19/02/11

This submission is produced in response to the Consultation Paper on the Police (Northern Ireland) Act 2000 review of temporary provisions produced by the Rt. Hon. Owen Patterson MP, Secretary of State for Northern Ireland. Respondents were asked to answer two questions:

· What is your view on the use of the temporary provisions?
· What is your view on the Government’s proposal not to renew the temporary provisions?

The Ulster Human Rights Watch will answer both these questions by considering (I) the compliance of the Council Directive 2000/78/EC (in its particular provisions for Northern Ireland) with the principles of the European Union; (II) the compliance of the temporary provisions of the Police (Northern Ireland) Act 2000 with the principles of the European Union, the Guidelines of the Council of Europe and the European Convention on Human Rights; and (III) the 50/50 recruitment legislation’s unjustified discrimination against non-Catholic applicants in breach of section 75 of the Northern Ireland Act 1998; which lead to (IV) conclusions and (V) recommendations in support of the proposal made by the Secretary of State not to renew the temporary provisions.


I. The compliance of the Council Directive 2000/78/EC (in its particular provisions for Northern Ireland) with the principles of the European Union

In order to introduce particular provisions into the Police (Northern Ireland) Act 2000 and implement the 50/50 recruitment arrangements for trainee constables and police support staff, the British Government had to obtain from the Council of the European Union an exemption from the Council Directive 2000/78/EC of 27th November 2000, which established a “general framework for equal treatment in employment and occupation”.

The Directive 2000/78/EC aims at prohibiting any direct or indirect discrimination based on religion or belief in the field of employment and occupation throughout the community in order to put into effect in the “Member States the principle of equal treatment” (Article 1). The principle is that equal treatment should be implemented in relation to employment and occupation in all Member States including the United Kingdom.

Discrimination based on religion or belief may undermine the achievement of the objectives of the EC Treaty, such as the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons as stated in clause 11 of the Directive.

Social cohesion and solidarity need to be promoted in Northern Ireland as everywhere else in the European Union, through the prohibition of discrimination in the field of employment and occupation in the police service of Northern Ireland. There is no genuine reason for the situation to be different for the PSNI. Indeed, it has always been the principle that recruitment of trainee constables in Northern Ireland should be based on merit, regardless of the religious background of candidates. Before the Police (Northern Ireland) Act 2000 was voted, the Royal Ulster Constabulary did not ask candidates to state their religion. There was no discrimination on the basis of religion or belief in the police force of Northern Ireland.

The British Government requested an exemption to allow discrimination on the grounds of religion in order to increase the number of Catholic applicants. Article 15 paragraph 1 of the Directive reads:

“In order to tackle the under-representation of one of the major religious communities in the police service of Northern Ireland, differences in treatment regarding recruitment into that service, including its support staff, shall not constitute discrimination insofar as those differences in treatment are expressly authorized by national legislation.”

However what needed to be analysed was the cause of the under-application of Catholics, both men and women, to the police force in order to properly remedy this situation.

It appears that the number of Catholic applicants has been linked over the past thirty-four years to IRA terrorist activities. It can be noted that immediately after the IRA “ceasefire” in 1994, the percentage of Catholic applicants rose from 12% to 21%, but as soon as the “ceasefire” was over, this number fell back. In 1998, when the IRA “ceasefire” was reinforced, the level of applicants rose again to 20%. The main cause of under-representation in the police force of Northern Ireland lay with the intimidation and threats exercised by the IRA on the Catholic people of Northern Ireland. Those who lodge an application to the police service in defiance of the IRA terrorist threat did so at the risk of endangering their lives. Therefore it should have been acknowledged that the major cause for limited applications from Catholics was the terror exercised by the IRA on the Catholic population.

Unfortunately, the real cause for Catholic under-representation in the police force of Northern Ireland has never been clearly identified and acknowledged by the Council of the European Union. The problem to be addressed was not that of “peace and reconciliation” as stated in clause 34 of the Directive but that of a democratic state and its police force being undermined by terrorism.

Although IRA terrorist threats against Catholics who would want to join the PSNI have diminished in intensity over the past number of years, the IRA and several ‘dissidents groups’ still retain the means of controlling the Catholic population. If ever this control is increased, for whatever reason, the level of Catholic applicants to the PSNI will regress significantly.

The most serious threat to democracy, human rights and fundamental freedoms in Northern Ireland stems from terrorism, as democracy cannot co-exist with it. The aim pursued by terrorist organisations in Northern Ireland, and particularly the IRA, has been to subvert democracy in order to make political gains. In providing an exemption, which mainly gave satisfaction to the demands of terrorist organisations but did not address the terrorist threat which prevented Roman Catholics from joining the police, the Council of the European Union made a decision which contradicts the very principles of democracy and respect for human rights and fundamental freedoms on which the European Union is founded, as stated in clause 1 of the Directive.

