Letter from the British Irish Rights Watch
to the Chairman of the Committee
As you may already know, British Irish Rights
Watch is an independent non-governmental organisation and registered
charity that monitors the human rights dimension of the conflict
and the peace process in Northern Ireland. Our services are available
to anyone whose human rights have been affected by the conflict,
regardless of religious, political or community affiliations,
and we take no position on the eventual constitutional outcome
of the peace process.
Given our remit, you will understand that our
comments on the Human Rights Act will have a Northern Ireland
The situation in Northern Ireland is different
from that in the rest of the United Kingdom because, so far, Northern
Ireland is unique in having a Human Rights Commission. Its existence
and its high profile in Northern Ireland are raising awareness
about human rights and are probably making more of a contribution
than the Human Rights Act itself towards building a human rights
culture. Having said, that, the conflict in Northern Ireland and
the many inroads made into human rights during the last thirty
years means that such a culture has to be built from a even lower
base in Northern Ireland than elsewhere.
There were two defects in the Human Rights Act
that inhibit the creation of a human rights culture. First, the
Government failed to take the opportunity afforded by incorporation
to cancel its derogation from the European Convention on Human
Rights over prolonged detention for those arrested under emergency
laws. Derogations are only permitted where there is a "public
emergency threatening the life of the nation" (Article 15),
a state of affairs that cannot be said to apply in Northern Ireland.
Furthermore, the derogation was not introduced in response to
such an emergency, but in response to a ruling of the European
Court of Human Rights (Brogan v UK), which held that prolonged
detention without production before a court was in contravention
of Article 5 of the Convention.
Secondly, the Act does not incorporate Article
13 of the Convention, which provides for effective remedies for
human rights violations. This is, in our view, short-sighted,
in that it will lead to applications to the European Court of
Human Rights simply on the question of effective remedy.
The first of these defects has now been remedied,
in that the UK has very recently withdrawn its derogation, but
the second defect remains.
Another inhibiting factor is the continued existence
of emergency laws in Northern Ireland, many of which have been
perpetuated in the Terrorism Act. They create a twin-track system
of criminal justice in which suspects and defendants have fewer
rights under emergency laws than they do under the ordinary law
because of the supposed motivation for their acts. In our view,
it is morally and logically offensive to attempt to distinguish
serious crimes such as murder on the basis of the alleged motive
of the perpetratormurder is murder, and is always heinous.
It is equally indefensible, though, to apply different due process
rights to perpetrators on such a basis. To do so is to deny a
basic principle that underpins both the UK's unwritten constitution
and international human rights law, that of equality before the
law. To perpetuate such discrimination in permanent laws makes
a bad situation worse and enshrines an approach which, if extended
to other areas of law, would deepen divisions in society and undermine
democracy. The extension of this twin-track system to other jurisdictions
by means of the Terrorism Act will, we believe, undermine the
creation of a human rights culture in those jurisdictions as well.
A further inhibiting factor which has also spread
beyond Northern Ireland is the abrogation of the right of silence.
The drawing of adverse inferences by the courts from suspects'
failure to answer police questions or to testify in their own
defence undermines the privilege against self-incrimination, reverses
the burden of proof, and violates the right to a fair trial.
We would also draw attention to the issue of
human rights and policing in Northern Ireland. A radical review
of policing was brought into being under the Good Friday Agreement,
and was conducted by a team led by Chris Patten. They recommended
that human rights be placed at the heart of policing in Northern
Ireland. However, in the face of unionist opposition to the proposals
for reform of the RUC, the government watered down many of Pattern's
proposals. We were deeply perturbed by the government's resistance
during the passage of the enabling Bill to amendments advocating
the explicit adoption of international human rights norms and
standards by the new police service. During the Committee stage,
Mr Howarth even claimed that the RUC has a good human rights record
(Hansard, 20.6.00, col 152)a claim that simply does
not stand up to scrutiny. This resistance is doubly disturbing
in view of the commitment contained in the Good Friday Agreement
to "the protection and vindication of the human rights of
all", and pattern's insistence, in what was surely a deliberate
repetition of that wording, that "the fundamental purpose
of policing should be ... the protection and vindication of the
human rights of all". As things stand, only new recruits
are obliged to take the new oath, which emphasises respect for
human rights. This compounds a fundamental error made by the Patten
Commission, who failed to recommend any mechanism for weeding
out the human rights abusers within the RUC, who unfortunately
were responsible for considerable ill-treatment and threats against
suspects and lawyers over the years. Human rights education within
the RUC also gives cause for concern, with too much training being
delivered by non-expert RUC officers themselves.
