Northern Ireland Troubles Bill - Human Rights compatible?
One of the current inquiries being run by the Joint Committee on Human Rights is “Legislative Scrutiny: Northern Ireland Troubles Bill”. The Committee currently consists of twelve members, appointed from both the House of Commons and the House of Lords, to examine matters relating to human rights within the United Kingdom, as well as scrutinising every Government Bill for its compatibility with human rights.
Nadine Finch, LMIU Vice Chairperson, was asked as an academic to make submissions in relation to a number of particular questions they posed about the compliance of the Northern Ireland Troubles Bill with human rights law. The submission, had a strict word limit and also restrictions about commenting on certain on-going legal proceedings.
The following is Nadine’s submission:
INTRODUCTION
In the 1980s, I worked on policing and race issues at the Greater London Council and London Strategic Policy Unit. I specialised in policing the Irish community. I have continued to write on Ireland and civil rights since that time.
From 1991 to 2015, I was a barrister practising in human rights and public law. I was a fee-paid judge in the First-tier Tribunal of the Immigration and Asylum Chamber from 2006 to 2015 and a salaried judge in the Upper Tribunal from 2015 to 2020. I have also undertaken research projects for the European Commission, various UN bodies and the Council of Baltic Sea States.
SUMMARY
Articles 2 and 3 of the ECHR contain absolute rights that must be applied to times of armed conflict, as well as times of peace.
I accept that there is no single model of investigation that is required into breaches of Articles 2 and 3. But there are minimum standards that have to be met. I do not believe that the Bill reaches these standards for the reasons given below.
It is my view that strict adherence to legal norms is needed not just when the context is easy, but also when the delivery of justice is a challenge. All of those killed or seriously injured in Northern Ireland have the same right to justice and that no-one is exempt from the consequences of actions that resulted in the unlawful killing of others.
The Good Friday and Stormont House Agreements recognised that the legacy of the Troubles was a matter to be addressed by the people of Northern Ireland. Yet, the UK Government has ignored the Northern Ireland judiciary and the Northern Ireland Assembly when addressing devolved matters in this Bill. For instance, I note that in a recent Memorandum for the Assembly, the Northern Ireland Minister of Justice stated that “…I cannot recommend that the Assembly provides consent for in the transferred matters in Bill. There has been a lack of meaningful engagement by the UK Government on the detail…The UK Government has never adequately resourced legacy and this has not changed with the introduction of the Bill”.
DO THE PROVISIONS FOR THE DISCLOSURE OF SENSITIVE INFORMATION TO AND BY THE LEGACY COMMISSION COMPLY WITH ARTICLES 2 AND 3 OF THE ECHR?
In the case of Dillon, the Northern Ireland Court of Appeal found that the disclosure processes within the ICRIR breached Articles 2 and 3 of the ECHR.
The proposals in the Bill do not satisfactorily meet its legal criticisms. It is arguable that even the definition of “sensitive information” in Clause 16(I) of the Bill fails to recognise the absolute nature of these Articles. As does the use of the term “information”, as opposed to “evidence”, in legal proceedings relating to very serious breaches of international law. The Government continues to act as if these rights are conditional and should not be applied to those in the service of the state or acting as their agents. In addition, the phrase “disclosed generally” is too imprecise to be used in the context of unlawful killings, torture and inhuman and degrading treatment.
Even if a balancing exercise is appropriate, which I do not believe to be the case, can it be proportionate to apply the test of a mere risk to national security and not the more appropriate one of a “serious risk”? This should be the test, if the Government gives proper weight to the public interest in open justice.
Paragraph 5(3) of Schedule 5 to the Bill also provides the Secretary of State for Northern Ireland with an ultimate veto on the disclosure of evidence to and in inquisitorial and other proceedings in the Legacy Commission. This of itself, undermines any assertion that the proceedings can be classified as independent and fully compliant with the ECHR.
Furthermore, the initial appeal against any such decision included in paragraph 10 of Schedule 5 remains no more than a review; comparable to a judicial review. At best, the remedy will be that the Secretary of State will be asked to remake his decision. There will be no obligation for him to make a second decision that is ECHR compliant.
Any further appeal, as provided for in paragraph 11 of Schedule 5, will not be permitted on the individual facts of the case but will be concerned with whether an important point of principle or practice is being raised or there are compelling reasons to grant the appeal. This again will not be an appeal that will engage the individual circumstances of an unlawful killing or serious ill treatment that has remained without legal sanction for many decades.
Breaches of international law should be treated as fundamental errors of law and not merely administrative mistakes.
The Bill has also failed to replicate the power currently held by coroners under Section 8(1)(d) of the Justice and Security Act 2013 to provide a “gist” or summary of evidence relating to the involvement of the State and its agents in unlawful killings in Northern Ireland. As experienced members of the judiciary sitting in the coronial system in Northern Ireland have found, without at least an ability to provide families with a gist of the circumstances of a relative’s killing, the procedural obligations of Articles 2 and 3 cannot be met.
