A. Historical/Political/Socio-Legal and Economic Background

The political and legal history in all three jurisdictions was characterised by inequality albeit on different scales. In South Africa, this was manifested by forty-six years of apartheid rule by the National Party (‘NP’). Under apartheidFootnote ²⁰ numerous statutes were passed by the NP which allowed for the development of what has been described as a as a ‘wicked system of law’.Footnote ²¹ Under this system, the majority of black South AfricansFootnote ²² suffered systemic discrimination in a number of areas such as employment, education and housing.Footnote ²³ Even prior to apartheid, there already existed a ‘wicked system of law’ under the auspices of the infamous Native Land Act 1913 and the Development Native Trust and Land Act of 1936 which effectively sanctioned the dispossession of land from indigenous people. The Constitution of 1910 also excluded black people from parliament and denied most of them the right to vote.

The above statutes were rarely challenged by the courts as, during the apartheid years, South Africa operated under the doctrine of parliamentary sovereignty. Under this model, the judiciary operated in an extremely ‘executive minded’Footnote ²⁴ manner and came to be regarded in the eyes of the majority as a biased arm of government dispensing ‘white man's justice’.Footnote ²⁵ Not only did the South African government show disregard for the rights of the majority of South Africans, interestingly, for the purposes of this article, the NP government viewed international and comparative law as irrelevant:

This ambivalent attitude was manifested as the South African government refused to sign any international treaties until 1994 with the exception of the UN Charter of 1945. Furthermore, the NP government abstained from voting on the General Assembly's Universal Declaration of Human Rights in 1948 dismissing it as communist propaganda.Footnote ²⁷ However with South African's new dispensation in 1994 which heralded the introduction of a new constitution,Footnote ²⁸ the role of international and comparative law moved from the ‘margins into the mainstream’.Footnote ²⁹ International law was no longer regarded as irrelevant but played a significant role in mobilising concern against apartheid.Footnote ³⁰ South Africa presents an interesting case study to examine the role international and comparative law has played in the drafting of the equality provision and the Bill of Rights generally.

As 1994 is a landmark in South African history, 1982 is equally important for Canadian history as this was the year when Canada, like South Africa, moved from the British model of parliamentary supremacyFootnote ³¹ to constitutional supremacy. Prior to 1982 courts could not set aside a legislative act except on allocative or federalism grounds. Under this system inequality was rife and was experienced by a number of groups such as indigenous people, women and Francophones. For example, up until 1930,Footnote ³² women were not recognised as persons which as a consequence, prohibited them from holding elected or appointed offices and from entering into training for various professional occupations, especially in the legal field.Footnote ³³ It was not until 1940 that all Canadian women gained the same federal/provincial voting rights as men. Federally, Japanese Canadians could not vote until 1948 and status Aboriginals gained the franchise only in 1960.

The French Canadians or Québécois also suffered language-based discrimination. A series of legislative enactments across Canada seriously restricted French-language education and virtually eliminated the use of French in provincial legislatures and courts outside Québec.Footnote ³⁴ Likewise, the Jewish community also experienced discrimination and were described by the Minister of Justice in 1906 as ‘outsiders’. It was not desirable for ‘us’ the Canadian citizens, to be ‘too considerate of the wishes of alien immigrants …’Footnote ³⁵

Even with the introduction of the Canadian Bill of Rights in 1960 (‘CBOR’), discrimination still took place.Footnote ³⁶ This was due primarily, though not exclusively, to the limited formalistic wording of the equality right (see below) and to it being an ordinary Act of Parliament. As the Bill of Rights had no constitutional status, discriminatory federal laws could not be invalidated.Footnote ³⁷ The only ‘notable exception’,Footnote ³⁸ when the Court by a slim majority of five to four struck down an inconsistent statute, was the case of Drybones.Footnote ³⁹

Like South Africa, there was increased dissatisfaction amongst both Canadian and non-Canadian citizens with this model of parliamentary sovereignty and an increased recognition that citizens should not have to rely on the grace of the legislatures for protection of their rights. Thus, from the late 1960s there were concrete efforts, especially from women in the political sphere, to obtain greater recognition of their rights. Their efforts along with others coupled with the backing of the Prime Minister at the time, Trudeau, paid off as the Canadian Charter of Rights and Freedoms (‘Charter’) was introduced. This was part of the Constitution Act 1982.Footnote ⁴⁰ As will be seen shortly, international law played a key role in helping to strengthen rights protection which ultimately was reflected in the Charter.

