Joint Committee On Human Rights Written Evidence

12. Memorandum from Madden and Finucane, Solicitors

  We understand that the Joint Committee on Human Rights is conducting a short inquiry into the work of the Northern Ireland Human Rights Commission for the purpose of considering the operation and effectiveness of the Commission to date, its functions, powers and resources.

  We wish to submit written evidence to the Joint Committee and our submissions are focused primarily on the Human Rights Commission's Casework function.

  Madden and Finucane are a firm of solicitors with a significant human rights case-load. By way of illustration Madden and Finucane is the firm which represented Hugh Jordan and Gervaise McKerr in their successful applications to the European Court of Human Rights, cases in which the Human Rights Commission submitted an amicus brief.

  As such we have some experience of working with the Human Rights Commission, specifically with respect to the Commission's casework function. We have since the establishment of the Human Rights Commission applied on behalf of a number of our clients for funding from the Commission to enable our clients to pursue human rights cases through the domestic courts. As such we have experienced the workings of the Commission's Casework functions and it is on that topic and in light of that experience that we wish to make brief submissions.

  In essence we wish to make submissions on two issues which we shall develop more fully below—

    (i)  The conduct of the Commission and in particular the Chief Commissioner in relation to his conduct with respect to one case in which we received funding. The case of E v Chief Constable and Secretary of State (The Holy Cross School case)

    (ii)  The failure of the Commission to agree a Protocol with the Legal Aid Department in relation to the funding of cases and the difficulties which this poses for practitioners and their clients.

E v Chief Constable and the Secretary of State

  We represent an anonymised Applicant, identified as E who is the parent of a child who attended Holy Cross Primary School in the Ardoyne area of Belfast in 2001. As members of the Committee may recollect, in September 2001 Loyalist protestors sought to prevent Catholic primary school children from travelling up a section of the Ardoyne Road to the Holy Cross School. The Loyalist protests were extremely violent, on one occasion a blast bomb was thrown at children walking to school, these protests continued over a period of months. During that period children and their parents were subjected to assaults, threats and vile sectarian and sexist abuse. Our client is currently in the process of judicially reviewing decisions of the Chief Constable of the Royal Ulster Constabulary (now the Police Service Northern Ireland) and the Secretary of State for Northern Ireland. The judicial review amounts in essence to a challenge to the failures in the policing and security operation conducted by the RUC in terms of how they failed to: adequately protect and vindicate the rights of the school children subjected daily to inhuman and degrading treatment as they walked to school; and, failed to take all necessary steps to secure the effective implementation of the criminal law and to secure the prevention, suppression and punishment of breaches. Copies of the pleadings can be provided to the Joint Committee if it is felt that it would be of assistance.

  In order to pursue her application for judicial review, the Applicant applied to the Human Rights Commission for funding and this application was acceded to. These proceedings have generated an extensive volume of evidence in the form of affidavits. Of particular relevance a number of Human Rights Commissioners have sworn affidavits which have been lodged by the Applicant. These affidavits variously describe events witnessed by members of the Human Rights Commission who visited the School during the protest. The affidavits also provide details of meetings held between the Human Rights Commission and the Chief Constable of the RUC and between the Human Rights Commission and Jane Kennedy of the Northern Ireland Office. Of particular significance is the evidence of three commissioners: Frank McGuinness, Paddy Kelly and Inez McCormack in relation to a meeting held between Ronnie Flanagan and the Human Rights Commission. In essence the Commissioners gave evidence that Ronnie Flanagan conceded at the meeting that when deciding on the policing strategy the principle that the best interests of the children must be paramount did not inform his approach. This concession has been disputed by Ronnie Flanagan and for information purposes we attach copies of all the affidavits filed by these Commissioners and the former Chief Constable which relate to this issue. As can be seen the Notes of the Meeting taken by a member of the Commission's staff supports the evidence given by Commissioners on this topic.

  The Applicant obtained leave in these proceedings on the 15 November 2001. These proceedings were supported by and funded by the Human Rights Commission, following a decision of the Casework Committee which pre-dated the leave hearing. In the course of the leave hearing the High Court was provided with the Notes of the Meeting held between the Chief Constable and the Human Rights Commission which had been prepared by a member of Commission staff.

