16/09/10

INTRODUCTION

The Consultation Paper produced by the Secretary of State for Northern Ireland appears to show a significant improvement compared to previous documents produced by the Northern Ireland Human Rights Commission (1) and the Bill of Rights Forum (2).

The major point of progress comes as a result of the UK-wide approach to human rights taken by the Government, which considers the implications that rights provided for Northern Ireland may have for the rest of the UK. This approach is to be welcomed and must be maintained in the future so as to avoid the adverse consequences of discrepancies in legislation between Northern Ireland and the other parts of the United Kingdom in relation to issues that have national relevance.

To a lesser extent there has also been progress in the attempt, though timid, to define the scope provided in the Belfast Agreement for determining supplementary rights to those provided in the European Convention on Human Rights.

It must also be acknowledged that the Government has rightly indicated that a Bill of Rights should only enshrine fundamental principles, giving a measure of flexibility to public authorities for their implementation by way of legislation.

However, there are a number of issues that must urgently be addressed by the Government in order to determine the rights supplementary to those of the European Convention on Human Rights and which may be approved for a Bill of Rights for Northern Ireland. Firstly, the criteria for additional rights must be clearly and unambiguously defined, which supposes taking into account the reality of the facts in relation to what has occurred in Northern Ireland over the past 40 years, particularly the terrorist campaign waged in order to achieve political objectives. Secondly, the supplementary rights that meet the criteria should then be determined in order to efficiently and effectively address the terrorist threat, continuing terrorist activities and the legacy of terrorism, primarily in favour of the law-abiding people of Northern Ireland. Thirdly, the implementation of the Bill of Rights should be carried out by public authorities and enforced by the Northern Ireland judicial system and should not be used as a means for lobby groups to advance their own agendas.

We will therefore deal with (I) the criteria to determine the rights to be included in the Bill of Rights for Northern Ireland, (II) the relevant rights to oppose terrorism and its legacy, (III) the implementation and enforcement of the Bill of Rights for Northern Ireland to the benefit of all the people of Northern Ireland, before commenting on (IV) the equality and impact of the Government proposals for a Bill of Rights for Northern Ireland and finally submitting (V) recommendations for a Charter of Rights for Northern Ireland.


I. THE CRITERIA TO DETERMINE THE RIGHTS TO BE INCLUDED IN THE BILL OF RIGHTS FOR NORTHERN IRELAND

The approach chosen by the Northern Ireland Human Rights Commission (NIHRC) has gone well beyond the scope of the mandate given to it in the Belfast Agreement (3) and by the Secretary of State (4). The advice it submitted to the Government dealt not only with civil and political rights, but also considered a wide range of social, economic and cultural rights. The wider UK context within which the Bill of Rights for Northern Ireland was to be created was ignored. Instead of dealing only with fundamental principles in order to promote human rights and fundamental freedoms in a democratic society, the NIHRC enumerated a number of rights which did not address the particular circumstances of Northern Ireland and provided over-detailed provisions that would be better dealt with in legislation.

When considering the rights that should be introduced in a Bill of Rights for Northern Ireland, it is submitted that the Government has to consider the factual issues that need to be addressed. The Belfast Agreement provided some indications as to the elements that needed to be taken into account so as to be able to determine supplementary rights to those already set out in the European Convention on Human Rights. It is unfortunate that since the year 2000, when the Secretary of State gave to the NIHRC the mandate to advise on the Bill of Rights, at no time has there been a meaningful attempt to define the criteria for the Bill of Rights on the basis of the elements provided in the Belfast Agreement.

Since the Magna Carta (1215), Bills of Rights or Declarations of Rights in the UK as well as in other countries like France and more recently in the United Nations and the Council of Europe, have been instituted to address critical issues that occurred either in the history of those nations or more generally in the history of mankind. For example, the European Convention on Human Rights was created after the Second World War so as to ensure that no country that subscribed to it would return to fascism and ensure that the legislation of those countries would always comply with the benchmark of human rights within a democratic society defined in the Convention and through the European Court of Human Rights case law.

All these major legal instruments addressed issues that had become of paramount importance by laying down fundamental principles that were to be implemented for the betterment of society. In relation to society in Northern Ireland, the key question that must be answered relates to its factual and circumstantial particularities, which require a remedy by the implementation and enforcement of specific rights. In this regard, the 1998 Belfast Agreement provides some guidance as to the elements that should be taken into consideration in order to determine the supplementary rights for Northern Ireland.

The duty given to the NIHRC by the Belfast Agreement was:

“… to advise on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland. Among the issues for consideration by the Commission will be:
· the formulation of a general obligation on government and public bodies fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland; and
· a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors.” (5)

There are two elements that are to be taken into account together and not separately in order to determine supplementary rights. First, the right must reflect the particular circumstances of Northern Ireland. Second, the right must reflect the principle of mutual respect for the identity and ethos of both communities and also the principle of parity of esteem. Each of these elements constitute criteria that need to be defined as precisely as possible. Surprisingly, since the request was made by the Secretary of State to the NIHRC ten years ago to prepare this advice, no serious attempt has so far been made so as to give a definition for (A) the particular circumstances of Northern Ireland and (B) the principles of mutual respect for the identity and ethos of both communities and the parity of esteem.


A. First criterion: the particular circumstances of Northern Ireland

To this day there has been no meaningful study of the first criterion, “the particular circumstances of Northern Ireland”, either by the NIHRC or the Government in order to provide a definition of what these particular circumstances are. It would appear that one of the most peculiar circumstances in relation to Northern Ireland has been ignored. An analysis of the recent history of Northern Ireland over the past 40 years shows that the terrorist campaign has been and remains the most particular circumstance in Northern Ireland. This is especially the case when comparing its situation with the rest of the UK and Western Europe. The fact that no other European country has had to endure such a sustained and vicious terrorist campaign over such a long period of time – since the end of the Second World War – is indisputable. Northern Ireland is unique in several respects, but certainly it is a particular area in the European Union as a result of the intensity of the terrorist campaign. It is therefore difficult to understand why the NIHRC, the Bill of Rights Forum and the Government have systematically and persistently dodged this major particular circumstance.

