APPENDIX 15
Supplementary Memorandum submitted by the Northern
Ireland Human Rights Commission
1. INTRODUCTION
1.1. The Context
People in Northern Ireland, like people all
over the world, hold parades, festivals, demonstrations, commemorations,
carnivals and protests that reflect their communities, their identity,
their politics, their culture, their traditions, their sense of
fun, their communal memory, their creativity, their sense of place
and their beliefs. Clearly, therefore, there is a substantial
overlap between public assembly and public expression. Furthermore,
both freedom of assembly and freedom of expression have been recognised
as fundamental human rights. However, public events inevitably
impinge upon the life of others. In Northern Ireland, and around
the world, these public events take place within the context of
rights held by those not taking part. This is most evident when
the public expression of belief and identity occurs where there
are sharp political differences, differences that are played out
in historical and contemporary animosity and violence. In such
cases the right to freedom of assembly must be balanced against
other rights, and the need to maintain public order.
The politics of difference, territory and legitimacy
in Ireland has left a history of violent confrontation over public
events. This has been particularly true of the north. Since the
middle of the eighteenth century local "fleets", Volunteers,
Masons, Defenders, Peep O'Day Boys, the Orange Order, the United
Irishmen, the yeomanry and militia, Ribbonmen, O'Connolites, marching
bands and drumming parties of all sorts, open-air preachers, the
Tenant Right movement, the Blackmen, the Apprentice Boys, the
Ancient Order of Hibernians, the Forresters, the Independent Orange
Order, the Ulster Volunteer Force, the Gaelic Athletic Association,
Republicans, the Unemployed Workers Committee, the Civil Rights
Movement, the Ulster Defence Association, and the Ulster Workers
Council, to mention just a selection, have held public events
that have ended in violence. The state has enacted a variety of
repressive legal measures including banning all parades from 1832
to 1845 and 1850 to 1872 and Public Order Acts (or Orders), the
more significant of which were in 1951, 1971 and 1987. And magistrates
and police have used both discretion and extreme violence in controlling
or stopping events. In periods of unrest connected to such events
hundreds, perhaps thousands have died, thousands, maybe hundreds
of thousands have been made homeless and the cost must run into
hundreds of millions of pounds. How many of the organisations
mentioned above either carry "symbolic" weapons or pictures
of weapons or battles or wear uniforms or play music remembering
battles or fallen heroes?
For democracy to work people must be allowed
to express their politics even if others do not agree with those
politics. The right to free public political, cultural and religious
expression must be at the heart of politics in Northern Ireland.
Yet, an event that is central to one person's cultural or religious
identity is often seen by another as a threat. How can Northern
Ireland develop an environment in which freedom of assembly and
expression can take place in a peaceful atmosphere?
This document does not presume to answer that
question outright. Rather, it reflects upon the possible contribution
to be made by human rights law. It aims to explain why understanding
human rights is important for Northern Ireland, and in particular,
examines the interpretation of international human rights standards,
and the attendant responsibilities of the state, in relation to:
freedom of assembly and expression;
affected individuals and communities;
and
the policing of public events.
It is appropriate to begin with a brief guide
to international human rights standardshow they have developed,
what forms they take, and what obligations they give rise to.
1.2 International Human RightsA brief
guide
Human rights are an entitlement derived from
the inherent dignity and worth of all human beings. They are universal,
although, of course, many countries have provided for the protection
of particular human rights within their own constitution or bill
of rights. In 1948, following the atrocities of the Second World
War, the United Nations' Universal Declaration of Human Rights
became the first widely held standard on human rights. Since then,
a number of international and regional "treaties" ("conventions"
and "covenants") and "declarations" have been
produced. These are sometimes described using the umbrella term,
"instruments". For the most part, these have been arrived
at under the aegis of the United Nations or the Council of Europe.
The Council of Europe should not be confused
with the institutions of the European Unionit is both older
and larger than the latter, and entirely separate. Any references
to the "European Court" in this document are, therefore,
to the European Court of Human Rights and not the European Court
of Justice. Furthermore, the dual machinery of the European Commission
on Human Rights and the European Court on Human Rights was replaced
by a single Court in November 1998.
The 1948 UN Declaration was followed in 1966
by two international Covenants:
the UN International Covenant on
Civil and Political Rights; and
the UN International Covenant on
Economic, Social and Cultural Rights.