  In December 2001 the Chief Commissioner wrote a letter to the former Chief Constable, the Respondent in these proceedings. In essence the letter advises the Chief Constable that—

    (i)  The decision to fund the Applicant's case was not unanimous;

    (ii)  Some Commissioners opposed the decision of other Commissioners who swore affidavits in the case.

    (iii)  Some Commissioners opposed the decision to release the Notes of the Meeting to the Court.

    (iv)  Most significantly, the Chief Commissioner stated: "I myself am strongly of the view that the policing of the protest at the Holy Cross School has not been in breach of the Human Rights Act."

  Briefly, we should indicate, that it is our understanding that the Notes of the Meeting were disclosed to the Court on the advice of counsel in the case, who took the view that the Commission, although not a party to the proceedings nonetheless had an obligation to make full and frank disclosure to the Court. Counsel was moreover advised on the date of the leave hearing that the decision to release those Notes was the decision of the Chief Commissioner acting alone, which appears to contradict the position as stated in the correspondence.

  This letter was not disclosed to the Applicant at the time it was written and the Applicant and her legal representatives first became aware of the existence of that letter in and about April 2002.

  The letter was disclosed to us by the Commission following a meeting of Commissioners on 8 April 2002.

  In the interim in March 2002 at a stage when affidavits were still being exchanged in the course of the judicial review proceedings a letter was sent from the Chief Constable to the Chief Commissioner. In essence the letter raises the following concerns with the Chief Commissioner about the Applicant's judicial review proceedings—

  (i)  The decision of individual Commissioners to swear affidavits in the case;

  (ii)  The "continued funding by the Commission of the litigation"; and

  (iii)  The vintage of the dispute which had at that stage come to an end.

  The Chief Constable advised the Chief Commissioner that he had been advised by his lawyers to disclose the Chief Commissioner's letter to the Court and indicated that he felt he had a public duty to do so. The Chief Constable went on to

    "very strongly urge the Commission to review its funding decision, having regard to the vintage of the dispute and the resources issue. I would strongly maintain that it is inappropriate for the Commission to continue to commit public funds to this litigation. The Commission is, of course, at liberty to reconsider, review and revoke decisions of this nature at any time. Please treat this letter as a solemn and formal request for review and revocation."

  The Chief Commissioner responded to this correspondence on the 28 March 2002. The letter stated as follows:

    "Our Commission meets again on Monday 8 April and we will be considering then our involvement in this particular litigation. I should be able to let your office know on the following day what the outcome of our consideration has been. I would be most grateful if you could delay taking a decision on the disclosure of my letter of 4 December until then."

  This entire exchange of correspondence which related to: the merits of the Applicant's case; and the continued funding of the Applicant's case, was not disclosed to the Applicant at the relevant time. In essence the Chief Commissioner of the Human Rights Commission which had decided to fund the Applicant's case because [I]t considered that the application was in respect of proceedings relating to the protection of human rights … and that there was an apparent non-compliance with a rule or principle for the protection of human rights engaged in correspondence about the case with the Respondent to the proceedings without keeping the Applicant informed. Moreover the Respondent was advised that the Commission would on 8 April 2002 "be considering our involvement in this particular litigation." The Applicant whose case it was, was completely unaware that her case was to be discussed on the 8 April 2002 or that there was a question-mark over the Commission's continued involvement in the case.

  We were not privy to the events of 8 April 2002. However, we have engaged in correspondence with the Chief Commissioner and have copied that exchange of correspondence to all Human Rights Commissioners. We recently received a letter from Professor Christine Bell which we believe sets out what occurred on the 8 April 2002. Professor Bell states as follows:

    "Removal of funding from the applicant's case was discussed at the 8 April 2002 Commission meeting. The matter was raised by the Chief Commissioner who made a proposal to withdraw funding on the grounds that the Commission did not have sufficient funds to pay for it. This was then discussed, culminating in a consensus decision to ask the case work committee to draft criteria for reviewing case funding in all cases. My recollection of events is supported by the following:

(a)  The amended minute of the meeting. While the minute, in accordance with then Commission policy only to record decisions, does not record the discussion, the fact that discussion took place is supported by the reference to the proposal, and Inez McCormack's dissent on the issue, These are publicly available on the commission web site.

    (b)  Private correspondence between myself and the Chief Commissioner dealing in part with my unhappiness at the Chief Commissioner's original letter to the Chief Constable, and at the proposal as regards withdrawal funding.