Northern Ireland's political and legal history was dominated by half a century of one-party rule wherein the Nationalist/Catholic minority suffered discrimination on grounds of religion and political belief at the hands of the Unionist majority in areas of public and private employment, housing, education, welfare, policing and emergency law.Footnote ⁴¹ Similar to South Africa and Canada, discriminatory legislation was allowed as the Northern Ireland courts, which were predominantly dominated by the Unionist community, were reluctant to find against parliament due to the doctrine of parliamentary sovereignty.Footnote ⁴² Northern Ireland is also emerging from decades of violent political conflict. As such it may be termed a ‘conflicted’ or ‘transitional’ society with similarities to other transitional countries such as South Africa.Footnote ⁴³ As well as the violent struggle, from the 1960s onwards, there was also a push in several other circles for equality and a Bill of Rights.Footnote ⁴⁴ However despite formal acceptance by political parties of the need for a Bill of RightsFootnote ⁴⁵ and while the previous constitutional agreements set the seeds for a Bill of Rights,Footnote ⁴⁶ it was not until the advent of the 1998 Good Friday Agreement (‘the Agreement’) that the debate moved from a somewhat abstract one to a very concrete phase. The Agreement required the Northern Ireland Human Rights Commission (‘NIHRC’), a statutory body set up by the Agreement, to advise the Secretary of State on a Bill of Rights for Northern Ireland. Thus, unlike South Africa or Canada, the Agreement did not contain a Bill of Rights. Instead, the Agreement enjoins the NIHRC:

Although the above paragraph is replete with ambiguous phrases relating to the NIHRC's mandate concerning the Bill of Rights,Footnote ⁴⁸ for the specific purposes of this article, it is clear that the NIHRC is mandated to draw upon international standards/experience. In other words, this explicit injunction paves the way for constitutional borrowing and/or internationalisation. However, as the following section illustrates, this injunction has resulted in both positives and negatives which make Northern Ireland a particularly pertinent case study for the purposes of this article.

B. The (Non-)Usefulness of Internationalisation and Constitutional Borrowing

The above brief and non-exhaustive overview illustrates that due to the inequalities in the three jurisdictions, unsurprisingly, as they embarked on designing their Bills of Rights, equality occupied a key position. For example, in the South African Bill of Rights, equality is the first right. However, notwithstanding its centrality, as equality is an amorphous concept, all three jurisdictions experienced difficulties. These difficulties resulted from the implications of incorporating controversial notions of equality into an equality guarantee.

