Justice and Security (Northern Ireland) Bill
Committee Stage briefing from the
Northern Ireland Human Rights Commission:
1. The Commission welcomes clause 13, which would exempt it from the 'victim requirement' for proceedings under the Human Rights Act 1998. It also welcomes clause 18 which would require the Commission to make recommendations in relation to any new powers. Clauses 16 and 17 impose certain requirements in relation to investigations and, while these will place an extra burden on the Commission, they are not unreasonable. The rest of the present briefing sets out the Commission's concerns in relation to clauses 14 and 15 (investigations) and clause 19 (timing of new powers).
2. The Commission believes that the Bill has serious defects in terms of the protection of human rights. In some respects the Bill actually diminishes the Commission's current level of independence, and imposes new and onerous obligations.
3. The relevant clauses have been presented by Government as a positive response to some of the recommendations made by the Commission on several occasions since its original submission of March 2001, required by the Northern Ireland Act 1998. In particular, the Commission has consistently sought the power to compel evidence, and the power to enter places of detention. The Secretary of State, Rt Hon. Peter Hain MP, stated in the Second Reading debate that "the Commission has welcomed the additional powers that [the Bill] provides. It has asked for them and I am providing them, so of course it is pleased."
4. To the extent that the Government's purpose was, as indicated by the Secretary of State, to furnish the Commission with the powers that the Commission felt necessary, the Commission is encouraged to hope that its reasoned objections to clauses 14, 15 and 20 will be taken very seriously.
5. The Bill as drafted offers access and evidential powers in a very limited form, hedging them with exclusions, limitations and procedural obligations, and adding little value in terms of the protection of human rights.
6. There are three key issues for the Commission arising from the Bill:
· restrictions on the use of evidential powers, including 'national security' exclusions;
· fettering of access to places of detention;
· the time limit on using new powers.
Restrictions and exclusions
7. Clause 14 provides for the power to compel evidence, in new s.69A(1) of the Northern Ireland Act 1998. New s.69A(4) obliges the Commission to consider whether, and conclude that, the matter that it proposes to investigate has not been investigated sufficiently by another person; clause 15 makes similar provision in relation to places of detention (at new s.69C(5)). There is scope for someone seeking to obstruct an investigation, or block access, on the basis of an inspection having been conducted by a regulatory body some time previously.
8. The Commission avoids duplication of work with other oversight and regulatory bodies through Memoranda of Understanding and other protocols. The Commission bases its work on the international human rights standards and therefore brings a new perspective to situations, matters and institutions already investigated by bodies with a different focus. The activities of other oversight bodies should not create a ground to object to an investigation by the Commission. Here, and in any other instance where the Commission ventures to suggest wording for amendments, it does so with respect and in order to assist Parliamentary discussion; it would be content with any other wording that secured the purpose.
Clause 14, page 11, leave out lines 18 to 21.
Clause 14, page 11, line 26, leave out 'subsection (4) or'.
Clause 15, page 14, leave out lines 4 to 9.
Clause 15, page 14, line 30, leave out 'subsection (4) or'.
9. The Commission is amenable to judicial review, and has no desire to except itself from the legitimate scrutiny of the courts. However it is not apparent that the specific roles that the Bill would give the county court, in proposed new sections 69A and 69C of the Northern Ireland Act 1998, add to the protection of human rights. Notices should not require to be ratified, or be able to be overturned, at county court level. In particular, the ability of a county court to cancel an order (s.69A(5)), to prevent or restrict access, or to interfere with the terms of reference of an investigation (s.69C(6)) limits the independence of the Commission.
10. The UN Paris Principles (the "Principles relating to the status and functioning of national institutions for protection and promotion of human rights") refer to the capacity of an institution to "freely consider any questions falling within its competence" and to "hear any person and obtain any information and any documents necessary for assessing situations falling within its competence". The ability of a statutory human rights institution to take action, within the functions entrusted to it by Parliament, should be respected, subject to the responsible use of its powers as determined against the ordinary threshold for judicial review.