The particular circumstances of Northern Ireland should be defined as including terrorism and its legacy, most specifically in favour of law-abiding people. A definition of terrorism (6) that applies to Northern Ireland, drawing on international conventions and other sources, must be given and any additional rights should provide a remedy to this particular circumstance and to the devastating effect it has had on democracy, human rights and fundamental freedoms. Giving consideration to this particular circumstance of Northern Ireland should now be made a matter of priority by the Government and further study should be carried out so as to determine the proper rights to be implemented and enforced for law-abiding citizens within a democratic society, while at the same time providing the necessary safeguards against terrorism.


B. Second criterion: principles of mutual respect for the identity and ethos of both communities and the parity of esteem

Both (1) the principle of mutual respect for the identity and ethos of both communities and (2) the principle of parity of esteem must be defined.

1. The principle of mutual respect for the identity and ethos of both communities

The principle of mutual respect for the identity and ethos of both communities should be defined as applying to the two main sections of the community, forming together one community. The terrorist strategy has been to divide society in pursuance of their political aim. It is therefore essential for the people of Northern Ireland that the sense of belonging to one unique community be restored, maintained and strengthened so as to preserve unity within society. Moreover, Northern Ireland society is not only made up of two main sections, but there are also other minorities that need to be equally recognised and accommodated.

In the Consultation Paper, the Secretary of State for Northern Ireland declared: “the Government believes that a Bill of Rights which has the support of the people of Northern Ireland could play an important role in underpinning the peace… by building and affirming respect for all cultures and communities…” (7). Before affirming respect for all cultures, it would be wise to consider to which culture respect should be given amongst those which have existed or developed within Northern Ireland society. The meaning of culture in human society encompasses acquired behaviours and behavioural patterns. Forty years of home-grown terrorism have developed within both main sections of the community, producing a culture of violence which has had the most tragic consequences. This culture should not be respected but must on the contrary be rejected and everything possible should be done to eradicate it in a democratic society such as Northern Ireland. For this reason the NIHRC and the Government should abstain from affirming respect for all cultures without specifying which cultures this applies to, and excluding any form of direct or indirect culture of violence. This is where a connection can be drawn between the most particular circumstance of Northern Ireland i.e. the terrorist campaign, and the culture of violence which must now be opposed in order that the principle for mutual respect for the identity and ethos of both communities within a democratic society as a whole be implemented in favour of healthy cultures and ethos, to the benefit of all the people of Northern Ireland.

2. The principle of parity of esteem

The same approach should be used for defining the principle of parity of esteem. There can and must be parity of esteem for cultures, ideas and opinions that are acceptable within a democratic society. The principle of parity of esteem cannot apply to cultures, ideas and opinions that promote disorder and crime, corrupt the moral tissue of society and have the potential to destroy democracy and human rights, such as those that eulogise and justify terrorism. The particular circumstance of Northern Ireland, which has been identified as terrorism, has a direct impact on how the principle for parity of esteem should be defined and applied. On the basis of the understanding we have come to (and which still needs to be complemented by further studies) of the criteria that are to be relied upon to define supplementary rights, we will consider the rights which have been suggested for inclusion into the Bill of Rights for Northern Ireland.


II. RIGHTS TO OPPOSE TERRORISM AND ITS LEGACY (8)

The Government’s overall UK-wide approach to considering supplementary rights is undoubtedly right. Northern Ireland is an integral part of the United Kingdom and what is being decided for Northern Ireland may have a positive or negative impact on the rest of the UK. Any right that would not be solely relevant to Northern Ireland should therefore be considered at a national level. These rights, which were suggested by the NIHRC, have been properly left aside by the government and will be considered within the context of a Bill of Rights for the whole of the UK.

The relevance of the other rights suggested by the NIHRC should be assessed using as a compass the criteria referred to in Part One above and which were provided in the Belfast Agreement. Rights should meet the test of both criteria: reflecting the particular circumstances of Northern Ireland and the principles of mutual respect for the identity and ethos of both communities and of parity of esteem. Since the NIHRC did not carry out a proper analysis of these rights in relation to the criteria set in the Belfast Agreement it is now the responsibility of the Government to commit itself to and complete this important work.

We will analyse the 32 rights that the government considers comply with the criteria set out in the Belfast Agreement, dividing them into the five following broad categories: (A) rights relating to equality, representation and participation in public life, (B) rights relating to identity, culture and language, (C) rights relating to sectarianism and segregation, (D) rights relating to victims and the legacy of the conflict and (E) rights relating to criminal justice.


A. Rights relating to equality, representation and participation in public life

These rights cover (1) the right to equality and prohibition of discrimination and (2) democratic rights.

1. The right to equality and prohibition of discrimination (NIHRC 5, page 24 of the Consultation Paper)

There are already a number of rights and procedures in this domain that have been implemented and enforced in Northern Ireland legislation. An impartial analysis of past events and historical developments needs to be carried out and taken into account before deciding what particular rights need to be added. This should be corroborated by accurate evaluations in order to identify whether or not there have been genuine inequality issues in the past that need to be addressed in the Bill of Rights or through legislation.

The relevance of equality rights must be assessed using the test provided by the criteria given in the Belfast Agreement.

Equality should be considered within the context of the most particular circumstance of Northern Ireland society, i.e. terrorism and its effect on society. In a democratic society, a terrorist and/or a supporter of terrorism cannot claim the enjoyment of equal rights with law-abiding citizens in the areas of economic, social, political, cultural or civil life. Necessary and proportionate restrictions would have to be applied to a terrorist’s / supporter’s activities in order to prevent him / her from engaging in and committing acts of terrorism. This should be part of the necessary protective mechanisms that need to be enforced in Northern Ireland to protect the law-abiding people of Northern Ireland against terrorism and its resurgence.

