Devolving Policing & Justice in Northern Ireland: A Discussion Paper:
Apr 2006

1. A response from British Irish Rights Watch.

1.1 British Irish rights watch is an independent non-governmental organisation that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.

1.2 BIRW welcomes the opportunity to comment on the discussion paper, ‘Devolving Policing and Justice in Northern Ireland’.

1.3 In principle, we broadly agree with many of the proposals outlined in this document. We hope that on issues such as human rights training and education, the NIO and the Assembly are able to maintain their commitment to the implementation of a human rights compliant criminal justice system and to factors such as transparency and accountability within Northern Ireland’s institutions.

1.4 However, there are several elements of this discussion paper which cause BIRW concern. Firstly the proposal to transfer primacy over terrorism issues from the PSNI to MI5. We view this as a backward step in the move towards peace in Northern Ireland. MI5 has consistently undermined human rights in Northern Ireland, and indeed in cases such as the ‘super spy’ known as Stakeknife, have directly violated human rights standards. In contrast, the PSNI has worked hard toward becoming human rights compliant, and is slowly winning the trust of Northern Ireland’s various communities. It seems utterly pointless to undo this work by transferring primacy to an agency which has shown itself to have such little respect for the rule of law. Secondly, BIRW has concerns about the stability of the political structure in Northern Ireland and its relationship with the NIO and the PSNI/criminal justice system. We highlight the cases of the Castlereagh break-in (2002) and so called ‘Stormontgate’ (2002-5) as examples where the involvement of the security services and high-level informers has eroded support for the Assembly. Finally, while we support many of the proposed changes to the criminal justice system, we remain concerned that outstanding issues within the system need to be resolved before this process can be properly and effectively implemented. In particular we draw attention to the extremely slow reform of the coronial system, which is undermining the ability to provide effective investigations into lethal force deaths.[1]

1.5 The Discussion Paper does subtly promote the impression that the Northern Ireland Assembly, and by association the communities they represent, can only be trusted with certain elements of government and power. An example of this is the decision to devolve the majority of policing yet retain the policy of 50:50 recruitment as the responsibility of the Secretary of State. The devolution process is a positive step forward for Northern Ireland, and as such it would be more constructive to simultaneously devolve as much as possible

2. Scope of Devolution

2.1 BIRW agrees with the NIO on the proposed nature of the devolvement process. We believe that the policing and justice system should be devolved together. This should help to smooth the transition of the system, and send a positive message to both the Northern Ireland Assembly and the wider community. This view is supported by the Justice Oversight Commissioner.[2]

2.2 However, as we have indicated in paragraph 1.5 above, we are concerned about the scope of the powers that will actually be devolved to Northern Ireland. In our view, a half-way house, in which some powers reside in Northern Ireland but many others reside in Whitehall would send a negative message to Northern Ireland about its ability to run its own affairs properly. It could also give rise to confusion, buck-passing and even tension if different approaches are adopted to the administration of justice.

3. Departmental Models

3.1 The Northern Ireland Assembly is a product of its complex setting – consensus can be elusive, resulting in constant gridlock. Recent research into Northern Ireland’s attitude toward the Assembly found that people wanted to: ‘change(ing) the structures established by the Good Friday Agreement to encourage “conciliatory rather than confrontational political behaviour”’.[3] While healthy debate within the chamber itself should be actively encouraged, this becomes less constructive when translated into government departments and their operation and management. The principle of consensus within this sphere also should be developed and supported.

3.2 Hence BIRW supports the model offered in the discussion paper which is: ‘A single Justice Department, headed by one Minister (perhaps supported by a Junior Minister from the other tradition)….’.[4] We believe that all elements of the criminal justice system should be devolved and comprise one department, with the exceptions of policing, forensic services and any oversight bodies. We believe that in order to ensure accountability and transparency, this new department should be accountable both internally, to an Assembly committee, and externally, to an institution such as the Criminal Justice Inspectorate. Any oversight body must be fully independent. The NIO and the Assembly should have as their aim a transparent and streamlined criminal justice system.