11. If subsections 5 to 8 inclusive of proposed new s.69C were entirely left out, the Human Rights Commission would of course still be open to judicial review in the High Court, which is the appropriate mechanism for so serious an issue as adjudicating any dispute over (for example) the rationality and lawfulness of an investigation by an independent human rights agency. In the alternative, consideration might be given to substituting references to the county court with the High Court. In either case, the Commission would not wish to encourage any suggestion that this jurisdictional issue is at all a matter of the Commission's prestige; rather it is a matter of finding the best means of ensuring the protection of the human rights of persons in the care and custody of the state.
12. Clause 14 also severely limits the capacity of the Commission to investigate anything connected with national security. The proposed s.69B takes no real account of the particular circumstances of Northern Ireland, as a society emerging from a prolonged conflict in which human rights issues frequently arose in relation to the activities of the intelligence services, and those of the police in relation to national security matters.
13. For example, alleged collusion between state agencies and illegal armed groups is the sort of issue that a national human rights institution ought to be able to address. The Bill's s.69B(1) could in practice forbid any disclosure to the Commission of information that could be relevant to that matter, whether relating to past, present or future activity.
14. There is at present no restriction in the Northern Ireland Act 1998 on the ability of the Commission to investigate national security issues, so s.69B(5) has the effect of reducing, rather than enhancing, the Commission's powers. The exclusion of intelligence matters is not limited to the applicability of the proposed new powers. Any investigation by the Commission, whether or not it seeks to compel evidence, is prohibited from considering any matter concerning human rights in relation to the Security Service, the Secret Intelligence Service and GCHQ.
15. The Commission completely accepts that national security must be protected. It accepts the need to protect the capacity of the intelligence services and the police to defend national security within the rule of law, and it understands that this may in particular circumstances justify a refusal to disclose certain information. It is one thing to prevent sensitive information coming into the public domain. It is entirely another thing to prevent questions even being raised.
16. The scope of proposed s.69B places virtually every aspect of intelligence activities, past, present and future, beyond the investigative capacity of a statutory human rights agency. It severely restricts the scope of any investigation, and the particular provision forbidding the Commission from any investigation into anything concerning human rights in relation an intelligence service is bound to diminish not only the Commission's credibility, but public confidence in the compliance of the intelligence services with human rights.
17. It is precisely where national security concerns are raised that human rights oversight must be at its most attentive to prevent abuse. If the exercise of power becomes unquestioned, then it becomes unaccountable and most likely to be taken advantage of. If the Commission cannot even consider whether or not the intelligence services are breaching human rights, it will not have the opportunity to have the question of what evidence it can look at be adjudicated by the tribunal established under the Regulation of Investigatory Powers Act 2000.
18. Bearing in mind that virtually the same provisions were made in Schedule 2 to the Equality Act 2006, the Commission would still insist that the particular circumstances of Northern Ireland justify a different approach. It would also point out that the Irish Human Rights Commission does not have this limitation in its statute. Under section 8(11) of the Human Rights Commission Act 2000, the IHRC cannot demand evidence from a person if that evidence is subject to legal professional privilege. There is however no mention in that Act of national security overrides.
19. A compromise would be allowing the RIPA tribunal to authorise or deny the calling of evidence, but rejecting the blanket ban on investigating the intelligence service. At least questions could be asked of the intelligence services even though there would be no obligation to give answers.
Clause 14, page 12 leave out line 4 to page 13, line 16.
Clause , page 13, leave out lines 8 to 12.
Access to places of detention
20. Clause 15 would, by a new s.69C of the Northern Ireland Act 1998, allow the Commission to enter a place of detention only during and for the purposes of a formal, time-bound investigation established under s.69(8). For any other purpose, however serious or urgent, the Commission would need to secure the permission of the relevant authorities.
21. The Commission needs to have the option of visiting places of detention as a means of fulfilling its statutory functions under s.69(5), (6) and (8) of the Northern Ireland Act 1998, i.e. in relation to legal proceedings, research, investigations or educational activities. The Commission may from time to time be made aware of a particular situation pertaining in a prison or holding centre which requires immediate attention, and which the relevant authorities may not wish the Commission to have access to. The Commission may also wish to review the operation of such a centre without the centre's staff having the benefit of preparing for the visit in advance.
22. The Commission would therefore wish to have a right of access to places of detention for the exercise of any of its statutory functions, and protection against any inappropriate use of this power is available through judicial review.