The suggested proper approach to equality is that which is given in the European Convention on Human Rights and the International Covenant on Civil and Political Rights, both of which have introduced equality provisions that relate to all the rights enumerated in their legal instruments. A free-standing equality provision does not appear necessary in Northern Ireland for the following reasons:

- rigorous equality legislation has already been enforced since 1970 in areas for which it was deemed necessary, mainly employment, promotion of equality of opportunity between different individuals and groups, and equal pay legislation;
- the particular circumstance of terrorism excludes the necessity of this free-standing equality provision, which would have the adverse effect of rendering the fight against terrorism less efficient since such provision could be used by terrorists and their supporters to their advantage, thus undermining democracy and human rights.

The grounds on which discrimination in Northern Ireland is unlawful are provided in Article 14 of the European Convention, mentioned in Schedule 1 of the Human Rights Act 1998. They already include: “… sex, race, colour, language, religion, political or other opinion, national or social origin, association with national minority, property, birth or other status.” (9). The term ‘other status’ leaves the courts considerable scope for considering other grounds that could justify equal rights and treatment.

If new grounds preventing discrimination on the basis of identity, ethos and culture were deemed necessary, it should then be specified that they would exclude any direct or indirect reference to terrorist violence and any doctrine, idea or opinion that supports or promotes terrorism in any way. The public authorities’ duty to promote equality of opportunity could then be extended to cultural groups.

2. Democratic rights (NIHRC 6, page 32 of the Consultation Paper)

The relevance of these rights must be assessed by applying the test given in the Belfast Agreement. No right should be introduced that would encourage or facilitate the abuse of the democratic system by terrorists or terrorist supporters. Additional rights should also comply with the principles of mutual respect for the identity and ethos of both communities and for parity of esteem.

There are naturally legitimate and justified restrictions that need to be applied to participation in the conduct of public affairs, voting and to anybody wishing to stand for office.

Elections can be organized according to different systems in a democratic society, such as proportional representation. What is required is that elections take place regularly and be fair. There should be no requirement for one particular electoral system to be made compulsory by way of introduction into a Bill of Rights. The necessary flexibility required for the good functional working of democracy, which would allow for the adoption of a new electoral system, should be preserved for the future. The election mechanism should also ensure that terrorists are not able to be elected or represented within the democratic institutions of Northern Ireland.

There is no requirement for a unique form of government to be made compulsory, either at regional or local government level, by a specific provision in a Bill of Rights. Democracy can accommodate different systems of government, of which we have examples in Europe and further afield. However, inclusive, proportionate and equitable participation in government at regional or local level is a most unusual system of government that does not exist in any other democracy in Western Europe. It is most unusual because it guarantees minority parties the right to be in government and excludes voluntary coalitions between parties. Such a system has the adverse effect of perverting democracy because it prevents the existence of an executive and an opposition during the period of a legislature, which characterizes a healthy parliamentary system and fosters good governance.

The right to vote freely should be guaranteed, considering the risk that terrorism poses in Northern Ireland. At the beginning of the terrorist campaign, polling stations were targeted, preventing law-abiding citizens from exercising their democratic rights. This is a threat that some people may be confronted with as a result of the possible resurgence of violence in the future.

There already exist within the present legislation requirements for the membership of public bodies to be representative of society and there is no need for this matter to be included in the Bill of Rights, as it is being dealt with appropriately by way of legislation.


B. Rights relating to identity, culture and language

These rights cover (1) the right to identity and culture and (2) language rights.

1. The right to identity and culture (NIHRC 10, page 40 of the Consultation Paper)

The relevance of these rights should be assessed in relation to both criteria set out in the Belfast Agreement.

The major particular circumstance of Northern Ireland is constituted by the terrorist campaign, which has divided the community into two main sections, although proper consideration should be given to minority groups. Northern Ireland is an integral part of the UK and whatever way people wish to identity themselves, or whatever citizenship they wish to have, they must be seen as part of one and the same community, giving allegiance to the authorities of the land where the law properly requires it.

Rather than radicalizing the opposition, whether latent or perceived, between two communities, reference should be made to one community with respect for diversity within it.

Since the right to identify oneself and to hold the nationality of one’s choice is already recognized in the international agreement between the British and Irish governments, there is no imperative to mention it yet again in the Bill of Rights. Rather than crystallising divisions within Northern Ireland society, everything possible must be done to unite the people of Northern Ireland. This does not preclude the right for anybody to identify himself or herself as Irish or British and/or to hold British and/or Irish citizenship. Furthermore it must be noted that the United Kingdom has no right whatsoever to grant to anyone any other nationality than the British nationality.

There is no necessity to introduce yet more constraints on public authorities to respect the identity and ethos of both main sections of the community on the basis of equality of treatment. What is required is for all identities and ethos, given they are acceptable within a democratic society and do not support terrorism in any way, to be respected without discrimination. In order to introduce such a provision, the definition of identity and ethos would have to be given with sufficient precision.

Concerning the duties of public authorities to encourage a spirit of tolerance and dialogue, it is necessary that these initiatives be based on the right foundation, i.e. fundamental human rights principles.

The protection already in place for the oath is fully operative and satisfactory. Any new provision in the Bill of Rights in this regard would be superfluous.

2. Language rights (NIHRC 11, page 48 of the Consultation Paper)

The development of the Ulster Scots and Irish languages should continue to be ensured by way of legislation since equality for different cultures, to the exclusion of violent cultures, would be provided for in the Bill of Rights.


C. Rights relating to sectarianism and segregation

These rights cover (1) the right to freedom from violence, exploitation and harassment and (2) the right to accommodation.