There appears to be a fundamental incompatibility between the principles on which the European Union is based and the indirect support for terrorism authorised by the exemption included in the Council Directive 2000/78/EC. This problem should have been addressed by the institutions of the European Union, and in particular the Council of the European Union. Rather than granting a derogation to the British Government in order to promote discriminatory legislation to be applied to the recruitment of trainee constables to the Police Service of Northern Ireland, including its support staff, the Council of the European Union should have conformed to the basic principles of the European Union. It is believed that if the Council of the European Union had been aware of the reality of the situation in Northern Ireland, it is highly likely that these particular provisions may never have been incorporated in the Directive 2000/78/EC.


II. The compliance of the temporary provisions of the Police (Northern Ireland) Act 2000 with the principles of the European Union, the Guidelines of the Council of Europe and the European Convention on Human Rights

The exemption incorporated in the Council Directive 2000/78/EC, which is itself in breach of the basic principles of the European Union as already indicated, should not have been used by the British Government to justify the enforcement of legislation which was in breach of the same principles.

The British Government should also have abstained from implementing legislation which is in breach of the Guidelines on Human Rights and the Fight against Terrorism adopted by the Committee of Ministers of the Council of Europe on 11th July 2002. In the Preface of this document, Mr Walter Schwimmer, Secretary General of the Council of Europe, mentions that the Committee of Ministers considered it of the utmost importance that these guidelines be known and applied by all authorities responsible for the fight against terrorism in the Member States of the Council of Europe.

In the preamble of these Guidelines, the Committee of Ministers states:

“that terrorism seriously jeopardizes human rights, threatens democracy, and aims notably to destabilise legitimately constituted governments and to undermine pluralistic civil society”;

and it reaffirms

“the imperative duty of States to protect their populations against possible terrorist acts”.

Article 1 of the Guidelines on Human Rights and the Fight against Terrorism, concerning the States’ obligation to protect everyone against terrorism, reads:

“States are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts, especially the right to life. This positive obligation fully justifies States’ fight against terrorism in accordance with the present guidelines.”

On assessing the situation in Northern Ireland it should have been stated that since the implementation of the 1998 Belfast Agreement and the Police (Northern Ireland) Act 2000, terrorism has remained a major threat. The worst terrorist atrocity over the past thirty-four years took place in August 1998, when a bomb exploded in Omagh, killing 29 people. The level of punishment beatings and terrorist-related crimes continued unabated. When the temporary provisions were introduced, the IRA was still the most dangerous, fully-armed terrorist organisation in Western Europe, capable of causing attacks and destruction on an unprecedented scale.

Yet in the meantime, the numbers of police constables in the PSNI have been reduced from 13,000 in 1999 to 6,000 in 2003. The 50/50 recruitment system did not permit the necessary intake, and the number of admissions should not have been limited on the grounds of religion. Moreover, the Patten Report recommended that young people should not be automatically disqualified from applying to the PSNI because of “relatively minor criminal offences”. It further indicated that there must be “no predisposition against candidates from republican backgrounds” (page 89 of the Report of the Independent Commission on Policing for Northern Ireland). This suggested that terrorist sympathisers may well have been welcomed into the police force. Rather than protecting the population of Northern Ireland in compliance with its imperative duties, as reaffirmed by the Committee of Ministers of the Council of Europe in the Guidelines on Human Rights and the Fight against Terrorism, the British Government has, particularly by way of the 50/50 recruitment legislation, weakened the protection provided for the people of Northern Ireland, thus exposing them to immediate danger.

The European Court of Human Rights has also stated that the first sentence of Article 2 paragraph 1 of the ECHR enjoins the State to “take appropriate steps to safeguard the lives of those within its jurisdiction” (LCB v. UK, 9th June 1998, Reports of Judgements and Decisions, 1998 – III, page 1403 paragraph 36). It was and remains the imperative duty of the British Government to take all necessary measures to ensure that the population of Northern Ireland was and will be duly protected against the threat of terrorism.


III. The 50/50 recruitment legislation’s unjustified discrimination against non-Catholic applicants in breach of section 75 of the Northern Ireland Act 1998

The 50/50 legislation constitutes unjustified discrimination against non-Catholic applicants on the grounds of religion. As already mentioned, the reason for this legislation, presented as “the need to promote peace and reconciliation”, was inaccurate.

Within the overwhelming majority of the people of Northern Ireland, who respect the rule of democracy whatever their religion, Catholic under-representation in the police force was not related to a community problem. Under-representation was the result of terrorist threats against Catholics, which prevented them from applying to and joining the PSNI.