  The Commission's minutes also reflect the fact that the Chief Commissioner made a proposal to withdraw funding from the Applicant's case:

    "It was decided to defer a decision on the proposal to withdraw funding from this case until the casework committee has time to produce criteria for the review of cases in general. Inez McCormack objected to the proposal from the Chair that financial assistance be withdrawn from the applicants in this case on the grounds of financial pressures and the controversial nature of the case as the proposal in her view, puts the Commission in serious breach of its duties and powers. It is her view that for the Commission to decide criteria for review of casework assistance in the context of a particular case is an abuse of its duties and powers under the Northern Ireland Act. It is the Commission's duty to decide fair and transparent criteria for the exercise of its responsibilities and to change funding criteria or review a funding criteria in light of a request tabled by a respondent to withdraw financial assistance or because of potential embarrassment to the Commission or the Chief Commissioner is, in her view, a completely improper exercise of its powers and duties."

  Subsequent to the meeting of the 8 April 2002 the Applicant's legal representatives were provided with copies of the letters exchanged between the Chief Commissioner and the Chief Constable. The Applicant sought to have this correspondence placed before the Court and the documents were exhibited to an affidavit sworn by the Commission's caseworker.

  Having lodged the affidavit with the Court the Applicant's solicitors released a press release and disclosed copies of the correspondence to the media. The Chief Commissioner then wrote to the Applicant's solicitors criticising the decision to issue a press release and contending that it was a breach of the terms and conditions upon which funding had been granted.

  We responded by correspondence dated the 2 May 2002. In essence we argued that we disputed that we were in breach of the terms and conditions of funding, in any event we contended that those terms and conditions were in breach of our client's Article 10 rights. We also sought information from the Human Rights Commission in relation to the meeting of the 8 April 2002. This has been the subject-matter of correspondence which continues to date. It is our contention that we have never received a satisfactory response to the questions which we have legitimately raised on our client's behalf.

  In his most recent correspondence to us dated the 4 November 2002, the Chief Commissioner asserts that—

    "funding of the above case was not discussed by the Commission on the 8 April 2002. Instead, quite properly in my view, the Commission decided to ask the Casework Committee to develop criteria against which the continued involvement of the Commission in all of its cases could be reviewed in the future."

  As can be seen this is contradicted by:

  (i)  Professor Bell, former Human Rights Commissioner;

  (ii)  The dissent to the minutes filed by Inez McCormack, former Human Rights Commissioner;

  (iii)  The exchange of correspondence between Professor Bell and the Chief Commissioner, extracts of which are quoted in Professor Bell's letter.

  We shall in light of the correspondence received from Professor Bell be corresponding further with the Commission in an attempt to obtain a substantive response to our correspondence of the 2 May 2002.

  We have grave concerns about the Chief Commissioner's conduct with respect to the Applicant's case and we are of the view that these are matters which this Committee should consider. The following issues are of particular concern—

  (i)  The Chief Commissioner's decision to write to the Respondent in a case funded by the Commission and communicate his views that the Applicant's case did not have merit. It is our view that his correspondence amounted to a significant breach of trust, it raises issues as to breach of confidentiality given the Chief Commissioner's access to information which could be regarded as subject to legal professional privilege and was entirely unethical and unprofessional. We deal with a large number of clients whose cases are funded by public authorities: the Legal Aid Department; the Equality Commission and the former Fair Employment and Equal Opportunities Commission. It has never been our experience that those bodies would engage in correspondence with the Respondent about an Applicant's case and the Commissioner's conduct is unique in our experience.

  (ii)  The Chief Commissioner's failure to disclose that correspondence to the Applicant and her legal representatives, given his decision to write to the Chief Constable. The correspondence was only disclosed at a point when it was inevitably going to go into the public domain as a result of the actions of the Respondent. The Human Rights Commission as an organisation should be open and transparent, the conduct of the Chief Commissioner on this issue was patently not.

