- RW (UK) welcomes the continued reform of OPONI as a key institution in the policing structure of Northern Ireland and as one mechanism for investigating conflict-related deaths (The Legacy Cases). However, we note the protracted nature of the reform process following the OPONI Five Year Review of Powers published in 2007 and the controversy surrounding the conduct of investigations by OPONI which led to the public crisis in confidence, the resignation of the previous Ombudsman, the suspension of historical investigations and the current reform consultation.
- Further, we note that seven of the eleven recommendations from the Five Year Review require legislation; the eleven recommendations from the Five Year Review engage international obligations to ensure compliance with Article 2 of the European Convention on Human Rights (the Convention). These recommendations require cross-party political support in Northern Ireland.
- It is imperative for the credibility and integrity of OPONI that these reforms ensure that the office is compliant with the human rights obligations of the Convention and other international human rights instruments and standards. This means that reforms to OPONI must involve the implementation of mechanisms and procedures to guarantee promptness, effectiveness and independence in its investigatory role of human rights violations where conduct of both the current Police Service of Northern Ireland (PSNI) and the Royal Ulster Constabulary (RUC) is questioned through a complaint or referral.
Delays in the Process of the Reform of PONI
It is now six years since the publication of the OPONI Five Year Review of Powers. Very few of the reform proposals in that Review have been implemented. The process of reform has been halted by internal problems within PONI resulting in the resignation of the previous Ombudsman but also because of political considerations between the Northern Ireland Office, the Department of Justice, and the Justice Committee of the Assembly in addition to other stakeholders. The delays in the process of the reform of OPONI mean that the office continues to operate in a manner which is not compliant with the human rights obligations under the Convention. This is unsatisfactory specifically in relation to the Legacy Cases where resolution is important for individual relatives and victims whose age is a factor and for the broader stability of the peace process in Northern Ireland where Dealing with the Past is an essential aspect for securing the future.
Article 2 of the Convention protects the right to life. A breach of Article 2 therefore places a burden upon the state to discharge its procedural obligation under the Convention to investigate the breach. It is established jurisprudence that such an investigation must be prompt. Because OPONI is tasked with investigating circumstances which engage the remit of Article 2, specifically with regard to the Legacy Cases of the conflict, these investigations must be prompt in order to ensure effectiveness. Any delay in the reform process of OPONI is therefore in contravention of the procedural obligations arising under Article 2. The current reform process of OPONI must therefore be expedited without further delay and without political interference. The latter provision (which we recognise as difficult in the political environment of Northern Ireland where there is a power sharing Executive) needs to be understood so as to discharge a further limb of the procedural obligation in that prompt and effective investigations of violations of Article 2 be independent.
The covering letter to consultees of 17 June 2013 notes that the recommendations from the Department of Justice Discussion Paper and the Five Year Review concentrate on those which are likely to achieve cross party political support. Our concern with this statement is that whilst we recognise the importance of political will to deliver policy reform, in relation to human rights compliance there must be independence to discharge the procedural obligation arising under Article 2. To base a consultation on the premise that only those recommendations which are politically achievable in Northern Ireland will be considered overlooks the government’s obligations. The covering letter further states that there are recommendations that have not been included in the package of reforms due to lack of political support or due to lack of responses from previous consultees. This further undermines the credibility of the consultation process in relation to the reform of OPONI.
Recommendations not being taken forward by the Department of Justice
Annex C of the consultation document lists 11 recommendations from the Five Year Review which are not being taken forward by the Department of Justice. There are two Recommendations in this list which raise concern. First, Recommendation 17 states that the Police Ombudsman be given powers to compel retired or former police officers to submit a witness interview and to provide all relevant documentation to him, which is within their possession, custody, power or control when he is conducting investigations involving grave or exceptional matters. Second, Recommendation 20 states that the Police Ombudsman should be able to investigate deaths occurring either directly as a result of police action or indirectly due to police operations despite the fact that the death might otherwise have been previously investigated by police.
These are two very significant Recommendations. To state in the covering letter that these will not be implemented because of the lack of consultee responses or the lack of political support is worrying precedent for a consultation. As we have noted above, the procedural obligation arising under Article 2 of the Convention requires prompt, effective and independent investigations. Recommendations 17 and 20 address the gaps in the Police Ombudsman’s powers relating to former or retired officers and RUC conduct regulations and are central to the discharge of this procedural obligation.
If the Northern Ireland Executive has already indicated that it would block these Recommendations, or the Department of Justice considers that it could not progress the required legislation through the Northern Ireland Assembly, then this should be bought to the attention of the Secretary of State for Northern Ireland. Such a referral would be in accordance with the Belfast/Good Friday Agreement which provides the Executive at Westminster with powers (including the use of legislation) to ensure that Northern Ireland fulfils its international obligations, despite the political will of the devolved administration. These powers are contained in sections 26 – 27 of the Northern Ireland Act 1998 and with reference to section 6(2) (c).
A consultation which is circumscribed from the outset by political factors on the reform of an agency which is key to the policing structure of Northern Ireland is not a constructive consultation. There may be a political reality to this circumvention but that does not enable a reform package to be produced which satisfies the needs of the Convention on matters as urgent a human rights violations carried out either directly by state agencies or subject to inadequate investigative responses by those agencies. The consultation document states at paragraph 1.9 that “This package of proposals is intended to further enhance the Office’s effectiveness and contribute to public confidence in the operation of the Ombudsman’s office and policing more widely.” In not taking forward important human rights compliant Recommendations because of the lack of political will, or because of the lack of consultee response or the pressure upon the legislative timetable, serves to undermine the effectiveness of this consultation and will not engender public confidence in OPONI.
13 August 2013