23. Subsection 3 offers an extensive list of "places of detention", but reliance on the ordinary English meaning of the phrase would provide a more efficient and inclusive approach as was done in, for example, the Armed Forces Act 2006 and the Criminal Justice Act 2003. The opportunity could also be taken to address any possible consequences of delay in amending the list.
Clause 15, page 13, line 27, leave out 'means' and insert 'includes'.
Clause 15, page 14, line 44, after 'amend' insert 'the list of places of detention mentioned in'.
24. The Commission has conducted extensive research in prisons and juvenile justice establishments since it was created in 1999; it has dealt with numerous complaints and inquiries from prisoners and from prison staff; it has advised Government and the Prison Service on numerous matters connected with prison conditions and policies; staff and Commissioners have undertaken an extensive series of visits to many places of detention, not all in the prison estate. The Commission needs to be able to enter places of detention for a variety of purposes falling within its remit, not just for formal investigations. On a number of occasions in the past, its access has been obstructed and delayed to the extent that judicial review proceedings have had to be instigated.
25. The UN Committee Against Torture has indicated that it wants the NIHRC to participate in the UK's 'national preventive mechanism' under the Optional Protocol to the Convention Against Torture (OPCAT), and the NIHRC is more than willing to play that role. Under Article 20 of OPCAT, the mechanism should be accorded, among other things, "access to all places of detention and their installations and facilities".
26. Another point of reference should be the powers available to the Council of Europe's Committee for the Prevention of Torture (CPT), which has by treaty "unlimited access to any place where persons are deprived of their liberty" anywhere in the United Kingdom. It would be illogical and anomalous for a body established by Parliament, with a permanent local presence and a broad mandate for the protection of human rights, to be denied powers available to a European agency that has a narrower remit and, in practice, can only visit once every few years. The Human Rights Commission does not in any way wish to supplant the role of the CPT - in fact, it has co-operated with it and actively encourages it to visit - but the brief and infrequent visits of the CPT are not enough to ensure the effective protection of the human rights of all detained persons.
27. In the interests of efficiency, the Commission would as a general rule prefer to arrange a mutually convenient time for any visit to a place of detention, all things being equal. However, to be effective as a means of discouraging or uncovering human rights violations, the power of access to places of detention must allow for unannounced visits. As drafted, s.69C imposes a minimum delay of 15 days' notice between the Commission deciding to investigate, and gaining the right of entry. Subsection 5 makes no provision for emergencies, and subsection 6 further delays access by allowing for application to the county court. The county court is able not only to prevent or restrict access, but to dictate alterations to the terms of reference decided by the Commission and communicated by it to all interested parties.
28. Subsection 8 establishes that the county court, in considering whether to limit or prevent access, or force the Commission to change the terms of reference of an investigation, shall have regard "in particular" to "the likely impact... on the operation of the place of detention". The term "in particular" has a definite weight in statutory formulae of this kind. This emphasis puts administrative convenience above, for example, establishing whether persons in custody are being subjected to inhuman or degrading treatment or punishment.
Clause 15, page 14, line 34, leave out ', in particular'.
29. The Commission would again refer to the powers of other statutory bodies. There is no limitation placed on HM Chief Inspector of Prisons in section 5A of the Prisons Act 1952 in respect of the power to inspect prisons. In practice the Inspector carries out announced inspections and unannounced inspections on the basis of intelligence indicating serious concern. In Northern Ireland, even for the mundane reason of entering land for the purposes of determining information relevant to rates, the Department of Finance and Personnel only have to give 24 hours notice before entering under Article 26A of the Rates (NI) Order 1977. The Children's Commissioner also has power to enter and inspect property in the course of an investigation under Article 21 of the Commissioner for Children and Young People (NI) Order 2003. The only restrictions placed upon this power of entry are: it must be exercised at a reasonable time, the person carrying out the inspection must produce a duly authenticated document showing he is authorised to exercise that power, and the Commissioner must send the terms of reference of his inquiry to any relevant bodies. Subject to that, there is no limitation as to time limits before he can enter property.
Clause 15, page 14, leave out lines 11 to 13.
30. There appears to be a drafting error at the end of clause 15 which could be corrected as follows.
Clause 15, page 14, line 46, leave out "69C(9)" and insert "69C(12)".