1. The right to freedom from violence, exploitation and harassment (NIHRC 9, page 51 of the Consultation Paper)

The right to be free from violence, exploitation and harassment is particularly relevant and meets the test of responding to the particular circumstances of Northern Ireland, while also corresponding to the principles of mutual respect for the identity and ethos of both sections of the community and for parity of esteem.

This right should impose a duty on public authorities and on private, legal and natural persons to abstain from sectarianism and segregation, particularly sectarian violence. There should also be a positive duty on the same to do all in their power to eradicate sectarian violence and segregation within the community. Of course, there would be a greater responsibility on certain public authorities, such as the PSNI, to fulfill these obligations.

2. The right to accommodation (NIHRC 16, page 55 of the Consultation Paper)

The right not to be harassed or evicted is relevant because it meets the test set in the Belfast Agreement. The consequences of the terrorist campaign have been to segregate the community so as to create areas that are exclusively populated by one particular section or other of the community.

It should primarily be the duty of the public authorities with competence in this area to ensure that this right can be effectively enjoyed by all in Northern Ireland.


D. Rights relating to victims and the legacy of the ‘conflict’

These cover (1) the right to life, (2) the rights of victims and (3) children’s rights

1. The right to life (NIHRC 1, page 58 of the Consultation Paper)

The right to have all deaths related to the terrorist campaign investigated is relevant and meets the test set by the Belfast Agreement. However, the fact that a person was killed during the terrorist campaign does not automatically mean that there was a violation of the right to life, contrary to the provision proposed by the NIHRC (10). As the European Court of Human Rights case law makes clear in a number of cases where acknowledged terrorists were killed, there was no violation of the right to life by the British security forces (11). In each one of these cases, a thorough investigation was carried out and an inquest held.

In all cases of deprivation of life by terrorist organisations, which correspond to the particular circumstances of Northern Ireland, there should also be the right to have a full re-investigation carried out using all the most up-to-date technologies and procedures in order to find those responsible for committing such heinous crimes.

The right to benefit from an investigation should always allow the possibility of prosecuting those suspected of being responsible, when there is sufficient evidence.

Although £38,000,000 have been provided and may appear a lot of money to investigate over 2,500 cases, it should be remembered that the cost of the Bloody Friday investigation alone has amounted to £200,000,000 to this day. If any satisfactory and meaningful inquiry is to be carried out, the appropriate level of funding should be made available.

2. The rights of victims (NIHRC 12, page 60 of the Consultation Paper)

Ensuring rights for victims of the terrorist campaign supposes first that a proper definition of the term ‘victim’ be provided. The approach chosen by the NIHRC and the Government is most confusing, given the definition of ‘victim’ provided in the Victims and Survivors’ (Northern Ireland) Order 2006, which equates victims of terrorist attacks with the perpetrators of those attacks. Victims and survivors are defined as “someone who is or has been physically or psychologically injured as a result of or in consequence of a conflict-related incident” as well as “someone who has been bereaved as a result of or in consequence of a conflict-related incident”. A conflict-related incident according to the Order means “a violent incident occurring in or after 1966 in connection with the affairs of Northern Ireland”.

The problem raised by this definition has already been brought to the attention of the European Commission. No state within the European Union should recognize a terrorist as a victim on a par with the innocent victims of their atrocities.

The matter that needs to be urgently addressed is to provide a proper definition of a victim of terrorism without making reference to the word ‘conflict’, which has been used very conveniently by terrorist organizations in an attempt to justify their illegal activities, thus giving them a veneer of respectability. Such a definition reflects the wilful ignorance of the problem of terrorism in Northern Ireland and degrades the sacrifice of the security forces and the memory of innocent civilian victims.

As long as a proper definition of victims of terrorism is not provided in UK legislation, no rights for victims of the ‘conflict’ should be recognized in any Bill of Rights. Consequently, the work undertaken by the Victims and Survivors Forum and OFMDFM should be entirely reviewed in the light of a proper definition of ‘victims of terrorism’. To that end the following definition of a victim of terrorism is suggested:

“A victim of terrorism is:

1. A natural person who has suffered physically, psychologically or economically as the result of a terrorist act in violation of criminal law and human rights law, and who was not directly or indirectly engaged in the commission of terrorist act or in any support of terrorist act;

A dependant and/or a close relative of such a natural person;

A person who has intervened to assist or to prevent such a natural person from being victimised;

2. A dependant and/or a close relative of a natural person who died as a direct result of a terrorist act and who was never engaged in any form of terrorist activity.

(Provided that any person who supports or countenances terrorism is not a victim of terrorism for the purpose of this definition)”

This definition, which requires further consideration by the government, would have to be associated with the necessary definition of terrorism that applies to Northern Ireland (12).

3. Children’s rights (NIHRC 20, page 62 of the Consultation Paper)

This provision would meet the test set by the Belfast Agreement in order to prevent children being used by paramilitary groups in the context of on-going terrorist activities. It is a fact that children have been used and are still being used by terrorist groups for intelligence-gathering purposes and also in some circumstances to carry out illegal activities at their behest. As far as abuse by public authorities is concerned the rights of children are already satisfactorily protected and for this reason further mention in the Bill of Rights is not required. However, there must also be safeguards against any form of abuse by paramilitary groups in order to protect children. Public authorities should therefore be empowered to use all necessary means to prevent children from becoming involved in terrorist organisations in any way.


E. Rights relating to criminal justice

These rights cover (1) the right to liberty and security and (2) the right to a fair trial.

1. Rights to liberty and security (NIHRC 2, page 65 of the Consultation Paper)

Since the beginning of the terrorist campaign 40 years ago, the criminal justice system has been reviewed regularly and a number of legal reforms have been introduced. All the required and proportionate safeguards have already been put in place in United Kingdom legislation and currently apply to Northern Ireland in accordance with fundamental principles. There are no more major specific principles that need to be introduced in a provision of the Bill of Rights and all necessary adjustments can be satisfactorily met by way of legislation.