Compliance with the procedural elements of Articles 2 and 3 requires an acknowledgement of State involvement in a significant number of legacy killings. The Government needs to create a process in which the relevant circumstances of these killings can be disclosed to their families and the wider post conflict society in Northern Ireland. As noted above, Articles 2 and 3 of the ECHR do not provide conditional rights. A failure to disclose evidence relating to unlawful killings perpetuates the belief that these may have arisen from policies and practices, such as shoot to kill.
A bill that seeks to conceal facts from relatives and the wider public will not encourage involvement in the legacy process or ensure that such killings could not be replicated in the future. Transparency and accountability are fundamental to the investigatory rights protected by Articles 2 and 3 of the ECHR and to any strategy aimed at a durable peace and the widest possible community cohesion.
ARE THE PROVISIONS CONCERNING THE RESTRICTION ON PUBLIC ACCESS TO INQUISITORIAL PROCEEDINGS COMPATIBLE WITH ARTICLES 2, 3 AND 10 OF THE ECHR? (CLAUSES 56 – 58)
Inquests in the coronial system were held in public. The procedural obligations of Articles 2 and 3 recognise both the practical and legal benefits that arise from the involvement of the public. It is possible that an attendee may realise that they have relevant evidence once a public inquest begins and that, therefore, justice will be better served. The transparency of any proceedings also assists in building the necessary public confidence in those proceedings. This is of particular importance, as legacy inquests have been delayed, sometimes for decades. In addition, legacy inquests that have been completed have revealed the extent to which evidence has been withheld or destroyed. Without relevant evidence, being disclosed, justice cannot be seen to be delivered and those responsible for unlawful killings may not be held accountable.
Clause 56 of the Bill also contains a wide range of restrictions that can be applied to prevent the entry of individuals to inquisitorial proceedings. This may exclude members of the family and community from legal proceedings that should have been designed to bring closure and transparency. In addition, it breaches the right in Article 10 of the ECHR to receive information. Article 10 may be a conditional right but some of the justifications in the Bill for restricting access to proposed inquisitorial proceedings are not contained in Article 10.2. It makes no mention of the State being able to restrict an individual from receiving information because this may delay or impair the efficiency or effectiveness of proceedings or because this would result in additional costs, as is the case in clause 56(4)(e) of the Bill.
IS THE PROVISION OF LEGAL AID TO FAMI.LIES COMPATIBLE WITH ARTICLES 2 AND 3 OF THE ECHR (CLAUSE 59)
It is welcomed that the Government now accepts, in principle, that the provision of legal aid for family members in the inquisitorial proceedings is necessary to comply with Articles 2 and 3 of the ECHR. However, Clause 59 falls short of the minimum standards required. The award of legal aid will be at the discretion of a judicial panel member appointed by the Secretary of State for Northern Ireland. The latter is a person whose office links directly to the actions of those who were party to the conflict during the Troubles. It was his predecessors and the Northern Ireland Office, who were involved in both policy and operational decisions, which may be relevant to the deaths to be investigated. Providing the Legal Services Agency Northern Ireland with the power to fund legal representation would have complied with the procedural requirements attached to Articles 2 or 3. No reasons have been provided for not doing so.
Moreover, even if the necessary independence of members of the judicial panel was to be accepted, Clause 59 permits both the Legacy Commission and the Secretary of State for Northern Ireland to make conditions or regulations relating to the discretion to be applied by a member of the Judicial Panel. This does not suggest that families will be granted legal aid in all circumstances. Therefore, the proposals do not comply with the procedural requirements of Articles 2 and 3.
In addition, reading Clauses 53 and 59 together, close family members may or may not be recognised as core participants. This means that, if they are not giving evidence or producing a document, they may not be entitled to legal aid. The Judge could also deem that they are only entitled to instruct a lawyer jointly with others. Their designation as a core participant can also be revoked. Again, all of these provisions undermine the State’s compliance with Articles 2 and 3.
Without the advice and representation provided by experienced and expert lawyers, families are very unlikely to be able to interrogate the complex evidence that is usually part of any narrative of an unlawful killing. This is particularly the case in Northern Ireland given the lack of equitable media coverage at the time of most of the legacy cases, the considerable length of time that may have passed since the killing and the reluctance by some parties to disclose relevant evidence.
WILL MEMBERS OF THE JUDICIAL PANEL BE SUFFICIENTLY INDEPENDENT TO COMPLY WITH ARTICLES 2 AND 3?