The rights enshrined in the International Covenant
on Civil and Political Rights (ICCPR) are sometimes known as first
generation rights whilst those in the International Covenant on
Economic, Social and Cultural Rights (ICESCR) are there to promote
social justice and are described as second generation rights.
There are also third generation rights called "collective
rights" which are conferred upon individuals as members of
communities or ethnic groups. Examples include:
the UN Declaration on the Rights
of Persons belonging to National or Ethnic Religious and Linguistic
Minorities (1992); and
the European Framework Convention
for the Protection of National Minorities (1995).
In addition, a range of more specific instruments
have been developed including:
the UN Convention on the Elimination
of All forms of Racial Discrimination (1966);
the UN Convention on the Elimination
of Discrimination Against Women (1979);
the European Convention on the Compensation
of Victims of Violent Crime (1983);
the European Convention for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (1987);
and
the UN Convention on the Rights of
the Child (1989).
There are also international standards which
deal exclusively with law enforcement, and these are particularly
relevant to our purposes here:
the United Nations Code of Conduct
for Law Enforcement Officers (1979);
the Council of Europe Declaration
on the Police (1979); and
the Basic Principles on the Use of
Force and Firearms by Law Enforcement Officials (1990).
The three most important regional instruments
are:
the European Convention on Human
Rights (1950);
the American Convention on Human
Rights (1969); and
the African Charter on Human and
Peoples' Rights and Duties (1981).
All of these instruments have one thing in common:
they confer rights upon individuals (or minority groups in the
case of third generation rights). The next question to address
is how those rights are enforced.
1.2.1 The role of the state
It is the government of the country in which
a violation of rights is alleged to have taken place which will
be held accountable by the appropriate international tribunal,
commission, court or committee. This can be clearly seen from
the case names listed in the appendix. The appropriate court will
be the one which oversees the operation of the instrument in questionfor
example, the UN Human Rights Committee will hear cases involving
an alleged breach of the International Covenant on Civil and Political
Rights, whereas the European Court on Human Rights will deal with
cases concerning alleged violations of the European Convention.
What then are the duties of the state in regard
to the array of international instruments named above? Three points
should be made. First of all, normally the international court
will grant a certain amount of leeway to domestic authorities
when determining whether or not a government has failed to live
up to its obligations. This leeway is known as the "margin
of appreciation" (see further 2.3.3). Secondly, it is important
to distinguish between declarations, which are not intended to
be legally binding (exhortations rather than obligations), and
treaties (ie conventions and covenants) which do impose legal
obligations on the parties to them. This means, for example, that
although the UN Universal Declaration of Human Rights paved the
way for many subsequent conventions and covenants, it of itself
contains no legal undertakings, and merely urges governments to
promote its standards. States voted for it by resolution, but
no country has signed or ratified it. And this leads to the third
pointthat the level of a state's obligations will depend
on the manner in which it agrees to any treaty. Essentially, there
are three possibilities(a) signature, (b) ratification
or accession and (c) incorporation.
(a) Signature
Signing an instrument, while not a legally binding
step, creates an obligation of good faith that a state signatory
will refrain from any action calculated to defeat or undermine
the goals of the instrument. Signature is often followed by ratification
at a later date, but this is not necessarily so.
(b) Ratification/Accession
Ratification by a government means that any
individual, non-governmental organisation or group of individuals
within its jurisdiction can petition the appropriate international
court alleging a violation of a right (or rights) contained in
that instrument. Accession is virtually the same as ratification,
except that it is not preceded by any act of signature. The ICCPR,
for example, was ratified by the UK in 1976, and both the British
and Irish governments have recently ratified the European Framework
Convention for the Protection of National Minorities.
Once an instrument has been ratified by a member
state, that state is bound by its terms even though it is not
incorporated into domestic law. Domestic statutes ought to comply
with the instrument, and local courts may look to that instrument
for guidance when construing any ambiguity in domestic law.[122]
That said, when ratifying a treaty, a contracting
state may make a reservation in respect of any of its provisions
if municipal laws in force at that time do not conform. The state,
therefore, only accepts the obligation imposed by the treaty to
a limited degree. In addition, in times of public emergency, a
state may make a derogation from the terms of a treaty. This means
that the State may take measures which would otherwise be in breach
of the treaty so long as such measures are not inconsistent with
the state's other obligations under international law. Any such
derogation is susceptible to legal challenge, and some rights
are regarded as non-derogable (see 1.2.2 below).
