The HRA and Legacy Issues in Northern Ireland – UK Constitutional Law Association

The HRA and Legacy Issues in Northern Ireland – UK Constitutional Law Association

The HRA and Legacy Issues in Northern Ireland – UK Constitutional Law Association

*Editors’ note: This post is part of a series on ‘The Human Rights Act After 22 Years’, following the SLS Annual Seminar held in November 2022. You can read the first post in the series here.

Generally speaking, the Human Rights Act (HRA) has played a marvellous role in helping the Northern Ireland peace process to bed down.

Policing

The area in which the HRA has most obviously affected the peace process is probably that of policing. The Police Service of Northern Ireland (PSNI) is firmly rooted in human rights thinking and the Northern Ireland Policing Board produces detailed Human Rights Annual Reports critiquing the Service’s adherence to the HRA. All police officers now work to a Code of Ethics which is very largely framed around the HRA and, by statute, the Code constitutes one of three core principles of policing and any breach of it is automatically a breach of the PSNI’s Disciplinary Regulations.

This is not to imply, of course, that for the last 21 years the PSNI has never breached the HRA. A notorious example from just a few years ago is when the police unlawfully obtained a warrant to search the premises of two journalists who had helped to make a film about police collusion with loyalist terrorists following a murderous attack on a bar. The courts quashed the warrant and the journalists later settled for substantial compensation. The Supreme Court has also ruled that the PSNI failed to understand its own powers when dealing with illegal loyalist ‘flag protests’ in 2012-13. Most serious of all, perhaps, has been the police’s obstructive approach to the release of documents asked for by coroners, an apparent breach of Article 2 of the ECHR.

Criminal justice

Turning to criminal justice issues more broadly, the HRA has had a less high-profile but still important effect in Northern Ireland. A key recommendation of the group of experts appointed to review the criminal justice system in 2000 was that everyone working in the system should participate in human rights training. So far, however, the HRA has had no impact on the continued use of non-jury courts for troubles-related trials. Stop and search powers exercisable without any suspicion under the Justice and Security (NI) Act 2007 are still used regularly throughout the six counties. Moreover, there are inordinate delays throughout the entire criminal justice system.

There has been extensive reform of the prison system in Northern Ireland too. Although the HRA played no direct part in this, the treatment of prisoners has undoubtedly improved as a result. Controversially, republican and loyalist prisoners are still housed separately within one prison, and away from all other prisoners. As regards the rights of ex-prisoners, in 2021 a judge declared a provision in the Rehabilitation of Offenders (NI) Order 1978 to be incompatible with Article 8 of the ECHR because it provided no mechanism allowing ex-prisoners to apply to have their convictions considered as spent, regardless of the passage of time and personal circumstances.

Victims’ rights: inquests and inquiries

The HRA has been directly responsible for reform of coroners’ courts. People suspected of criminal activity can now be called to give evidence, families of victims are more directly involved, the police are under a continuing duty to make full disclosure of documents, and a jury is no longer prohibited from finding facts pointing to the existence of criminal liability.

Since 1998 inquests and public inquiries have been more effective than prosecutions at bringing out the truth behind legacy killings. In 2021, the inquest into the killing by British soldiers of 11 people in an area of West Belfast in 1971 produced a lot of valuable information for the families of the deceased. The Bloody Sunday killings in Derry less than six months later were of course the subject of a massive public inquiry led by Lord Saville, and the words of Prime Minister Cameron on its completion in 2010 – that what had happened was ‘unjustified and unjustifiable’ – did a lot to assuage the anger of victims’ families and the whole nationalist community in Derry.

Many families have settled for large sums of compensation as a result of these inquests and inquiries, and indeed a more general ‘victim’s pension’ scheme was eventually commenced in August 2021, backdated to 2014.

Victims’ rights: investigations and prosecutions

Since the HRA came into force the UK’s top court has heard no fewer than six cases from Northern Ireland dealing with Article 2 of the ECHR.

  • In 2004, in In re McKerr, the House of Lords held that Article 2 did not apply to killings which occurred before the HRA came fully into force on 2 October 2000.
  • In 2011, in In re McCaughey, the Supreme Court took account of the European Court’s Grand Chamber judgment in Šilih v Slovenia and ruled that any inquest held into a death resulting from the actions of state agents before the HRA came into force did have to comply with Article 2.
  • In the Finucane case in 2019 the Supreme Court held that a failure to fulfil a promise to hold a public inquiry was not a violation of Article 2 but stressed that an Article 2-compliant investigation into the murder of Pat Finucane in 1989 had still not occurred.
  • In Jordan, also in 2019, the Supreme Court found that it was a breach of the proportionality principle for a court not to award compensation for delays in holding an inquest until the inquest was complete.
  • In 2021, in McQuillan, the Supreme Court found that, under the test laid down in Šilih v Slovenia and developed by Janowiec v Russia, there was no ‘genuine connection’ between the death in question, which occurred in 1972, and the critical date, 2 October 2000. Had Article 2 applied, the court would have held that the PSNI’s duty to investigate the death had to be revived (under the test in Brecknell v UK) because the military logs discovered in 2014 constituted new evidence.
  • In the Dalton case, heard by the Supreme Court at the end of October 2022, the key question is whether there should be a new inquest into Mr Dalton’s death in 1988 because of additional evidence emerging in 2005 and considered by the Police Ombudsman in a 2013 report. The seven Justices are now asking themselves (1) did this death occur too many years prior to the year 2000 for a duty to be imposed on the state to conduct an Article 2-compliant investigation, and (2) if it did not, was the duty to investigate revived by the new evidence? In effect the Court is being asked to overturn its decision in Finucane and to stick rigidly to the 10-year time limit imposed by the ECtHR in Janowiec v Russia, rather than extend it to 12 years. Given the current conservatism of the Court, it may well accede to both those requests, although this would be difficult for Lord Hodge, who (alone of the seven Justices in Dalton) also sat in Finucane.  

The Northern Ireland (Legacy and Reconciliation) Bill currently before Parliament will grant immunity from prosecution to people who confidentially supply evidence of their own wrongdoing to a statutory body. The Bill is not supported by any political party in Northern Ireland, nor by the UK Labour Party nor the Irish government, but a recent poll conducted by the University of Liverpool for the Irish News shows that there is majority support for such an approach within the nationalist population of Northern Ireland. If enacted, the legislation is sure to be challenged through the courts and ultimately the ECtHR will probably have to adjudicate upon its compatibility with Convention rights. I think myself that there is only a small chance of it surviving such scrutiny, because to date the ECtHR has indicated that it would support an amnesty approach in a conflict zone only if it is balanced by enhanced reconciliation measures, which is not the case with this Bill. On the other hand, bearing in mind the vanishingly small chances of successful prosecutions being brought at this stage, the ECtHR may be persuaded to tolerate the Bill. After all, it turns a blind eye to statutes of limitation for serious crime, even murder, in many European countries.

Overall the role of the HRA vis-à-vis legacy issues in Northern Ireland has been considerable, but it is fair to say that a lot of change has been achieved without its direct involvement and there is still some uncertainty as to exactly what role Articles 2 and 3 have still to play in dealing with Northern Ireland’s past.

Brice Dickson, Professor Emeritus, School of Law, Queen’s University Belfast

(Suggested citation: B. Dickson, ‘The HRA and Legacy Issues in Northern Ireland’, U.K. Const. L. Blog (10th November 2022) (available at https://ukconstitutionallaw.org/))

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