Broadly speaking, a distinction is frequently drawn between formal and substantive notions of equality. Formal equality requires that all persons who are in the same situation be accorded the same treatment and that people should not be treated differently because of arbitrary characteristics such as religion, race or gender. This formulation resonates with the original Aristotelian conception of equality; that like cases should be treated alike. A substantive notion of equality is concerned with making sure that laws and/or policies do not impose subordinating treatment on groups already suffering social, political or economic disadvantage. The focus is on the group and on the impact/effect of the law on its social, economic or political conditions. It recognises that sameness of treatment can reinforce inequality and, in certain circumstances, equality actually requires differential preferential treatment/affirmative action.Footnote ⁴⁹ One of the difficulties facing the drafters was therefore: should the equality right incorporate affirmative action?Footnote ⁵⁰ In other words, can discrimination, which generally refers to differential treatment on grounds such as sex, race and so on resulting in the individual or a group of individuals being disadvantaged, be fair or legitimate? The decision in all three jurisdictions was yes, though in Northern Ireland, the final decision has yet to be approved (see below). Primarily, though not exclusively, the drafters were able to reach a decision with the help of international law and constitutional borrowing. For example, the drafters in South Africa sought guidance from the International Convention on the Elimination of all Forms of Racial Discrimination (‘ICERD’) and the Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’). Although, arguably, the wording of ICERD ‘special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals … shall not be deemed racial discrimination …’ is potentially stronger than ‘may be taken’,Footnote ⁵¹ it is nonetheless an example of ‘partial borrowing’. Furthermore, the difference in wording may be semantic and the inclusion of affirmative action in the first instance in a Bill of Rights is the most important point. The explicit recognition of affirmative action avoids litigation on the question of whether such measures are consonant with the promise of equal protection of the law. For this reason, the Canadian Charter ‘considered’ the American approach to equality but did not ‘borrow’ from it. The absence of an affirmative action provision in the equal protection clause, which was introduced through the Fourteenth Amendment to the US Constitution,Footnote ⁵² has created confusion regarding the legality of whether affirmative action is consonant with the promise of equal protection of the law.Footnote ⁵³

Ignoring the American model, Canada sought to avoid such confusion by reflecting the global trend as the equality provision in the Charter explicitly allows for affirmative action.Footnote ⁵⁴ America's waning substantive influence may also be attributed to the different vision of equality Canadians and non-Canadians have compared to the American understanding. The former vision focuses on the need to eradicate subordinating treatment through treating people differently if needs be, while the latter concentrates on equal protection and treating people the same. Given the differences not only in the vision of equality but also the political and social structures in place, it makes sense that the Canadian Charter reflects the global human rights instruments more substantially than it does the American model. In such circumstances, it is therefore acceptable for drafters to ignore comparative law/experience if such a source does not provide assistance in helping to formulate a particular provision. Adopting such an approach helped Canada negate the risk of the importation and interpretation of a alien Bill of Rights to the Canadian context.

In the light of the legacies of inequality resulting from the Northern Ireland conflict, arguably, it also makes sense for a Northern Ireland Bill of Rights to reflect international standards and incorporate affirmative action. This is exactly what the NIHRC's advice to the Secretary of State does in recommending affirmative action as an integral part of the draft equality provision.Footnote ⁵⁵ Internationalising the issueFootnote ⁵⁶ and referring to other jurisdictions, most notably South Africa and Canada, helped change the affirmative action from a permissive to a directive clause. The South African influence in particular is evident with the frequent use of the term ‘unfair discrimination’.Footnote ⁵⁷ Cognisant of the need to address past inequalities, rather than including a simple prohibition of discrimination, the NIHRC opted for a ‘belt and braces approach’.Footnote ⁵⁸

Using the term ‘unfair discrimination’, as the South African experience shows,Footnote ⁵⁹ helps ensure that affirmative action is possible in contexts where a relatively privileged person experiences discrimination, but that discrimination will not be judged to be ‘unfair’ if it has the effect of advancing and protecting those who are in a less advantageous position. Not only did the strategies of internationalisation and constitutional borrowing strengthen the formulation of the draft equality clause, they helped prevent the debate from becoming an internally focused one which could have become stymied due to lack of agreement on this divisive topic.Footnote ⁶⁰ In short, the strategies acted as a mean of ‘persuasive authority’.