31. Clause 19 would prevent the Commission from compelling evidence or accessing a place of detention for the purpose of investigating any matter relating to the period before 1 January 2008. The Commission could not, for example, require the production of any document created on or before 31 December 2007, even if it was directly relevant to a human rights violation existing on or arising after 1 January 2008.
32. The effect of the time limit is particularly severe in relation to the gathering of evidence; it is difficult to imagine how any human rights violation could effectively be investigated without looking into events and information from previous years. Thus in practice, it is likely that several years would have to elapse before the Commission would be able to use the powers to any effect.
33. The clause creates a notable anomaly in relation to the protection of human rights in Northern Ireland, as against other UK jurisdictions. In Great Britain, the existing equality bodies already have powers to compel evidence, and the new Commission on Equality and Human Rights acquires similar powers under the Equality Act 2006. The Scottish Commission for Human Rights Act 2006 contains not only evidence powers but a right of entry to places of detention, without any time restriction. Thus in England, Scotland and Wales, the sister bodies of the Northern Ireland Human Rights Commission have and will have powers that have no arbitrary time limit. In the Republic of Ireland also, the Irish Human Rights Commission, established in parallel with the Northern Ireland Commission as a result of the Belfast (Good Friday) Agreement, has extensive powers to compel evidence with no such time limit. The Agreement, and the corresponding treaty, committed the two states to maintaining an equivalent level of protection of human rights in Northern Ireland and the Republic.
34. The Minister, Paul Goggins MP, stated in the Second Reading debate that "It is important that the Commission has powers that focus on the future, so that it takes us forward, deals with the issues of today and tomorrow, and ensures that we have the right conditions in our society." He also suggested that the Commission was perhaps too busy to look into earlier matters and would be best directing its resources forwards. The Commission, as a body guided by the UN Paris Principles, wishes to be able to determine for itself how best to direct its energy and its resources after weighing up the human rights importance of a particular matter. It may very well decide that a flagrant breach of human rights in the past is just as deserving of investigation as a possibly less serious breach in the future.
35. Having regard to the particular circumstances of Northern Ireland, as a society emerging from a long period of conflict, Parliament will want to consider whether the interests of normalisation, confidence building and conflict resolution are served better by enabling or by blocking the investigation of past human rights violations. It need have no doubt that the primary focus of the Commission will always be on the prevention of such abuses, but its effectiveness in that regard, particularly in relation to its credibility with public authorities, is hardly enhanced by fettering its discretion as to what may or may not merit investigation.
36. The treatment of other oversight bodies is illuminating. As noted, the Commission for Equality and Human Rights established under the Equality Act 2006 has powers to investigate but with no limitation as to timing. In Northern Ireland, the Equality Commission has numerous powers of investigation which are not subject to limitation based on the time on which the matter being investigated arose. The Commissioner for Children and Young People (NI) Order 2003 specifically applies, in Article 27, to matters arising before and after its commencement. The Police Ombudsman does have a restriction on investigations arising more than 12 months after a complaint is made to it under the RUC (Complaints etc.) Regulations 2001. However, under Regulation 6, in cases where a police officer may have committed an offence or may be subject to disciplinary proceedings, the Ombudsman has discretion if she believes the matter should be investigated because of the gravity of the matter or the exceptional circumstances. In suitably grave matters, the Police Ombudsman investigates matters stretching back to the 1970s.
37. Clause 19 serves no useful purpose in terms of the protection of human rights and should either be left out, or amended to provide (as does the 2003 Order cited above) a positive formulation allowing the Commission to exercise its powers in relation to matters arising before as well as after commencement of the new Act.
Clause 19, Page 15, line 33, leave out subsections (1) to (4) and insert:-
'After section 69D of the Northern Ireland Act 1998 (c.47) (inserted by section 16 above) insert -
"69E Exercise of powers: matters arising before commencement
The Commission may exercise its powers under this Act in relation to matters arising before as well as after the provisions conferring those powers come into force.".'
38. This concludes the Commission's briefing on those aspects of the Bill that relate to its powers. The Commission's views on other aspects of the Justice and Security (Northern Ireland) Bill will be set out in a separate paper.
Northern Ireland Human Rights Commission
Temple Court, 39 North Street
Belfast BT1 1NA
Tel. (028) 9024 3987
Textphone (028) 9024 9066
Fax (028) 9024 7844