It is a legal truism to state that any erosion of judicial independence poses a direct threat to democracy and human rights. Paragraph 21 of the Stormont House Agreement recognised that to ensure the transition to long-term peace and stability, it was necessary to uphold the rule of law and create processes were transparently equitable. Any measures in the Northern Ireland Troubles Bill that seek to reduce, or appear to reduce, the independence of the judiciary, jeopardise these principles and the delivery of justice.
In paragraph 247 of Case of Gudmuner Andri Asdtradsson v Iceland (Application No. 26374/18 in the Grand Chamber of the ECtHR stated that “the Court accordingly takes the view that only those breaches that relate to the fundamental rules of the procedure for appointing judges – that is, breaches that affect the essence of the right to a “tribunal established by law” – are likely to result in a violation of that right (see paragraph 102 of the Chamber judgment). In particular, as the Chamber rightly pointed out, the Court “must look behind appearances and ascertain whether a breach of the applicable national rules on the appointment of judges created a real risk that the other organs of Government, in particular the executive, [could exercise] undue discretion undermining the integrity of the appointment process to an extent not envisaged by the national rules in force at the material time” (see paragraph 103 of the Chamber judgment)”.
It is arguable that Clause 6 does create a fundamental breach of the principles now applying in Northern Ireland for the appointment of judges. The question to be asked is whether the manner in which the judicial panel is to be appointed creates a real risk that, by giving the Secretary of State for Northern Ireland the final say on the appointments of the relevant judges, this undermines their independence.
The proposal that the Secretary of State has ultimate control over the appointment of the Judicial Panel is retrograde step that returns the appointment of judges to the hands of the executive. It is not in keeping with the development of judicial appointment commissions in all UK jurisdictions, which was acknowledged as essential to ensure transparency and accountability.
Clause 6 of the Bill also states that the Secretary of State for Northern Ireland must appoint members of the Legacy Commission judicial panel, who are or have been a judge in the Supreme Court, the Court of Appeal in England and Wales, the High Court in England and Wales, the Court of Session, the Court of Appeal or the High Court in Northern Ireland. This may also further distance appointees from the jurisdiction in question. It is arguable that judges appointed by the Northern Ireland Judicial Appointments Commission would be subject to a higher level of accountability and transparency to families in Northern Ireland. This is turn would enhance their independence from the executive in London.
The European Commission for Democracy through Law (“the Venice Commission”) adopted a Rule of Law checklist in March 2016. This was endorsed by the Parliamentary Assembly of the Council of Europe in October 2017. It highlights both the need for an appearance of independence and impartiality and freedom from political influence. It also states that the permanency or fixed term of the appointment of a judge is an important signifier of independence. Judges appointed under Clause 6 will not have a permanent term of office. Paragraph 13(3) of Part 4 of Schedule 1 to the Bill read together with paragraph 19(1) of Part 4 of the Schedule, states the Secretary of State can require a member of the judicial panel to resign on a date specified by him.
ARE THE PROVISIONS RELATING TO INTERIM CUSTODY ORDERS COMPATIBLE WITH ARTICLES 6 AND 7 AND PARAGRAPH 1 OF PROTOCOL 1
(CLAUSE 89-90)
The Government pledged to repeal and replace the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. But, in these clauses, it is proposing to retain powers which breach both common and human rights law.
Article 7 of the ECHR prohibits a person being punished for a crime which did not comply with domestic or international law. In UKSC/2018/0104, the UK Supreme Court held that the interim custody order made in respect of Gerard Adams in 1973 was not lawful, as the proper procedure for making such an order had not been complied with. As a consequence, later convictions were unlawful.
This decision also complied with Article 9 of the International Covenant on Civil and Political Rights, which the UK had ratified in 1976. Under the Vienna Convention on the Law of Treaties, the UK is obliged to refrain from acts which would defeat the object and purposes of a treaty.
Clause 89 of the Bill retrospectively attempts to re-write Article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 (S.I. 1972/1632 (N.I. 15). This is a power that has not been used since 31 December 1975. Clause 90 states that Clause 89 will not have the effect of reinstating any conviction. But that it will prevent any compensation being paid to anyone unlawfully detained under an order in force in the early 1970s. This will not comply with Article 14(6) of the Covenant. It states that when a conviction has “been reversed…the person who has suffered punishment as a result of such a conviction shall be compensated according to the law.”
It is also arguable that this proposal breaches Article 6.2 of the ECHR. If the presumption of innocence is properly applied, a refusal to pay compensation for unlawful detention amounts to such a breach.
Yet again, the Executive is seeking to ignore its obligations under international human rights law. It is also using legislation to overturn a decision in the UK’s most senior court. The appropriate remedy would have been to seek to appeal the decision at the time of the judgment.
Its proposal may also breach the human and legal rights of the 1,900 individuals, some of them children, who were interned under interim custody orders between 1972 and 1975.
Nadine Finch
Honorary Senior Policy Fellow, University of Bristol