Affirmative action also came into conflict with the debate surrounding whether to include the right to self-identification in a Bill of Rights for Northern Ireland, and on this occasion, the use of international law/bodies could have potentially compounded the controversy. Before addressing this issue, for contextual purposes, it is important to provide some background information. The Agreement not only explicitly refers to international experience, but also states that the Bill of Rights should ‘reflect the principles of mutual respect for the identity and ethos of both communities’. From the outset of the Bill of Rights debate, this phrase has been problematic for the NIHRC. There has been a distinct lack of consensus, both within the NIHRC, and also as regards political parties and organisations, on the interpretation of this phrase. On the one hand, some have argued and continue to argue for an ‘individualistic/separationist’ interpretation of this phrase, whereby protection and entitlement to benefits (through a Bill of Rights) should be accorded, not on the basis of being a member of a group but through status as an individual.Footnote ⁶¹ On the other hand, some favour a ‘communal/group’ approach whereby some entitlements and responsibilities are given to groups rather than to individuals.Footnote ⁶² Individuals, under this approach, are treated as members of groups and benefits are conferred, not on the basis of individual identity, but in relation to group affiliation.Footnote ⁶³ In the Northern Ireland context, this has translated into a privileging of a discourse around two communities. The shorthand terms ‘Nationalist/Catholic/Irish’ and ‘Unionist/Protestant/British’ have thereby been fixated on to the detriment of other cross-cutting or more fluid identities.

The Agreement itself seems to tend towards incorporation of this latter approach in a number of respects. For example, the voting system in the Northern Ireland Assembly requires parties to designate themselves as ‘Nationalist’, ‘Unionist’ or ‘Other’. Another example is to be found in Northern Irish equality legislation which, although it preceded the Agreement, was underpinned by the Agreement, and requires registered employers and public authorities to monitor the religious composition of their workforce to ensure a fair balance between the ‘two communities’—Catholics and Protestants. However, the Agreement's emphasis on group identity and the ‘two communities’ has been criticised within and outside the NIHRC. One former human rights commissioner stated:

HarveyFootnote ⁶⁵ argues that Irish Nationalists and British Unionists really do exist and the institutional mechanisms and the equality measures established or underpinned by the Agreement are there because of the reality of the political situation in Northern Ireland.Footnote ⁶⁶ The author agrees with Harvey: as the conflict was primarily between two main political communities (Irish Nationalists and British Unionists) it was likely that any settlement would be directed towards building confidence and trust between the two main political communities and trying to avoid some of the legacies of the past. Furthermore, as the current Bill of Rights debate derives its legitimacy from the Agreement, those involved in the debate should, as the title of Harvey's article, suggests, ‘stick to the terms of the Agreement’.Footnote ⁶⁷ However, when the NIHRC first published its draft Bill of Rights in September 2001, in respect of identity rights, it did not ‘stick to the terms of the Agreement’ but opted for an individualistic approach. The majority of the NIHRC proposed that:

The NIHRC stated that these proposals drew heavily on the Framework Convention.Footnote ⁶⁹ However, controversially, the NIHRC substituted the word ‘minority’ in the Framework Convention for ‘community’. According to some within the NIHRC, the rationale for the substitution was that the term ‘two communities’ was too restrictive. Not everyone in Northern Ireland view themselves as being a member of one of the ‘two communities’. There are those who are neither Unionist nor Nationalist. Some may identify themselves as belonging, for example, to the Muslim or Chinese community.Footnote ⁷⁰ Secondly as ‘minority’ is not defined in the Framework Convention, the replacement with ‘community’ was supposed to avoid constant battles as to who is the minority in a given context.Footnote ⁷¹ The NIHRC stated that this decision was taken in the ‘light of advice from experts in the field, most notably the legal adviser of the High Commissioner on National Minorities (‘HCNM’) at the Organisation for Security and Cooperation in Europe (‘OSCE’) …’.Footnote ⁷²