The 50/50 legislation has limited the number of trainee constable applicants being admitted to the police force. The temporary provisions impose a 50% Catholic intake, while the other 50% can comprise applicants of any other religion.

As a result of these provisions, between 2001 and 2004 more than 800 (eight hundred) applicants were dismissed on the grounds of their religion. At a time when the number of police constables should have been increased in order to protect the people of Northern Ireland against a rising crime rate and the persistent present threat of terrorism, discrimination on such a scale was outrageous and seriously undermined the confidence of the people of Northern Ireland in the PSNI.

Moreover, the reduction of the size of the PSNI led to widespread loss of morale amongst police officers. This ominous situation should not have been tolerated. The British Government should not have adopted the temporary legislation, which did not address the cause of Catholic under-representation in the PSNI and put the population of Northern Ireland at risk.

The Secretary of State indicated in paragraph 48 of the Consultation Paper:

“In line with the Government’s obligation under Section 75 of the Northern Ireland (Act) 1998 the proposal not to renew the temporary provisions has been subject to a screening process. This process has indicated that no section 75 group should be adversely affected by it, and the restoration of merit based recruitment would reduce the negative impact of the existing provisions on equality of opportunity. If the provisions were to remain in place, there would continue to be inequality of opportunity.”

We welcome the fact that the British Government acknowledges that the temporary provisions were discriminatory towards non-Catholic applicants. Indeed they were in breach of section 75 had not exceptional legislation been introduced to allow them. In these circumstances it is hard to see how the end of the temporary provisions may have an adverse impact on equality of opportunity for any of the groups specified under section 75 of the 1998 Act. Therefore the end of the temporary provisions will at last provide equality of opportunity, in compliance with section 75 of the 1998 Act, for all members of the community whatever section of the community they may come from.


IV. CONCLUSION

- The particular provisions for Northern Ireland incorporated in Article 15 of the Council Directive 2000/78/EC run contrary to the principles of liberty, democracy, respect for human rights and fundamental freedoms on which the European Union is founded, since the exemption granted to the British Government resulted in practice in facilitating terrorist activities;

- The temporary provisions introduced in the Police (Northern Ireland) Act 2000 run contrary to the principles of liberty, democracy, respect for human rights and fundamental freedoms on which the European Union is founded, as well as against the Guidelines on Human Rights and the Fight against Terrorism adopted by the Committee of Ministers of the Council of Europe and the ECHR, since they make concessions to terrorism and facilitate terrorist activities;

- The 50/50 recruitment legislation constitutes an unjustified discrimination against non-Catholics, who are excluded from joining the PSNI solely on the grounds of their religion despite their merit, contrary to section 75 of the Northern Ireland Act 1998.


V. Recommendations in support of the proposal made by the Secretary of State not to renew the temporary provisions

The British Government’s proposal not to renew the temporary provisions is right for the following reasons:

. In not renewing the temporary provisions the British Government will make a decision that is in compliance with the principles laid out by the European Union as well as those of the ECHR and in accordance with the Guidelines on Human Rights and the Fight against Terrorism adopted by the Committee of Ministers of the Council of Europe on 11th July 2002;

. It would have been preferable for the British Government not to use the exemption obtained from the European Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and education, in order to justify exceptional recruitment arrangements which were in breach of the founding principles of the European Union, the ECHR and the Guidelines on Human Rights and the Fight against Terrorism provided by the Committee of Ministers of the Council of Europe;

. The British Government should have taken all the necessary and appropriate measures to guarantee the protection of the people of Northern Ireland, and is justified in not renewing the temporary provisions, which did not address the real cause for Catholic under-representation in the PSNI, and also reduced the number of trainee constables being admitted to the police force;

. The British Government’s decision not to renew the temporary provisions, which so obviously discriminated against all those who were not Catholic, will contribute to the restoration of the confidence of the Protestant people of Northern Ireland in the PSNI;

. The British Government’s decision not to renew the temporary provisions will be part of the appropriate measures that will ensure that the morale of police officers is not undermined because of lack of recruits;

. The British Government should now ensure that enough recruits are being enrolled to tackle crime efficiently and defeat the threat of terrorism;

. The British Government should address the real cause of any potential reduction in application from Catholics, which stems from terrorist threats being exercised on the Catholic population.


In deciding not to renew the temporary provisions for the recruitment of police officers and police support staff, the British Government will comply with the international commitments of the United Kingdom and restore equality of opportunity. This positive decision should also be supported by measures aiming at ensuring that the people of Northern Ireland are duly protected, particularly against the on-going threat of terrorism, and that the Catholic population is not subjected to the oppression exercised by terrorist organisations to deter members of that section of the community from joining the PSNI.

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