The following rights are all already provided for in the legislation for Northern Ireland and do not need to be introduced in the Bill of Rights:
- The right to family visits while in police custody;
- The right to have questioning aurally and visually recorded;
- The right to have public authorities take all appropriate measures to reintegrate into society those in detention or alternative care.

2. Right to a fair trial and no punishment without law (NIHRC 3, page 75 of the Consultation Paper)

The Consultation Paper concedes that paramilitary organisations and such like, for example drug cartels, gang warfare, etc. (there should also be included possible other groups that may develop in the future) have by no means disappeared (13). This explains why there cannot be an unqualified right to jury trial. Flexibility should be given to the public authorities to decide which way people should be tried in particular circumstances, since this will not affect the fundamental principle of the right to a fair trial enshrined in the European Convention on Human Rights.

All adequate support and protection for witnesses, jurors, judges and lawyers are already provided for by way of complementary policy and administrative schemes and there is no need to add any provisions in this respect into the Bill of Rights for Northern Ireland.

III. THE IMPLEMENTATION AND ENFORCEMENT OF THE BILL OF RIGHTS FOR NORTHERN IRELAND (Chapter 10 of the Consultation Paper)

In relation to implementation, (A) the content of the preamble must be considered, as well as (B) the limitations imposed on rights, (C) prohibition of abuse of rights, (D) the process for derogation, (E) the process of application, (F) the standing for initiating legal proceedings on the basis of human rights and (G) the enforcement of the Bill of Rights.


A. Preamble

The Bill of Rights should have a preamble providing the purpose and objective of the Bill of Rights, indicating that the on-going terrorist threat has been and remains the major circumstance in Northern Ireland. The preamble should also provide the foundational principles on which it is built within the context of a democratic society.


B. Limitations

The limitations imposed on the new rights stated in the Bill of Rights should be equivalent to that mentioned in the European Convention on Human Rights for qualified rights.


C. Prohibition of abuse of rights

As a result of human rights being used by terrorist organizations not only to undermine the state authorities but also as a means of creating divisions within society (e.g. segregating society into two main communities to claim specific rights to the benefit of one section of the community against the other), there should be fresh emphasis put on the prohibition of the abuse of rights, which is already provided for in Article 17 of the European Convention on Human Rights.


D. Derogation

The derogation suggested by the NIHRC goes against the particular circumstances of Northern Ireland that has been identified as terrorism. In a province where terrorism has had such a severe impact, it is most unwise to suggest provisions that would make the task of the authorities even more difficult in the case of a renewed, sustained terrorist campaign. The provisions of the Human Rights Act 1998 should be applied to Northern Ireland as well as to the rest of the United Kingdom so that this issue continues to be dealt with and monitored consistently at national level.


E. Application

Public authorities can continue to be defined as in the Human Rights Act 1998. The outcome-based approach to assessing the satisfactory application of the rights enshrined in the Bill of Rights should be favoured, with the exception of the rights which have a procedural content such as provided for in Articles 5 and 6 or implied by Article 8. For these latter rights the decision-making process as well as the decision itself must be assessed.


F. Standing

The right for victims to initiate legal proceedings must be stated and reinforced so as to encourage victims of terrorism to fight for justice to be done.

The NIHRC and the Equality and Human Rights Commission in Great Britain have already been given powers to initiate procedures and this is largely sufficient. If other organisations deserve to be granted such a right, this can be provided for in legislation. There is no need for a clause in the Bill of Rights to that effect.

It is unfortunate to have to mention that the NIHRC has given an example of misguided decision-making by supporting the Holy Cross case, which appears to be more in line with a certain political agenda than with the purpose of acting efficiently and effectively for the defence of the human rights of all the law-abiding citizens of Northern Ireland. In an unusual comment, Lord Hoffmann stated at the beginning of the House of Lords judgment rendered on 12 November 2008 that the oral submissions by the NIHRC only repeated the points already quite adequately argued by Counsel for the Appellant, and he expressed his wish that in future interveners in legal proceedings, whether statutory bodies or non-governmental organisations, would not take up the time of the House unnecessarily in such a way.

An organization entrusted with such power should therefore recognise and assume its responsibility to ensure that this power is used wisely, with the sole purpose of assisting the Judiciary to come to the right decision in difficult cases.


G. Enforcement

The interpretation should continue to be made according to the principles that are in operation today.

The enforcement of the Bill of Rights should be carried out through the Northern Ireland Judiciary, with no specialized Human Rights Court, which would involve unnecessary and unjustified investment at the tax payer’s expense. It should be noted that the NIHRC also supports this view.

The remedies to be applied should be the same as that put in place in the Human Rights Act 1998.


IV. COMMENT ON THE EQUALITY AND IMPACT CONSIDERATION (Chapter 11 of the Consultation Paper)

The duty of the Northern Ireland Office is to “have due regard to the need to promote equality of opportunity” between a number of groups specified in Section 75 of the Northern Ireland Act 1998. The NIO must also “have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group.”

If the major circumstance of Northern Ireland, constituted by terrorism, were to be ignored, the rights enshrined in the Bill of Rights would have the potential of giving terrorists and their supporters new means of undermining democracy and the rights of law-abiding people. Such an approach with its corresponding rights would be an affront to law-abiding people and would prevent the promotion of good relations between persons of different groups.

On the contrary, if the major and most particular circumstance of Northern Ireland is acknowledged, the rights included in the Bill of Rights will provide an efficient remedy to deal with terrorism and its legacy. Such an approach with its corresponding rights will unite the community as a whole and enable the promotion of good relations between persons of different groups.