On first reading, the NIHRC's stance seems defensible. Firstly, the decision to use the word ‘community’ instead of ‘minority’ is an example of ‘partial borrowing’ mentioned earlier—using international law but ensuring it fits the local context and enhances rights protection at the local level. Secondly, it is advisable to seek further guidance from international experts on controversial issues if it helps reach a solution and avoid ongoing conflicts in the process. However, on further examination of the NIHRC's approach, it becomes less defensible. Instead of enhancing rights protection of the most vulnerable and supplementing existing legislation (which is the purpose of any Bills of Rights), the NIHRC's approach could have resulted in lowering existing human rights and equality standards for those deemed outside the ‘two communities’, a concern which was expressed by several organisations. For example, the organisation representing ethnic minorities in Northern Ireland, (Council for Ethnic Minorities, NICEM) ‘strongly disagreed’Footnote ⁷³ with both the NIHRC's decision and rationale for replacing ‘minority’ with ‘community’ as the cultural concerns of ethnic groups could thereby be undervalued and the disadvantaged position of minority groups could become marginalised or even worse, ignored. The Director of NICEM, Patrick Yu, resigned from the NIHRC on this issue. In his resignation letter, Patrick Yu stated that there was an ‘apparent fixation of a small number of Commission members to pursue identity issues in a way that undermines existing equality protections which threatens aspects of the Agreement’.Footnote ⁷⁴

Despite the NIHRC's reassurance that the wording of the draft provision would not undermine existing equality legislation,Footnote ⁷⁵ the Equality Commission for Northern Ireland (‘ECNI’) stated that ‘it is difficult to believe that it would not be used to challenge current monitoring provisions or requirements as to representativeness in public bodies’.Footnote ⁷⁶ As McCrudden states:

Some, especially those from the individualistic school of thought, may argue that the accusation of irresponsibility seems harsh. As stated above, the NIHRC's decision was taken only after it sought guidance from the OSCE. However, procedurally, even the NIHRC's decision to consult with the OSCE rather than the body responsible for the Framework Convention, the Council of Europe, is controversial and flags up one of the dangers of relying on external sources, namely ‘forum shopping’.Footnote ⁷⁸ Although the term ‘forum shopping’ was not explicitly used in Yu's resignation letter, it is evident that this is what Yu was referring to when stating that:

Criticisms of forum shopping were not confined within the NIHRC. McCrudden also criticises the NIHRC's ‘flawed process’Footnote ⁸⁰ in asking the OSCE to play a role, a role which was arguably inappropriate-asking an international body to give advice on what is a sensitive political issue without knowing the local context. The validity of this point was acknowledged by the OSCE when the NIHRC sought their advice at a later stage in the process:

McCrudden states, that in asking the OSCE to play such a role, the NIHRC placed the OSCE in a ‘paradoxical situation’—instead of preventing or limiting tensions, the OSCE could have contributed to or exacerbated them.Footnote ⁸² Although the NIHRC has argued that seeking advice from the OSCE was ‘in furtherance of [their] strategy to involve the international experts’Footnote ⁸³ and was within the Agreement's mandate, (which the author accepts) arguably, the NIHRC should have been less selective and more willing to seek advice from a variety of international sources/bodies, especially those with the authority and jurisdiction over a particular treaty.

As a possible result of this criticism, the NIHRC eventually sought advice from the Council of Europe. The Ad Hoc Group was unequivocal in its recommendation against the inclusion of the right to self-identification:

Furthermore, the Ad Hoc Group noted a similar concern of the compatibility (or lack thereof) between equality legislation and the right to self-identification and recommended that this ‘is not a matter that should be definitely solved in a Bill of Rights, but rather be addressed in ordinary legislation’.Footnote ⁸⁵ They pointed out the potential clash between the right of self-identification on the one hand and affirmative action measures to ensure equality on the other hand. They concluded that this issue ‘could be better and more fully discussed or advanced … in the context of discussions concerning the reform of the equality legislation and proposals to have a single equality act’.Footnote ⁸⁶ The NIHRC also sought advice again from the OSCE which adopted a very cautious approach and, as McCrudden notes, was unwilling to give an opinion on the implications of its views for Northern Ireland specifically.Footnote ⁸⁷

Notwithstanding the cautious approach adopted by both the Ad Hoc Group and the OSCE, McCrudden concludes that there is ‘little room for doubt as to what approach it considered the NIHRC should now adopt on the issues, viz that the Bill of Rights was not the appropriate place to consider the issues of self-identification’.Footnote ⁸⁸ However, the NIHRC chose to ignore this advice and published a second draft Bill of Rights in 2004 which, apart from a few changes, was very similar to its 2001 draft. In the 2004 draft provisions, regarding the controversial substitution, the NIHRC amended the clause to read that ‘everyone belonging to a national, ethnic, religious, linguistic or cultural minority or community in Northern Ireland shall have the right individually and in common with other members of that community, to enjoy his or her own culture, to profess and practise his or her own religion and to use his or her own language’.Footnote ⁸⁹ The other important change was the omission of any reference to a person's right not to be treated as a member of a minority. However, this is only because the NIHRC proposed to incorporate the Framework Convention into domestic law and thus there was considered no need to include it in a Bill of Rights.

