Joint Committee on Human Rights Appendices to the Minutes of Evidence


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 focus.

  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 perpetrator—murder 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 democracy.

  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 is awaited.

  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 silk—all cases 2000.

  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 Northern Ireland.

  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).

Jane Winter


26 February 2001

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2001
Prepared 11 May 2001