3.3 We acknowledge the fact that the Assembly will be bound by the UK’s human rights commitments such as the Human Rights Act 1998 and the European Convention on Human Rights. It is also encouraging that the Section 75 equality duty will continue to bind of the criminal justice system.

4. Public Order

4.1 BIRW recognises that the issue of public order is contentious. However, we do believe that it should be devolved in line with other departments and responsibilities. This streamlined approach to devolution will ensure that the implementation of decision-making by the Assembly will be complete. It also acknowledges that the people of Northern Ireland are best placed to make decisions about the forms of behaviour they deem acceptable to have on their streets; and encourage the development of a culture of human rights.

4.2 BIRW believe that the Parades Commission and its operation should be fully devolved, for the reasons mentioned above. If devolution is about ‘developing a vision of a shared future’ then the Assembly needs the power to negotiate between communities, and to create unity and co-operation within Northern Ireland.[5] Some parades have the potential to be highly divisive, but retaining power for public order in Westminster will not contribute to the deconstruction of these divisions.

5. The Police and the Policing Accountability Framework
5.1 BIRW broadly agree with the NIO’s plans on the devolvement of the Policing Board. We hope that a concerted effort is made to encourage those from the nationalist community to apply for membership to the Board.
5.2 BIRW also agrees with the majority of the Discussion Paper’s suggestions regarding the PSNI. However, it is not clear why responsibility for the temporary provision of 50:50 recruitment will remain the Secretary of State. While there has been an improvement in the recruitment of Catholics to the PSNI, it is highly likely that the target of 30% will not be reached by 2010/11 and hence the temporary recruitment provision, currently set to expire in March 2007, will need to be renewed. It would make sense for this provision to be devolved to the Assembly – therefore making devolvement of policing as complete as possible.

6. The Courts

6.1 BIRW supports the majority of the proposals regarding the devolution of the courts system. However, we encourage the NIO to consider transferring the administrative support for the Northern Ireland Court System to the Department of Justice to ensure a more centralised approach.

6.2 BIRW welcomes the commitment to the independence and impartiality of the judiciary. We look forward to seeing details of the Concordat outlined in paragraph 15.16

6.3 BIRW welcomes the creation and implementation of the Judicial Appointments Ombudsman which affirms a commitment to an open and fair recruitment process.

7. Excepted Matters (Including national security and extradition)

7.1 BIRW is extremely concerned at the transfer of the lead responsibility for national security in Northern Ireland from the PSNI to the security services.

7.2 The absence of transparency and accountability for the operation of the security services heralds a return to the ‘bad old days’ where the security forces acted with impunity. Northern Ireland is barely coming to terms with the legacy of its past or the extent of the role of collusion in the conflict; thus the transfer of security responsibility can hardly be viewed was a positive step forward.

7.3 The Secretary of State’s assertion that the nature of international terrorism means that counter-terror should not be regional but national has some value. The nature of international terror, and ‘regional terror’ is very different. It is unclear to BIRW why the government cannot maintain control over national terror, and allow regional terror to be controlled by the PSNI; especially considering that the majority of contemporary paramilitary activity is criminal in nature.

7.4 The security services are already over-stretched yet it is not clear if more funding will be made available to them to cover their new role. BIRW would welcome information on the funding of the security services for their increased role in Northern Ireland.

7.5 Our second major concern with this transfer is collusion. Northern Ireland’s past is littered with incidents where the security services manipulated, lied and murdered individuals in the name of national security. We are fearful that a transfer of authority will lead us straight back to those dark days. The absence of transparency and accountability is a guarantee this will happen. The continuing denials by the security services of their involvement in key murders is indicative that few lessons have been learnt. Any transfer of authority will thus severely undermine the nature of policing in Northern Ireland, and importantly, how policing and security issues are understood by the wider community.