When the NIHRC submitted its final advice to the Secretary of State on 10 December 2008,Footnote ⁹⁰ it played it ‘fairly safe’Footnote ⁹¹ with the controversial issues above that had dogged the process to that point.Footnote ⁹² There is no general right to self-identification in the final draft Bill, and the term ‘minority’ was ultimately preferred to the term ‘community’. Two further notable differences from the previous two drafts are: (1) less emphasis has been placed on the Framework Convention, which is mentioned only once in the culture and identity rights section alongside other international and comparative law instruments;Footnote ⁹³ and (2) the ‘pendulum’Footnote ⁹⁴ has swung back to the group/communal approach congruent with the spirit and the letter of the Agreement. Possible explanations for the NIHRC's change in direction are a recognition by the NIHRC that it was ‘irresponsible’ to include provisions that could potentially undermine existing equality legislation; a change in the composition of the NIHRC;Footnote ⁹⁵ possibly, the findings of the Bill of Rights Forum's report;Footnote ⁹⁶ a possible response to the criticism of forum shopping; and a responsive approach both to international advice and to all those who voiced concern, including both the British and Irish governments. Whatever the motivation(s) behind the eventual changes, the above scenario aptly illustrates the dangers of using international texts and/or bodies without placing them in the local context. Not only does this place the international bodies in a difficult position, but also runs the risk of dividing the local populace and possibly atrophy the Bill of Rights, undermining its capacity to catalyse progressive change.

Deciding to list grounds prohibiting discrimination is an illustrative example of the benefits of combining both the ‘local and the global’.Footnote ⁹⁷ Providing a list of grounds arguably strengthens an equality provision as it ensures that those groups who are, disadvantaged, or who may in the future be subject to disadvantage, benefit from protection, and possibly excludes those groups who are in a more advantageous position from added protection afforded by a Bill of Rights. Unsurprisingly, all three jurisdictions have included a list of grounds in their non-discrimination clause/recommendation where both the local and international influence is pervasive. Consider South Africa for example. Initially, an earlier draft chose not to list any grounds on the basis that ‘specific references to particular grounds for non-discrimination may have a restrictive rather than extensive effect on the prohibition of discrimination’.Footnote ⁹⁸ However, given that gender alongside racial discrimination were at the core of discriminatory behaviour, ‘there was no way’Footnote ⁹⁹ that parties at the negotiating process were going to accept a non-discrimination clause without explicit reference to gender and racial discrimination. Following the international approach of article 26 of the ICCPR, section 9(3) contains a list of proscribed grounds similar to those in article 26. Section 9(3) therefore includes grounds such as race, sex, language, colour, religion, social origin and birth. However, South Africa's grounds are more extensive than the ICCPR as they include sexual orientation, conscience, belief, culture, pregnancy, marital status, and gender. Their inclusion in the South African Bill of Rights is understandable in view of its particular history and situation. The inclusion of sexual orientation was not uncontroversial, and was influenced partly by the personal involvement of a judge, Edwin Cameron (who is openly gay) and by numerous submissions from South African civil society organisations. In adding sexual orientation to the list of proscribed grounds, the South Africa document became the first national Bill of Rights in the world to assure equality on this basis.Footnote ¹⁰⁰ The addition of marital status and pregnancy as prohibited grounds of discrimination further enhance gender equality. Conversely, there are certain grounds that South Africa did not explicitly include but which appear in article 26 such as political, or other opinion, national origin and property. Arguably, the drafters considered that these grounds did not represent those groups who warranted protection and were cognisant not to include groups already in a more advantageous position. This may explain the exclusion of property as a ground as it would be more likely to be used by the rich than the poor. Furthermore, in the light of the inequalities experienced by people on a number of grounds, South Africa opted for an intersectionality approach to equality.Footnote ¹⁰¹ This approach is an acknowledgment of the fact that everyone has multiple identities—people are not defined by a specific facet of identity such as race, sexuality or class, but rather the self is both ‘constituted and fragmented’ by the intersections of various categories of identity.Footnote ¹⁰² In other words, a person has a sex and a race and a religion and other identities. This has proved beneficial for equality claimants in South Africa as they do not have to ‘fit’ into one of the listed categories.Footnote ¹⁰³ While there are differences between the ICCPR and the South African Bill of Rights, there is also another commonality. Both equality provisions adopt an open-ended approach to equality. Adopting a flexible rather than a fixed approach strengthens the equality right as it broadens the grounds prohibiting discrimination to include non-enumerated grounds.Footnote ¹⁰⁴