A Bill of Rights for Northern Ireland that ignores the factual context of Northern Ireland and terrorism as the most particular circumstance of Northern Ireland would lead to the creation of rights that would undoubtedly be an affront to many law-abiding citizens, especially those holding certain religious beliefs and political opinions.


V. RECOMMENDATIONS FOR A CHARTER OF RIGHTS FOR NORTHERN IRELAND (14)

In view of the above and on the basis of the analysis carried out on the Consultation Paper, the following recommendations are submitted to the British Government:

1. The Bill of Rights for Northern Ireland should only state fundamental principles and should not deal with social policies that would be better addressed by the representative institution of the land.

2. The criteria provided in the 1998 Belfast Agreement should be defined and used as a basis for identifying supplementary rights to those in the European Convention on Human Rights.

3. The major particular circumstance of Northern Ireland, which is terrorism, should be acknowledged and defined in the preamble of the Bill of Rights.

4. The principle of mutual respect for the identity and ethos of both communities to the exclusion of identities springing from violent cultures should be stated and defined in the Bill of Rights.

5. The principle of parity of esteem for different cultures, ideas and opinions to the exclusion of those that eulogise and justify terrorism, should be stated and defined in the Bill of Rights.

6. Only rights that promote and protect democracy and human rights against terrorism should be included in the Bill of Rights.

7. No right that has the potential to be used by terrorists and their supporters to undermine fundamental human rights, democracy and the State authorities should be introduced in the Bill of Rights.

8. The Bill of Rights must contain a proper definition of ‘victim of terrorism’ that would only apply to genuine victims of terrorism.

9. The Bill of Rights should proclaim the required rights that would only apply to genuine victims of terrorism.

10. The rights supplementary to those in the European Convention on Human Rights which should be included in the Bill of Rights should be as follows:

1. The right to equality for cultures to the exclusion of violent cultures;
2. The right to equality of esteem to the exclusion of cultures, ideas and opinions that promote violence;
3. The right to freedom to exercise the democratic right to vote;
4. The right to freedom to stand to be elected to the exclusion of those who support terrorism;
5. The right to be free from violence, exploitation and violence;
6. The right to accommodation;
7. The right to have all deaths that occurred during the terrorist campaign investigated;
8. The right for children to be protected against paramilitary involvement.

11. Limitations imposed on qualified rights should be equivalent to those mentioned in the Human Rights Act 1998.

12. The prohibition of abuse of rights already mentioned in Article 17 of the European Convention on Human Rights should be reinforced in the Bill of Rights.

13. There should not be a specific derogation mechanism that would apply solely to Northern Ireland independently of that which applies to the whole of the United Kingdom.

14. There should not be any additional rights given to organisations to initiate proceedings.

15. The Bill of Rights should be enforced through the existing Northern Ireland courts.

It is believed that these recommendations, if implemented, would allow real progress to be made in the promotion of democracy and human rights, to the benefit of the law-abiding people of Northern Ireland.
_____________________________________

Endnotes:
(1) “Making a Bill of Rights for Northern Ireland, A Consultation by the Northern Ireland Human Rights Commission” September 2001; “Progressing a Bill of Rights for Northern Ireland, An Update”, April 2004; “A Bill of Rights for Northern Ireland, Advice to the Secretary of State for Northern Ireland”, 10 December 2008.
(2) “Bill of Rights Forum, Final Report, Recommendations to the Northern Ireland Human Rights Commission on a Bill of Rights for Northern Ireland”, 31 March 2008.
(3) The Belfast Agreement, 1998, “Rights, safeguards and equality of opportunity”, pages 16 and 17, para. 4.
(4) Letter from Dr Marjorie Mowlam, Secretary of State, to the Northern Ireland Human Rights Commission, March 1999.
(5) The Belfast Agreement, 1998, “Rights, safeguards and equality of opportunity”, pages 16 and 17, para. 4.
(6) See Annexe 1: “Proposed definition of terrorism as applied to Northern Ireland”, Project MONNET supported by the European Commission, 2009.
(7) Chapter 1, “Introduction”, page 8, para. 1.5, emphasis ours.
(8) See annexe 2: Table of rights to promote democracy and oppose terrorism.
(9) Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Prohibition of discrimination.
(10) Chapter 8, “Rights relating to victims and the legacy of the conflict, NIHRC1: The right to life”, page 58, para. 8.1.
(11) ECtHR, Third Section, Judgment Kelly and Others v. the United Kingdom, 4 May 2001 (Application no. 30054/96); ECtHR, Third Section, Judgment McKerr and Others v. the United Kingdom, 4 May 2001 (Application no. 28883/95); ECtHR, Judgment Hugh Jordan v. the United Kingdom, 4 May 2001 (Application no. 24746/94); ECtHR, Judgment Shanagan v. the United Kingdom, 4 May 2001 (Application no. 37715/97); ECtHR, Judgment McShane v. the United Kingdom, 28 May 2002 (Application no. 43290/98).
(12) See Annexe 1: “Proposed definition of terrorism as applied to Northern Ireland”, Project MONNET supported by the European Commission, 2009.
(13) Chapter 9: “Rights relating to criminal justice”, page 77, para. 9.30.
(14) See Annexe 3: “Charter of Rights for Northern Ireland”.
___________________________________

ANNEXE 1

PROPOSED DEFINITION OF TERRORISM AS APPLIED TO NORTHERN IRELAND
(A part of Project MONNET (Mobilising Opposition Networks to Nationalistic European Terrorism), supported by the European Commission, 2009)

It is a worthwhile exercise to try to define terrorism in relation to Northern Ireland, especially as it is the most particular circumstance that has affected the Province over the past thirty-nine years. We shall consider the criteria for a definition of terrorism in (A) international law and (B) domestic law before stating the (C) proposed definition of terrorism in relation to Northern Ireland.