7.6 How will the NIO convince the communities of Northern Ireland that the security services will respect the right to life? And, where this right is violated, that an effective investigation will take place?

7.7 Much has been made, in recent weeks, of the issue of information sharing between the security services and the PSNI. We draw the NIO’s attention to the case of Omagh, where an alleged failure to pass on information to the RUC may have contributed to the deaths of 29 people and unborn twins, as well as many terrible injuries.

7.8 BIRW is concerned that the conclusion of the normalisation process will not result in the demise of the Diplock system. Particularly ominous is the statement: ‘but Ministers have made clear that whatever provisions are necessary will be made available to secure effective trials, where intimidation of jurors by paramilitaries remains a factor’.[6] BIRW has long argued against the use of the Diplock system, which impacts adversely upon due process rights and the right to a fair trial. While BIRW acknowledges that the intimidation of jurors can still happen, we do not believe that curtailing the legal rights of defendants is an adequate response. BIRW would like further information on the sorts of measures Ministers would introduce to ensure jurors and defendants are protected.

7.9 Plans to continue to use the army in public order situations are disappointing. As BIRW has stated on numerous occasions, one of the key problems with deploying the army is the lack of transparency with regard to their operations, and the absence of any oversight function. In particular, BIRW draws attention the recent use of Attenuated Projectile Missiles (AEPs) by the army.

In all 389 AEPs were fired between 10th and 13th September, of which 249 were fired by the police and 140 were fired by the army.[7] The rioting was the most serious seen in Northern Ireland for a decade. BIRW has seen one report of a woman being hit in the stomach by a plastic bullet which ricocheted. [8] Serious concerns arise because, unlike the PSNI, there are no investigations into the firing of AEPs by the Army. This is particularly pertinent considering the army has been responsible for 11 of the 17 fatalities caused by plastic and rubber bullets.

7.10 The continued presence of the army in public order situations substantively undermines the normalisation process. No-where else in the UK is the army deployed for this purpose. BIRW strongly encourages the NIO not to pursue this element of the devolution plan.

7.11 With regard to extradition, BIRW looks forward to seeing the results of the discussions on the devolvement of administrative functions.

Other issues of concern

8. Anti-terror legislation

While BIRW has welcomed the enactment of the normalisation process announced in the summer of 2005 and the end of emergency law, we believe that the new anti-terror legislation currently proposed by the government will directly undermine these changes. Our opposition to the Terrorism Bill has focussed primarily on the possibility of detention without trial (internment), the problems of using ‘shoot to kill’ and the glorification of terrorism. We have seen the results of laws and practices such as shoot-to-kill, collusion, the broadcasting ban etc previously in Northern Ireland. Such measures merely lead to the recruitment of more ‘martyrs’ to the cause, create miscarriages of justice, distort the justice system, and erode human rights and civil liberties. Northern Ireland is emerging from an era where such results were the norm. It would be completely counter-productive to return Northern Ireland, and indeed the rest of the UK, to this state of affairs in the name of countering terrorism. The best protection against terrorism is a robust, human rights-compliant system of justice in which the majority of people on all sides of the community have pride and confidence, and the desire to defend their country against crimes like terrorism.

9. Oversight

BIRW is aware that some elements of the criminal justice system do not have an adequate complaints system. BIRW draws the NIO’s attention to the recommendations made in the Justice Oversight Commissioner’s reports which clearly highlights this issue. Improvements in the management and operation of the PSNI have been aided in part by the presence of the Police Ombudsman. BIRW believe that this structure would be beneficial for the elements of the criminal justice system which do not have this facility currently.