In this context, it is concerning to note that the then British government in its responseFootnote ¹⁰⁵ to the NIRHC's advice questioned the NIHRC's recommendation to adopt an open-ended approach to equality with the inclusion of the phrase ‘other status’. It also queried the NIHRC's recommendation to expand the list of protected groups, suggesting that this would lead to a loss of ‘focus’ and weaken the existing level of protection against discrimination.Footnote ¹⁰⁶ The author acknowledges that the list of grounds is more extensive than South Africa and in particular Canada,Footnote ¹⁰⁷ and has some concerns about certain grounds such as the inclusion of ‘property’. As was noted, the inclusion of such a ground could potentially be used to the advantage of rich people than poor people. McIntyre recommends that ‘property’ should be replaced with ‘receipt of social assistance’.Footnote ¹⁰⁸ At least this way, it might mean the ‘privileged’ would not be able to use this particular ground to bring such claims under the Bill of Rights. The NIHRC's inclusion of ‘economic status’ alongside ‘property’ may help negate the improper utilisation of the Bill by rich and privileged people. That said, the author is not persuaded by the NIO's line of argumentation. Firstly, the NIHRC's recommendations are congruent with the language and evolving jurisprudence of both international and comparative law. Not only has such an approach broadened the scope of the equality right in Canada and South Africa, but contrary to the NIO's claim that the existing levels of protection against discrimination might be ‘significantly diluted’,Footnote ¹⁰⁹ has resulted in the enhancement of human rights and equality protection for both rich and poor.Footnote ¹¹⁰

Furthermore, the NIO's argument evidenced both a misrepresentation and a misunderstanding of the purpose of a Bill of Rights. Anti-discrimination legislation and Bills of Rights should not be viewed as alternatives whereby people look to the Bill of Rights rather than anti-discrimination legislation. As Livingstone stated, both complement and supplement each other.Footnote ¹¹¹ It paves the way for complex regulations which can be changed relatively quickly and frequently as society develops and needs change, something which the entrenched nature of a Bill of Rights could not easily facilitate within the document itself. The South African experience is an illustrative example as their Bill of Rights has set the framework for further detailed anti-discrimination legislation, detail which is simply beyond the scope of a Bill of Rights.Footnote ¹¹² Furthermore, a Bill of Rights is different from ordinary legislation in that it is meant to have a long life. The inclusion of ‘other status’ accommodates this dynamic by allowing the Bill to evolve in line with society's developing recognition of different issues (such as the law of marriage, family, sexual orientation and so on). It would be undesirable and impracticable for a Bill of Rights to have fixed grounds which are not open to expansion and capable of keeping pace with ordinary statutes. Finally, the inclusion of additional grounds such as ‘nationality’, Irish Traveller Community, family or carer status’ represent some of the most vulnerable groups within Northern Ireland. The extensive list is simply an example of how national law supplements international protections and taking into consideration the local context, helps formulate a sui generis equality right.Footnote ¹¹³