A. THE CRITERIA FOR A DEFINITION OF TERRORISM IN INTERNATIONAL LAW

The first definition of terrorism in international law is to be found in the Convention for the Prevention and Punishment of Terrorism, issued in 1937. Terrorism is defined in this convention as: “All criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public” (Article 2 (1)). In this early definition the emphasis was put on the fact that terrorism is directed against a State, but without the notion of democracy being under attack. This convention was never enforced and fell into oblivion as the Second World War was about to break out. Let us have a look at the criteria for a definition of terrorism at (1) United Nations level and (2) the European level.

1. The criteria for a definition of terrorism at United Nations level

It took forty-five years after the Second World War before a new definition was suggested in a non-binding document, the Declaration on Measures to eliminate International Terrorism, approved by the United Nations General Assembly on 11 December 1995. In this document terrorism is defined as: “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes”. This definition has been repeated in other General Assembly resolutions. All of these documents clearly state that terrorism cannot be given any justification, such as political, philosophical, ideological or religious. The Security Council reinforces this approach in Resolution 1624, which condemns “in the strongest terms all acts of terrorism irrespective of their motivation, whenever and by whomever committed”.

The United Nations General Assembly has recently taken a step further in its resolution entitled Human rights and terrorism, dated 1st September 2005, as it defines terrorism “in all its forms and manifestations as activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening the territorial integrity and security of States, destabilizing legitimately constituted Governments, undermining pluralistic civil society and having adverse consequences for the economic and social development of States”. Terrorism can therefore be described as an attack on democracy, which is the very framework within which human rights and fundamental freedoms can best be protected. Terrorist activity can either be an act that is an offence or the threat of committing such an offence, as stated in the International Convention for the Suppression of Acts of Nuclear Terrorism, adopted on 13 April 2005.

In the Convention for the Suppression of Financing of Terrorism issued on 9 December 1999, the purpose of terrorism is defined as intimidating a population or compelling a government to do or to abstain from doing an act. The idea that terrorism is used to compel a person, an organisation or a State is also mentioned in the International Convention for the Suppression of Acts of Nuclear Terrorism adopted on 13 April 2005, which defines as a terrorist offence the unlawful and intentional use of radioactive material or a device “with the intent to compel a natural or legal person, an international organization or a State to do or refrain from doing an act”.

As a result of 9/11 the United Nations created an Ad Hoc Committee on terrorism. It has provided a general definition of terrorism in the Draft Comprehensive Convention against International Terrorism. In Article 2 of this document the purpose of any act of terrorism is defined as: “to intimidate a population, or to compel a Government or an international organisation to do or abstain from doing any act”. What should be noted in these most recent documents is the element of intimidation of the population and/or of compelling a Government or a person to do or to abstain from doing.

It results from these definitions that terrorism can never be justified, whatever the circumstances; that it can manifest itself through an act of terror, or the threat of an act of terror; that it aims at compelling a government and intimidating the population; that it aims at the destruction of democracy; and that terrorism is excluded from armed conflicts, which are regulated by International Humanitarian Law that determines the rules to be applied in time of war to regular forces as well as to national liberation movements.

2. The criteria for a definition of terrorism at the European level

The Council of Europe Convention of 27 January 1977 on the Suppression of Terrorism declares that none of the terrorist offences it describes “shall be regarded as a political offence or as an offence connected with a political offence or as an offence inspired by political motives”. This is in line with the definition at United Nations level and reinforces the idea that no terrorist activity can be declared legitimate for any reason.

The Council of the European Union has adopted the Council Framework Decision of 13 June 2002 on Combating Terrorism. This document determines the common positions of the member states in relation to terrorism and the policy that should be implemented by member states, although it has no legal binding force. The Decision reaffirms that “terrorism constitutes a threat to democracy, to the free exercise of human rights and to economic and social development”. Besides the aims of intimidation of the population and compelling of a Government that are also mentioned in the most recent United Nations conventions, the Council has added the aim of destabilising or destroying the framework of democracy in a country as well as its economic and social structures, which are also referred to in the United Nations General Assembly Resolution of 1st September 2005.

The Decision states that penalties and sanctions should be provided for natural and legal persons who have committed terrorist offences such as attacks upon a person’s life, physical integrity, kidnapping and hostage taking, causing extensive destruction to a Government or a public facility, seizure of aircraft, manufacture and possession of weapons, release of dangerous substances, disrupting the supply of water, or the threat of committing such acts.

In summary, the criteria that can be drawn from these international documents at both UN and European levels in order to define terrorism are as follows:

1. An author that can be a natural or a legal person;
2. A violent act or the threat of committing a violent act;
3. The aim of intimidating a population; or
4. The aim of compelling a Government or an international organisation to perform or abstain from performing any act; or
5. The aim of seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a State or of an international organisation.

B. THE CRITERIA FOR A DEFINITION OF TERRORISM IN UK LEGISLATION

As a result of Lord Lloyd’s Review, which considered the need for specific counter-terrorism legislation in the United Kingdom, the Terrorism Act 2000 was enacted. In its introduction Part 1 Section 1, terrorism is defined as an act of serious violence, or the threat of committing such an act of violence with the aim of influencing the Government or intimidating the public or a section of the public, and with the purpose of advancing a political, religious or ideological cause.

This definition does not include the aim of seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a State as is stated in the European Union Council Framework Decision. However, it declares the purpose of terrorism, which is to advance a political, religious or ideological cause, whereas this is not mentioned in international law.

C. THE PROPOSED DEFINITION OF TERRORISM IN RELATION TO NORTHERN IRELAND

The definitions of terrorism given in international documents and in UK legislation do help in identifying the criteria for providing a definition of what terrorism is in Northern Ireland, taking into account its particular circumstances. Some of the elements if not all of those already identified in international and national law could be listed as part of the definition of terrorism in relation to Northern Ireland. However, due to the fact that representatives of terrorist-related organisations have already gained access to ministerial posts in the Executive of Northern Ireland, the definitions provided in the international documents and domestic law do not fully encompass the impact of terrorism on democracy, human rights and fundamental freedoms in Northern Ireland. Other elements need to be considered to reflect what terrorism really is in Northern Ireland.