10. Human rights and Northern Ireland’s institutions

The introduction of human rights into Northern Ireland’s institutions such as the PSNI and the Prison Service has had a mixed reception. While there have been huge strides forward especially by the PSNI, there remains considerable work to be done. Previous reviews of the Criminal Justice System have placed a strong emphasis on the need for human rights to be central to any efforts of either reform or transference of authority – it is vital that this remains a core goal. BIRW is encouraged by the conclusions drawn by the Justice Oversight Commissioner with regard to the implementation of human rights training for members of the criminal justice system. BIRW hopes that the quality of this training continues to be monitored, and that refresher courses are an integral part of future training strategy. We are also hopeful that the training is kept up to date with changes in human rights standards at both the national and international level.

11. Context of devolution

The failure of the RUC to adequately police Northern Ireland during the conflict has left a complex legacy for the PSNI. As the political climate in Northern Ireland changes, more families who lost loved ones during the conflict, are seeking the truth, and justice behind their murders. It is imperative that some kind of resolution for these families is found. While the Historical Enquiries Team (HET) is clearly a step in the right direction, it is still the police investigating the police. Likewise in cases which invoke Article 2 of the ECHR, the HET will not be able to fully comply. BIRW believes that the HET has the potential for some resolution to be brought to the past. However, we remain concerned that investigations will be thwarted by past RUC malpractice, particularly when it came to collusion and the use of informers.

11.1 The absence of justice and truth in Northern Ireland continues to impede Northern Ireland’s transition to a fair and democratic society. The failure of the NIO, PSNI and criminal justice system to enable this transition cannot be understated. For instance, the failure to adequately investigate the ‘loyalists feud’ deaths in 2005 and to deal adequately with the recent serious unrest in Balllymurphy, has undermined the rule of law. This inaction feeds into existing tensions.

11.2 Recent research indicates that for the Northern Ireland Assembly (and by association the devolution process) to work there is a need for ‘a strong commitment to address resentments that are simmering in wider society’.

Similarly, although the commitment to devolution within Northern Ireland’s communities is relatively strong, the impact of devolution on community relations was actually quite negative: ‘there is a sense that these trends in community relations reflect the way political parties and their leaders used the Assembly to highlight starkly drawn identities and the incompatible constitutional demands that flow from them – either the Union with Great Britain or a united Ireland – rather than taking the opportunity to transcend traditional divisions and make devolution work’. [9]

11.3 To make devolution a viable reality for people in Northern Ireland, the commitment found at the grass-roots level to moving forward must be fully implemented at the political and governmental level. Human rights and principles of transparency and accountability must remain central to any devolution efforts.

APRIL 2006

  1. A recently published report, Investigating Lethal Force Deaths in Northern Ireland, Commissioned by the Northern Ireland Human Rights Commission covers this issue in detail.
  2. Fifth Report of the Justice Oversight Commissioner. Justice Oversight Commissioner. January 2006. P. 172
  3. Research was carried out by Professor Charlie Jeffrey of the University of Edinburgh and reported in the Irish News. Study finds people want assembly back Irish News. 23.03.06
  4. Devolving Policing and Justice in Northern Ireland: A Discussion paper. Northern Ireland Office. March 2006. P. 5
  5. Devolving Policing and Justice in Northern Ireland: A Discussion paper. Northern Ireland Office. March 2006. P. 21
  6. Devolving Policing and Justice in Northern Ireland: A Discussion paper. Northern Ireland Office. March 2006. P. 44
  7. Replies to Freedom of Information requests made to the PSNI: 30/2005, 6 December 2005 (re September 2005) and F-2005-02695, 19 December 2005 (July and August); Reply to Freedom of Information request made to the Ministry of Defence: AIT ref: 06-12-2005-160150-023 & 07-12-2005-164653-015, 9 December 2005
  8. If I were a few years younger, I’d be rioting myself, Sunday Tribune, 18.09.05. See BIRW Plastic Bullets report, January 2006.
  9. Devolution in Northern Ireland. Prof. Charlie Jeffreys. Devolution and Constitutional Change. University Of Edinburgh. March 2006.