  (iii)  The decision of the Chief Commissioner to propose at a Commission meeting to withdraw funding from the Applicant's case, ostensibly on the basis of the costs of the case (this at a time when no estimates of costs or bill of costs had been sent in the case]. It is our contention that this decision was motivated entirely by a desire to prevent the Respondent from placing the Chief Commissioner's letter into the public domain. In making that assertion we rely upon the correspondence sent by the Chief Commissioner to the Chief Constable which indicates that the Commission "will be considering . . .… our involvement in this particular litigation." This in response to a letter from the Chief Constable which the Chief Commissioner was asked to treat as "a solemn and formal request for review and revocation [of funding]." In an effort to avoid his letter going into the public domain the Chief Commissioner was willing to take steps which would have operated to deny the Applicant access to the courts in a case involving allegations of breaches of articles 2 and 3 of the Convention and prevent the litigation of a very important human rights case.

  (iv)  The fact that the Applicant's case was being discussed at the Commission's meeting and the Applicant had no notice of that fact and was prevented from making any representations on the issue. This in contrast to the position of the Respondent who was advised that the topic was on the agenda and had in effect made representations on the topic.

  (v)  The Chief Commissioner's criticism of and objection to the Applicant's legal representatives' decision to put the exchange of correspondence into the public domain. It is our contention that this was a completely inappropriate attempt to suppress the Applicant's right to publicise the manner in which the Chief Constable had sought to deny her access to the courts in order to pursue her claim.

  (vi)  The refusal of the Human Rights Commission as a body to respond substantively to the Applicant's correspondence seeking information about what occurred on the 8 April and the efforts by the Chief Commissioner in his correspondence of the 4 November to mislead the Applicant as to what had in fact occurred.

  As a firm of solicitors with a significant human rights practice and which will, in the interests of our clients, of necessity have to apply to the Commission for funding on future occasions we are concerned with the lack of professionalism; the lack of transparency and the unethical conduct of the Chief Commissioner in dealing with the Commission's casework function and we consider that this is a matter which the Joint Human Rights Committee should consider in the course of its deliberations.


  Since the establishment of the Human Rights Commission and given that it has powers under the Northern Ireland Act to fund litigation, applicants wishing to litigate in human rights cases can now make application for funding of the costs of litigation to the Human Rights Commission. This has the consequence that in theory an Applicant eligible for legal aid has a choice about which public authority she/he should apply for funding from. In practical terms it is necessary for the two pubic authorities to establish clear criteria upon which funding applications will be determined and to have a working protocol which enables Applicants to determine which body is the appropriate body to which to apply for funding. We have corresponded with both the Legal Aid Department and the Human Rights Commission in an effort to obtain a copy of a Protocol, if one exists. It is our understanding that no such Protocol exists.

  This has caused us major problems in cases with a human rights dimension. In effect when a client, eligible for Legal Aid, approaches us in a case with a human rights dimension and an application is made to the Legal Aid Department we are directed to apply for funding in the first instance to the Human rights Commission. In the event that no application is made to the Human Rights Commission our application for legal aid will be refused. We are therefore forced to go through a process of applying to the Human Rights Commission for funding, even though it is apparent from the criteria operated by the Human Rights Commission that our client will not get funding because she/he is eligible for funding from another source (the Legal Aid Department).

  There is an additional difficulty in that the Commission does not have an effective emergency procedure to enable them to determine applications for funding speedily, comparable to Emergency Legal Aid. The process of making a funding application to the Commission (which has no prospect of success) can result in substantial delay on the part of the Commission in determining the application. In cases which are urgent, this can have serious consequences: either there is a delay in the determination of Legal Aid, resulting in a delay in the lodging of proceedings; alternatively, we have on occasion felt the need to lodge proceeding without legal aid at a risk to our clients and ourselves. We have felt that in urgent cases we have little option in view of our professional obligation to our clients. This has implications for our office in that the Legal Aid Department will not pay for work done prior to the issue of a Legal Aid Certificate.

  The result is, that for an Applicant who is eligible for legal aid, they are placed in a worse position in a case with human rights dimension, than they were in prior to the establishment of the Human Rights Commission. The necessity to make dual applications creates unnecessary and time-consuming work and administration within solicitor's firms. It must also be the case that it creates unnecessary work for Commission staff and Commissioners in dealing with cases which have no prospect of being funded by the Human Rights Commission. The failure on the part of the Commission and the Legal Aid Department to negotiate and agree a Protocol in relation to the funding of cases seems to us to result in a cumbersome system of applying for funding and an unnecessary waste of public resources.

  We fail entirely to understand how some years after its establishment the Human Rights Commission has failed to address this very simple issue. We would welcome an opportunity to give oral evidence about this aspect of the submissions.

24 November 2002

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