish nation?

“.. In 1976 the Supreme Court made the point that Article 1 was, as it were, a political statement about the nation. They went on to elaborate that by saying the nation, in adopting the Constitution, made a claim to Northern Ireland as an expression of self-determination and went on to explain that Article 3 was designed to withdraw that and yet to state to the community of nations that although we had withdrawn it, we are not estopped from believing in it. It’s a give, a take, a give-back and a take-back. Now regrettably, the Irish nation is not defined …

“… Really all we can do is try to talk about the nation in terms of plurality and then go on to speak about respecting the divisions and traditions of different heritages…..

Preamble to the Irish Constitution: “For what it’s worth, if you want to know what my own views are, I think we should get rid of the Preamble and I would get rid of Articles 1, 2 and 3 and I would complete reconstruct the Constitution. You see, in the Preamble it says the state is Eire, the twenty-six counties and in the preamble it says ‘ We, the people of Eire do hereby adopt’. Actually, you should read the Preamble to the Irish Constitution, it is written in language that would surprise you. I think I’ll read it:

‘In the name of the most holy Trinity, from whom is all authority and to whom, as our final end, all actions both of men and States must be referred, we, the people of Eire, humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, who sustained our fathers through centuries of trial, gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, and seeking to promote the common good with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, do hereby adopt, enact and give to ourselves this Constitution’

“Well, think about that. If you were a Jew, is that the plural constitution under which you would want to live? .. We don’t know what’s in this document , I don’t mean to be disparaging but we don’t. We haven’t had to read it. We have spoken glibly about Articles 2 and 3 without looking at the totality of what’s in the document ….

Hugh Carr “I think there’s a danger of broadening the issue. I think what John is saying is that we need a new constitution and the Constitution, as I understand it … I think our Constitution derives also very much from the natural law position and that that has been important and it’s not just positive law that inspires the Articles of our Constitution. As a Christian, I’m quite happy about that. I still think it’s possible to have a pluralistic society within a broadly natural law/Christian framework and I think a model society would attempt to do that. So I would, from a purely personal point of view, not from a party point of view, I would have very strong reservations in ditching the natural law tradition in the Irish Constitution.

“But to get back to a point I wanted to make – We are looking for a balance politically for constitutional change. One of the things that hasn’t been mentioned in this whole debate on constitutional change is that we are also seeking with the British Government to alter the Government of Ireland Act and to change the nature of their claim to the North and to their sovereignty in the North, change it in a way that is non-threatening and also consensual, that the whole attitude of consent is brought in there. And I think that that is important to mention that it is within that context that these changes are being sought. I really do think that we have to wait until we see what the text is. I appreciate that six or seven weeks is not a very long time but, unfortunately, I’m not twenty-one and you’re forty-one. I have lived through a lot of talk about the Constitution. I remember studying it in college, the ’67 Committee on the Constitution, looking at that. We had the whole constitutional crusade of Garrett Fitzgerald and though these Articles have been in the public domain and have been talked about, I feel comfortable and always felt comfortable with the ’76 judgment following the Kevin Boland case … I am glad to hear the former Attorney General say that he didn’t know what a constitutional imperative is because I certainly haven’t worked it out. But there is a pragmatic imperative. A pragmatic imperative is peace and living with difference on this island and in particular, differences that have caused the problem and the differences that have caused bodies in ditches, bits and pieces of bodies flying through the air, community tensions, Drumcree and the likes. Those are the things that have to be solved and I believe it’s with balanced political change in the context of the three-strand approach that we’ve been working so hard at in the last few years. If we put it all inside that context, jurisprudence and political theory are all very important but let’s also be a little pragmatic about it, be a little flexible about it and try to walk a little bit in the shoes of out opponents on all these issues and try to smooth the thing out in that way. So yes, there are a lot of issues that are very important but let’s not forget the other things that have to be sorted out as well….”

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Meath Peace Group Report. 1998

Compiled and edited by Julitta Clancy.

APPENDIX:

A BILL OF RIGHTS FOR NORTHERN IRELAND – YOUR QUESTIONS ANSWERED

[Committee on the Administration of Justice, Belfast]

1. What is a Bill of Rights? A Bill of Rights is a written list of the rights and freedoms to which everyone living in a society is entitled. It says that the rights and freedoms it contains must be protected by law, with no distinction being allowed between people on the basis of an irrelevant factor such as their religion, political belief, gender, colour or disability.

2. Why is a Bill of Rights needed in Northern Ireland?

All that exists in Northern Ireland at the moment is a collection of different laws which tell us what we cannot do rather than what we can do. These indirectly protect some rights some of the time but we need a Bill of Rights to ensure that many more rights and freedoms are protected much more of the time.

3. What would a Bill of Rights look like? A Bill of Rights could be part of a written constitution or a separate legal document. As it is so important, most countries insert it into their written constitution. Northern Ireland already has a partially written constitution, so a Bill of Rights could be inserted into that, along with effective enforcement mechanisms. The crucial thing is that the Bill of Rights must be made superior to all prior and future laws. It must also be written in plain terms which everyone can understand.