(c) Incorporation
The crucial distinction between ratification
and incorporation is that ratification does not give rise to directly
enforceable rights in local courts, whereas incorporation does.
In general terms, unincorporated treaties have no legislative
effect and do not form part of the law of the country. Incorporation,
on the other hand, renders an instrument part of domestic law.
The ECHR has now been incorporated into UK law by the Human Rights
Act 1998 and this is discussed further in 1.3 below.
1.2.2 A Hierarchy of Rights
Some human rights are seen as "absolute"
or "non-derogable". These include freedom from inhuman
and degrading treatment and punishment, and a state cannot opt
out of an absolute right. Other rights are "derogable",
and these can be sub-divided into two further categories"limited"
rights and "qualified" rights. Limited rights are those
in relation to which the government can enter a derogation but
which are not to be balanced with any general public interest.
An example is the right to a fair trial. Many other rights, however,
fall into the "qualified" category. These rights must
be balanced with the general public interest given that their
exercise and enjoyment will often bring them into conflict with
other rights. Obvious examples, with particular relevance to the
subject of this study, are the rights to freedom of expression,
freedom of assembly, and respect for private and family life.
The qualifying paragraphs in the Convention (for example Article
11(2)) therefore allow restrictions to be placed on these rights
in pursuit of certain legitimate aims which include the interests
of national security or public safety, the protection of health
or morals, and the protection of the rights and freedoms of others.
Restrictions must also be non-discriminatory, prescribed by law,
and necessary in a democratic society (see further 2.3).
1.3 THE HUMAN
RIGHTS ACT
1998
In 1998, the British Parliament enacted the
Human Rights Act which came into force on 2 October 2000. This
legislation incorporates the European Convention on Human Rights
(ECHR) into UK law, and enables, for the first time, victims of
human rights abuses to obtain remedies in local (domestic) courts
rather than having to go to the European Court in Strasbourg.
Domestic courts will be required to interpret legislation so as
to uphold the Convention rights. The only qualification to this
is where the High Court or Court of Appeal decides that the legislation
itself (or a part of it) is incompatible with the Convention.
In such instances, the court can make a "declaration of incompatibility"
but this does not affect the validity or continued operation and
enforcement of the legislation.
The Act also imposes a duty on all public authorities
(such as the Parades Commission) to act in a way which is compatible
with the Convention. Thus, not only can individuals now rely on
the ECHR as a defence in criminal or civil cases, but they may
also rely on the Convention when applying for judicial review.
The Human Rights Act effectively creates a new free standing ground
for review in addition to the three traditional grounds of illegality,
irrationality and procedural irregularity. This new ground is
whether or not a public body's decision is compatible with the
Convention. Already, an application for judicial review of a decision
of the Parades Commission has argued (albeit unsuccessfully) that
the Commission overstepped the legitimate aims listed in Article
11(2) of the Convention (see 2.3.7.2 (i)).[123]
This fourth ground will invariably extend the
scope of the other three. In so far as illegality is concerned,
a court might now be able to declare a decision of a public body
to be illegal if it fails to comply with the Convention. In relation
to irrationality, an applicant may no longer need to satisfy the
court that a disputed decision was so irrational that no rational
authority could have taken it (a legal standard known as Wednesbury
unreasonableness). Instead, the question may become whether or
not a restriction placed upon a Convention right was proportionate
(see further 2.3.6) And in so far as procedural irregularity is
concerned, the accepted rules of natural justice are now likely
to be supplemented by the requirement that the procedures adopted
by a public body must not compromise the individual's Convention
rights (see, for example, 2.4 concerning the right to a fair hearing).
Furthermore, for applicants relying on this fourth ground, the
long established rule that individuals applying for judicial review
must demonstrate a sufficient interest in relation to the unlawful
act, will only be satisfied if he or she is, or would be, a victim
of the act as defined by s7(7) of the Act.