Another cause for concern in Northern Ireland
is persistent attempts to intimidate defence lawyers, many of
whom are likely to be in the forefront of bringing cases under
the Human Rights Act. Defence lawyers in Northern Ireland have
suffered considerable abuse, including death threats, much of
it emanating from RUC officers in remarks to the solicitor's clients.
Two lawyers, Patrick Finucane and Rosemary Nelson, have been murdered.
In Patrick Finucane's case there is evidence of state collusion
in his death and in Rosemary Nelson's case collusion is suspected.
The United Nations' Special Rapporteur on the independence of
judges and lawyers, Dato'Param Cumaraswamy, visited the United
Kingdom in 1997. He delivered his report to the United Nations
Commission on Human Rights in April 1998. He concluded that "...
the RUC has engaged in activities which constitute intimidation,
hindrance, harassment or improper interference" with lawyers.
He found that intimidation and harassment of defence lawyers in
Northern Ireland was "consistent and systematic". He
called for a public inquiry into Patrick Finucane's murder and
made a number of other recommendations designed to secure lawyers'
safety that the government has failed to implement. Rosemary Nelson
was murdered in March 1999, despite numerous warnings about her
safety having been made by the Special Rapporteur and human rights
groups to the RUC and the government, all of which met with complete
indifference. The government's failure to robustly defend the
crucial role that defence lawyers play in the criminal justice
system has led to a situation where loyalists have openly threatened
lawyers (and others, such as journalists and community activists)
on the world wide web, and some lawyers continue to work in fear
of their lives. Such a situation is inimical to a human rights
culture. It undermines the rule of law and erodes public confidence
in the criminal justice system, and is intolerable in a developed
In assessing the impact of the Human Rights
Act, therefore, we suggest that it is not possible to consider
the Act in isolation. It needs to be considered against the background
of the legal systems, administrative practices and cultures in
which it operates.
Education will be absolutely key in creating
a human rights culture. We would like to see human rights taught
at all levels of school education, and the introduction of first
degrees in human rights, which currently seem to be exclusively
the domain of higher degrees. We hope that the Committee will
undertake an early review of human rights education.
Something we have noticed in our work already,
even though the Human Rights Act is in its infancy, is that ordinary
people, and others, are ignorant about human rights. Many people,
including some politicians, are confused about how human rights
apply, thinking that the rights protected by the Human Rights
Act can regulate disputes between citizens, rather than between
citizens and public authorities. Education is clearly needed to
dispel this confusion, otherwise there is a danger that people
will feel let down by the Act because of erroneous perceptions
about its scope.
A government failing that is frequently the
subject of complaint by the human rights mechanisms of the United
Nations is their non-compliance with the requirement to publicise
their obligations under international human rights law. For example,
once every four or five years the UK must report to a number of
committees at the UN, such as the Human Rights Committee, about
its observance of human rights treaties to which it is a party.
States are supposed to publicise this process, make its reports
widely available, and publicise the findings of the relevant committee.
The UK's record in this regard is exceptionally poor. One way
to encourage the growth of a human rights culture would be to
set up a programme of compliance with these obligations, and to
put in place mechanisms that would encourage debate about the
implementation and impact of the Human Rights Act.
It is very early days to assess the impact of
the Act in Northern Ireland courts. It is our impression that
only a handful of lawyers in Northern Ireland are fully conversant
with the Act, but those who are so are making imaginative use
of its provisions. There is no doubt that many policies and practices
in Northern Ireland are ripe for challenge, particularly in the
sphere of criminal justice. For example, a case that is about
to come before the courts concerns the loyalist leader Johnny
Adair. Following loyalist violence, his parole licence was revoked
and he was returned to jail, from whence he had been released
early under the Good Friday Agreement. He appealed against the
revocation and the board decided he should remain in prison after
hearing evidence against him which neither he nor his lawyer was
allowed to hear. The Northern Ireland Human Rights Commission,
who had asked to be allowed to observe the proceedings, were also
excluded. Johnny Adair is now seeking judicial review on the grounds
that he has been deprived of a fair hearing under Article 6 of
the European Convention.