Another misunderstanding and mischaracterisation was the NIO's reference to the NIHRC's equality proposals as ‘unlimited’.Footnote ¹¹⁴ The NIHRC has described this as a ‘completely unjustified conclusion’Footnote ¹¹⁵ as the NIHRC's recommendations (including on equality) are subject to a general limitation clause.Footnote ¹¹⁶ The NIHRC's stance is justified as adopting a general limitation clause, instead of an internal test specific to equality, is again in line with international and comparative law. Both South Africa and Canada have a general limitation clause. To place an internal limitation clause within the equality provision would separate the equality rights from other rights and place an unnecessary extra burden on the equality claimant.Footnote ¹¹⁷ Subjecting the equality provision to a general limitation clause places the onus on government to establish a limit to that right on grounds demonstrably justified. From the NIO's response, it is not clear whether the NIO's incorrect labelling of the equality provision as ‘unlimited’ was deliberate. Was it the NIO's intention to subject the equality clause to an internal instead of a general limitation clause? Or was it a mere oversight as the NIO acknowledged and surprisingly, agreed in principle with the NIHRC's advice on a general limitation clause? Footnote ¹¹⁸ What is clear is that in stark contrast to the approach taken by the NIHRC, the former government neither referred to the local and/or the international context. Rather than developing a Bill of Rights for a local and very specific post-conflict situation (as mandated by the Agreement and, itself, a dominant issue in considering precisely what Northern Ireland needed from a Bill of Rights),Footnote ¹¹⁹ the government sought to append it to a national discussion on a possible UK Bill of Rights.Footnote ¹²⁰ Such an approach not only ignores the fact that both discussions emerged from different backgrounds,Footnote ¹²¹ but it also flies in the face of the British government's international obligation under the Agreement to have a Bill of Rights reflecting ‘the particular circumstances of Northern Ireland’.Footnote ¹²² Another distinguishing feature between the NIHRC's recommendations and the NIO's response is the lack of reference to international standards. In the NIO's 116 page document, international law is referred to, in passing, only on two occasions and even then both are improperly referenced.Footnote ¹²³ In contrast, when submitting its final advice, the NIHRC took pains to cite international standards and explain how and why it had considered the standards relevant. Indeed, reference to international law was a key aspect of the NIHRC's mandate and methodology in submitting its final advice.Footnote ¹²⁴ The influential role international law played is aptly illustrated in the interpretative obligation requiring courts, tribunals and other persons to ‘pay due regard to other international human rights law’ and a permissive clause stating that they ‘may consider the relevant judgments of foreign and international courts and tribunals’.Footnote ¹²⁵ This reflects a similar provision (section 39) of the South African Bill of Rights. The inclusion of the directive provision to consider international law as opposed to the permissive provision ‘may consider’, indicates both Northern Ireland's and South Africa's willingness to embrace the international community. In so doing, the Bill of Rights could be viewed as a ‘passport to international acceptability’.Footnote ¹²⁶ That said, the drafters were also cognisant of the dangers of jettisoning the past and relying solely on international and comparative law. Concomitantly, instead of producing a foreign equality provision, the NIHRC drew on both international and local sources resulting in a comprehensive substantive equality recommendation which, if implemented, could result in the enhancement of human rights and equality protection in Northern Ireland.

Disappointingly, in contrast, the then NIO's response to both the equality clause and the other recommendationsFootnote ¹²⁷ was reductive, regressive and arguably would undermine human rights protection.Footnote ¹²⁸ This was due primarily, though not exclusively, to the NIO's lack of deference to the ‘local and the global’. Whether the change in government makes a difference is hard to predict. What is not hard to foresee is that if the current government adopts the former government's stance, it will be not one step forward but two steps back for rights protection in Northern Ireland,Footnote ¹²⁹ at a time when that rights protection needs to be cemented into the heart of the ongoing peace process.