The first phase of terrorist activity in Northern Ireland, i.e. that carried out mainly by the IRA, could be described as the perpetration of very serious acts of violence chiefly directed against individuals representing the State authorities and property, as well as against the population at large. Since the IRA cease-fire in 1994 and the approbation of the Belfast Agreement, the level of serious acts of violence has decreased but the threat of violence still exists, since the capacity of the IRA to carry out major acts of terrorism has not diminished. The IRA has moved from acts of serious violence to the threat of committing such acts, reserving the possibility of returning to violence at a later date if necessary in order to achieve its political aims.

By carrying out a campaign of violence the IRA was pursuing the political aim of bringing Northern Ireland under the sovereignty of the Irish Republic. As a result, violence or the threat of violence have been used to destabilise and destroy the democratic institutions of Northern Ireland as well as to terrorise its population into submission in order to succeed in changing the Constitution of Northern Ireland and its legislation, to enable IRA/Sinn Fein to further their political aims.

By gaining access to the Executive and the Assembly, terrorist-related politicians have succeeded in controlling the political process that will deliver their political objective. As long as the threat of violence is sufficient to continue to obtain complementary constitutional and legislative changes (such as the devolution of Policing and Justice), the use of full-scale violence is not necessary. However, if ever the flow of concessions was to stop, the IRA would very probably revert to violence.

It is generally accepted that terrorism can be described as the enemy of democracy and a threat to the stability of democratic institutions. It is an attack upon the State and an attack upon democracy, human rights and fundamental freedoms. However, terrorism does not appear to have been envisaged as an enemy that infiltrates the democratic institutions of a State in order to destroy them. By allowing terrorist-related organisations to take part in the representative and governing institutions of Northern Ireland, the British Government has given them the means of destroying democracy in Northern Ireland, since they can operate within the democratic system. Hence, the purpose of terrorism is not only to compel the Government of a State to perform an act, its ultimate purpose is to subvert the democratic institutions of the State by taking over its governance in order to be able to take the decisions that will lead to the fulfilment of their political aims.

CONCLUSION:

In view of the definitions provided in international and domestic law and considering the development of terrorism in Northern Ireland, the criteria for a proposed definition of terrorism in relation to Northern Ireland could be summarized as follows:

1. An author that can be a natural or a legal person;

2. An act of violence and/or the threat of violence (that can be directed against any person or property, either private or public, whether representing the United Kingdom authorities or not);

3. The aim of seriously destabilising and/or destroying the constitutional, economic or social structures of Northern Ireland;

4. The aim of compelling the Government of the United Kingdom to change the constitution of Northern Ireland and key aspects of secondary legislation;

5. The aim of terrorising the population of Northern Ireland into accepting the constitutional and secondary legislation changes;

6. The aim of gaining access to the democratic institutions of Northern Ireland, particularly the legislative and executive bodies;

7. The purpose of achieving the ultimate political objective by exercising legislative and executive powers.
___________________________________

ANNEXE 3

CHARTER OF RIGHTS FOR NORTHERN IRELAND

A Charter of Rights for Northern Ireland must be built on the sure following foundation:

1. The Bill of Rights for Northern Ireland should only state fundamental principles and should not deal with social policies that would be better addressed by the representative institution of the land.

2. The criteria provided in the 1998 Belfast Agreement should be defined and used as a basis for identifying supplementary rights to those in the European Convention on Human Rights.

3. The major particular circumstance of Northern Ireland, which is terrorism, should be acknowledged and defined in the preamble of the Bill of Rights.

4. The principle of mutual respect for the identity and ethos of both communities to the exclusion of identities springing from violent cultures should be stated and defined in the Bill of Rights.

5. The principle of parity of esteem for different cultures, ideas and opinions to the exclusion of those that eulogise and justify terrorism, should be stated and defined in the Bill of Rights.

6. Only rights that promote and protect democracy and human rights against terrorism should be included in the Bill of Rights.

7. No right that has the potential to be used by terrorists and their supporters to undermine fundamental human rights, democracy and the State authorities should be introduced in the Bill of Rights.

8. The Bill of Rights must contain a proper definition of ‘victim of terrorism’ that would only apply to genuine victims of terrorism.

9. The Bill of Rights should proclaim the required rights that would only apply to genuine victims of terrorism.

10. The rights supplementary to those in the European Convention on Human Rights which should be included in the Bill of Rights should be as follows:

1. The right to equality for cultures to the exclusion of violent cultures;
2. The right to equality of esteem to the exclusion of cultures, ideas and opinions that promote violence;
3. The right to freedom to exercise the democratic right to vote;
4. The right to freedom to stand to be elected to the exclusion of those who support terrorism;
5. The right to be free from violence, exploitation and violence;
6. The right to accommodation;
7. The right to have all deaths that occurred during the terrorist campaign investigated;
8. The right for children to be protected against paramilitary involvement.

11. Limitations imposed on qualified rights should be equivalent to those mentioned in the Human Rights Act 1998.

12. The prohibition of abuse of rights already mentioned in Article 17 of the European Convention on Human Rights should be reinforced in the Bill of Rights.

13. There should not be a specific derogation mechanism that would apply solely to Northern Ireland independently of that which applies to the whole of the United Kingdom.

14. There should not be any additional rights given to organisations to initiate proceedings.

15. The Bill of Rights should be enforced through the existing Northern Ireland courts.
___________________________________

PO Box 163
Craigavon
Northern Ireland
United Kingdom
BT65 9AH
Tel: 07759212861
Fax: + 44 (0) 28 3834 7221
e-mail:info@ulsterhumanrightswatch.co.uk