Another case which has raised an interesting
point is that of Gerald Magee, a republican in whose case the
European Court of Human Rights had ruled that he had been deprived
of a fair trial because he had been denied access to legal advice,
which was necessary to counterbalance the oppressive regime in
the Castlereagh Holding Centre. On the basis of that ruling, the
Criminal Case Review Commission referred his case back to the
Northern Ireland Court of Appeal. This case clearly raises an
important issue about the regard the domestic courts must have
to decisions of the European Court of Human Rights. Judgement
Another indicator that is of interest is the
way the courts have approached third party interventions by the
Northern Ireland Human Rights Commission. No lesser judicial figure
than the Lord Chief Justice, Sir Robert Carswell, refused to allow
the Commission to make oral representations in a judicial review
(ex parte White) concerning the composition of the independent
Parades Commission, then criticised their written representations
as adding nothing to the court's knowledge. Other judges have
been more welcoming of the Commission's interventions; the Commission
has been accepted as a third party intervener in three other cases
of judicial review: by Gillen J in David Adam's Application,
concerning the failure of the DPP to give adequate reasons
for failing to prosecute RUC officers after the applicant was
awarded exemplary damages for assault; by Kerr J in Mark Fulton's
Application, concerning solitary confinement in prison; and
by Kerr J in In re Treacy and Macdonald, concerning the
declaration to be made by barristers when they take silkall
The Chief Coroner, John Leckey, on the other
hand, having asked the Commission to advise him in relation to
disclosure of information prior to the Omagh inquest, then declined
to allow them to make representations at the inquest itself. His
grounds for doing so were that the Commission has no statutory
power to act as a third party intervener. However, the courts
had already accepted them in such a role, and the coroner himself
enjoys the same discretion as the courts to accept or reject any
application from anyone who wishes to make a third party intervention.
The coroner has argued that the Commission did not draw his attention
to the decision by Carswell LCJ not to allow them to make oral
representations in the Parades Commission case, saying that had
he been aware of that ruling he would not even have sought their
advice. It is difficult to discern any logic to his stated position.
The Commission sought judicial review of the coroner's decision,
but Carswell LCJ ruled against them. That the Lord Chief Justice
should be so hostile to the Commission is worrying.
David Trimble MP MLA, the First Minister of
the Northern Ireland Assembly, has attacked the Commission in
the press over the composition of their equality working group
in relation to the draft Bill of Rights (and also attacked leading
human rights NGO the Committee on the Administration of Justice,
who chair the working group). Mr Trimble claimed that they have
no legal remit to draft a Bill of Rights, despite the fact that
both the Commission and the Bill of Rights are organs of the Good
Friday Agreement. An attack from the First Minister is of particular
concern since he has primary responsibility for human rights in
Other politicians have also shown themselves
to be unfriendly towards human rights and human rights groups.
For example, the level of debate when the Northern Ireland Grand
Committee debated human rights in Northern Ireland on 8th February
2001 was, frankly, dismal.
We wrote to you when the Committee was first
established with some suggestions for hearings that the Committee
might want to consider holding. For the sake of convenience, we
repeat them here:
(a) whether the UK ought to ratify the Optional
Protocol to the ICCPR, thus allowing the right of an individual
petition to the UN Human Rights Committee;
(b) whether there is a need for a Human Rights
Commission elsewhere in the UK apart from Northern Ireland;
(c) whether the derogations from the ECHR
and ICCPR in regard to prolonged detention under the PTA are justified
(not to be too parochial, this could be part of a wider review
of all the UK's derogations and reservations);
(d) whether the UK has implemented all the
recommendations made to it by UN committees and special rapporteurs
(conversely, if this is too huge a topic, then at least in relation
to Northern Ireland).
26 February 2001