1.4 HUMAN RIGHTS
IN NORTHERN
IRELAND
The Belfast (Good Friday) Agreement:
The participants endorse the commitment made
by the British and Irish Government that . . . they will:
. . . affirm that whatever choice is freely
exercised by a majority of the people of Northern Ireland, the
power of the sovereign government with jurisdiction there shall
be exercised with rigorous impartiality on behalf of all the people
in the diversity of their identities and traditions and shall
be founded on the principles of full respect for, and equality
of, civil, political, social, and cultural rights, of freedom
from discrimination for all citizens, and of parity of esteem
and of just and equal treatment for the identity, ethos, and aspirations
of both communities. (p 2)
The Parties affirm their commitment to the mutual
respect, the civil rights and the religious liberty of everyone
in the community. Against the background of the recent history
of communal conflict, the parties affirm in particular:
the right of free political thought;
the right to freedom of expression
or religion;
the right to pursue democratically
national and political aspirations:
the right to seek constitutional
change by peaceful and legitimate means;
the right to freely choose one's
place of residence;
the right to equal opportunity in
all social and economic activity, regardless of class, creed,
disability, gender or ethnicity;
the right to freedom from sectarian
harassment; and
the right of women to full and equal
political participation. (p 16)
Increased activity in the field of human rights,
however, has not been confined to the international, or even national,
arena. A key part of the future development of Northern Ireland
will be the greater recourse to human rights legislation. The
Belfast (Good Friday) Agreement was explicit about this. Whether
one was a supporter of the Belfast (Good Friday) Agreement or
not, few would disagree with the sentiments expressed on human
rights. Both British and Irish governments are committed to the
maintenance of human rights within their jurisdiction. Indeed,
the Northern Ireland Human Rights Commission itself was a product
of the Belfast (Good Friday) Agreement. Under section 69 of the
Northern Ireland Act 1998, the Commission is required to:
keep under review the adequacy and
effectiveness in Northern Ireland of laws and practice relating
to the protection of human rights;
advise the Secretary of State and
the Executive Committee of the Assembly of legislative and other
measures which ought to be taken to protect human rights;
advise the Assembly whether a Bill
is compatible with human rights;
promote understanding and awareness
of the importance of human rights in Northern Ireland.
So how will this international, national and
regional enthusiasm for human rights influence disputes over parades
and marches? Certainly, human rights standards have the potential
to set a benchmark against which the regulation of parades and
related protests can be measured (including the premium properly
attached to reaching local agreement). By establishing such principles,
these standards may act as a catalyst in transforming the climate
in which the public expression of one's culture, politics and/or
religion takes place.
The remainder of this document looks at how
some of these international instruments have been interpreted,
and elicits the significance of those interpretations for disputes
around parades. It concentrates primarily upon the European Convention
on Human Rights and also, to a lesser degree, on the International
Covenant on Civil and Political Rights. The reason for this bias
is twofold. Firstly, it is only the European Convention which
has been incorporated into UK law, and thus it is the instrument
which will receive the greatest attention in local courts. While
other instruments do include provisions relating to the right
to freedom of assembly, and thus augment the Convention and Covenant
jurisprudence, their utility is of a comparative nature rather
than directly bearing on the legal protection of rights in Northern
Ireland. Secondly, the volume of case law generated by the Convention
is much greater than that generated by any other international
human rights treaty. It therefore stands to offer the most comprehensive
guidance.
This work does not purport to be an exhaustive
inventory of international human rights provisions as they relate
to issues around parades. Notwithstanding, other treaties will
be cited where they illuminate discussion of the key issues, for
a secondary objective of this work is to highlight the different
ways in which rights have been both framed and interpreted. In
the context of the Human Rights Commission's consultation on a
Bill of Rights for Northern Ireland, this work should therefore
further encourage reflection on what rights might be included
in such a Bill.
122 See, for example, Attorney-General v Guardian
Newspapers Ltd (No 2) [1990] 1 AC 109 at 283G Per Goff LJ,
and Derbyshire County Council v Times Newspapers Ltd [1992]
QB 770, at 830B-C per Butler-Sloss LJ. Back
123
In the matter of an Application by David Alexander Tweed for
Leave to Apply for Judicial Review. Heard by Kerr J in the
High Court on 25 October 2000, and by the Court of Appeal on 26
October 2000. Written judgement delivered by Carswell LCJ. Back
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