4. What rights and freedoms would a Bill of Rights protect? The precise content of the Bill of Rights should be a matter for debate among the people of Northern Ireland and their representatives. Some countries – such as Canada and South Africa – have adopted a “tailor-made” Bill of Rights to cater for their own particular circumstances. Others have modelled their Bills on international documents such as the European Convention on Human Rights. The rights protected always include the right to life, liberty, free speech, a fair trial and freedom from discrimination. Social and economic rights are often protected too, and should be in Northern Ireland.

5. How would a Bill of Rights work? A Bill of Rights would allow people to go to court to have any laws, practices or decisions which appear to violate their rights declared invalid. Once declared invalid, people would no longer have to abide by those laws, practices or decisions and, if the court agreed that some loss had been suffered as a result of the violation of rights, it could order compensation to be paid.

6. Who would enforce a Bill of Rights? A Bill of Rights could be enforced by the judges who operate the existing court system in Northern Ireland or by people specially appointed to perform the task. Canada has adopted the first option, South Africa the second. The important thing is that whoever enforces the Bill of Rights should be properly trained in that field of law.

7. Would a Bill of Rights guarantee rights absolutely? No. Almost every right has to be limited in some way or other, usually because of a conflicting right of other individuals or of society as a whole. For example, the right to free speech does not carry with it the right to stir up ethnic hatred and the right to liberty does not mean that a convicted criminal can never be imprisoned. The balancing of rights is often a very delicate matter, but at least a Bill of Rights provides a sound framework within which to debate where the balance should be struck on any particular controversy.

8. How could Northern Ireland get a Bill of Rights? There are a variety of ways in which a Bill of Rights could be introduced. It could be made by parliament in the same way as any other Act, or it could be made by parliament under a specially adopted procedure, such as one which requires the support of two-thirds of all MPs. Alternatively a Bill of Rights could be made by an elected Assembly in Northern Ireland if parliament at Westminster gave it that power. No matter what way the Bill is made it could then be submitted to the people of Northern Ireland for approval in a referendum.

9. Does a Bill of Rights have to await a political settlement? No. A Bill of Rights is not about the distribution of power between political parties, nor about who should govern a society. It is about the protection of people’s rights regardless of who holds political power. A Bill of Rights would therefore not affect the constitutional position of Northern Ireland. In fact all political parties in Northern Ireland are in favour of having a Bill of Rights

10. Would a Bill of Rights help make peace in Northern Ireland?

Yes. A Bill of Rights would reassure people of all political persuasions that, whatever the political future of Northern Ireland, their rights and freedoms will be guaranteed protection and they will be treated fairly. It would help to establish confidence in the justice system and assist in paving the way towards a non-violent settlement of differences. It would not, of course, solve all of Northern Ireland’s problems but it is an essential ingredient to a lasting solution.

11. If there were a Bill of Rights, would there still be emergency laws?

Possibly, but they would have to conform with the standards set out in the Bill of Rights. The Bill of Rights would help to make sure that the emergency laws did not themselves improperly breach rights and freedoms.

12. How could a Bill of Rights be changed? The method to be chosen for making alterations to the Bill of Rights partly depends on how it is originally made. If, for example, it is originally made by parliament then it should probably be changed by parliament too, but if the Buill is originally approved in a referendum, then any changes should probably also be approved in a referendum. The Bill itself should indicate how it can be changed and which parts, if any, are to be immune from change.

13. Could a Bill of Rights be abolished?

In theory, yes. It is impossible to make laws that can never be abolished. But it is possible very strongly to discourage abolition of the Bill of Rights by inserting into it a clause saying that it is to remain in force even if future laws expressly say that it is to be abolished.

14. Do other countries have a Bill of Rights? in some form or other. This includes all countries in the European Union and all countries in the Commonwealth.

[reproduced from leaflet distributed by the Committee on the Administration of Justice, 45/47 Donegall Street, Belfast BT1 2FG]

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Meath Peace Group Report 28 (1998). Compiled by Julitta Clancy. Talk videotaped by Anne Nolan The Meath Peace Groupis a voluntary group which was founded in April 1993. Aims include: 1) Promoting dialogue, understanding, mutual respect, trust, co-operation and friendship between people North and South. 2) Encouraging and facilitating ordinary people to recognise their role and responsibility in helping to promote peace and understanding. Contact names(all in Co. Meath): John and Julitta Clancy, Parsonstown, Batterstown; Anne Nolan, Gernonstown, Slane; Pauline Ryan, Woodlands, Navan; Philomena Boylan-Stewart, Longwood; Michael Kane and Paschal Kearney, An Tobar, Ardbraccan, Navan

(C) Meath Peace Group; re-posted to website 2 October 2014 [Julitta Clancy]