Submission to UN Human Rights Council’s Universal Periodic Review Mechanism Concerning the UK:
Nov 2006


1. INTRODUCTION

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 free of charge 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 This submission to the Human Rights Council’s Universal Periodic review Mechanism concerns the United Kingdom (the UK). All our comments stem directly from our work and experience. In the interests of brevity, we have kept details to a minimum, and annexed additional information.

2. IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS OBLIGATIONS

2.1 In October 2000, the UK enacted the Human Rights Act 1998 (HRA), which was intended to incorporate most of the provisions of the European Convention on Human Rights (ECHR) into its domestic law. Due to the similarity of many of the provisions of the ECHR and ICCPR, the UN Human Rights Committee has found that, through the HRA, the UK has also incorporated many ICCPR rights into its domestic legal order[1]. However, the House of Lords has held that, instead of incorporating the ECHR rights into domestic law, the HRA merely gives effect to these rights in domestic law[2]. Therefore, the UK courts do not have to apply the HRA retrospectively and require the Government to remedy any breach that occurred prior to the coming into force of the HRA[3]. Individuals who have claims for violations of their human rights arising from incidents before that are therefore unable to vindicate their rights before the domestic courts. This approach was recently confirmed in the 2007 House of Lords decision in R (on the application of Hurst) v. Commissioner of Police of the Metropolis[4]. Given the similarity between provisions of the ICCPR and ECHR, this denies individuals the full protection of these convention rights.

2.2 The HRA did not incorporate Article 13 of the ECHR into domestic law, which provides for an effective remedy for breaches of Convention rights. This denies individuals the right to a domestic remedy where there has been a violation of their ECHR rights.

2.3 As explained in paragraph 2.1 above, the UK has incorporated many ICCPR rights into its domestic law. However, as recognised by the Human Rights Committee in its 2001 examination of the UK’s observance of the provisions of the ICCPR[5], the UK has failed to accord the same level of protection to other Covenant rights, including the provisions of articles 26 and 27, which guarantee individuals the right to equality before the law and protect the rights of ethnic, religious or linguistic minorities. The failure to incorporate these rights is of particular concern, especially given the discriminatory effect of counter-terror measures currently in force in the UK.

2.4 The Human Rights Committee has also recommended that the UK should consider, as a priority, accession to the first Optional Protocol[6]. The UK has not however taken any steps to meet this recommendation, thereby depriving people within the UK of the right of individual petition to the Human Rights Committee.

3. NATIONAL LEGISLATION AND COMPLIANCE WITH HUMAN RIGHTS OBLIGATIONS

3.1 Since 2001, the UK has enacted vast amounts of legislation with the aim of countering terrorism. We believe that any measures to combat terrorism undertaken by the UK should be in full compliance with international human rights obligations. However, we are concerned that the recently enacted counter-terror legislation has created a twin-track system of justice with fewer due process rights for certain suspects and defendants determined by the supposed motivation for their acts. This legislation perpetuates the so-called emergency laws enacted in response to the conflict in Northern Ireland. Yet there is no state of emergency in Northern Ireland, or elsewhere in the UK, and such laws are unjustified.

3.2 In February 2001, the Terrorism Act 2000 replaced previous emergency laws[7], some of which covered the whole of the UK, and others of which only applied in Northern Ireland. In 2001, the Anti-Terrorism, Crime and Security Act supplemented this counter-terrorism legislation, followed by the Prevention of Terrorism Act 2005 which, inter alia, introduced the power to make control orders. The following year, a number of new offences were created with the enactment of the Terrorism Act 2006. These offences are commented upon in more detail in Annex 1. In June 2007, the UK Government announced its intention to introduce a range of further counter terror measures[8], which are currently being pushed through Parliament. BIRW has prepared a detailed submission to the Government in response to these proposals, which is attached at Annex 2. In our view, this vast swathe of counter-terror legislation is unnecessary. Terrorism in Northern Ireland, while still a threat, does not entail any activity that cannot be dealt with by the ordinary law, as can acts of terrorism elsewhere in the UK. It is interesting to note that UK counter terror legislation does not seem to be taking account of the recent words of our Prime Minister, “We must never forget that the state and the people are not equivalent. The state is always the servant of the people. We must remember that liberty belongs to the people and not governments.”[9]

3.3 In recent years, information about the activities of the British army intelligence unit, the Force Research Unit (FRU), has gradually come to light. The FRU functioned in Northern Ireland between 1980 and 2007.[10] It is alleged that FRU infiltrated agents into paramilitary groups and assisted those groups to target people for murder. They are also said to have allowed bombings and shootings to go ahead, resulting in more deaths, in order to protect their agents from discovery. It is further alleged that they caused the deaths of paramilitaries by falsely identifying them as informers.

3.4 In response to wide international and local criticism about the lack of investigation of these and other high profile deaths, the UK Government has now established inquiries into the murders of Rosemary Nelson[11], Billy Wright[12] and Robert Hamill[13], all of which concerned allegations of collusion. Yet the investigations into the latter two murders have controversially been converted into inquiries under the Inquiries Act 2005. BIRW consider that the Inquiries Act undermines the rule of law, the independence of the judiciary and human rights protection, and therefore fails to provide for effective, independent, impartial or thorough public judicial inquiries into serious human rights violations. This is because, instead of inquiries being under the control of an independent judge, they are controlled in all important respects by the relevant government minister. Under the Act, the Minister decides whether there should be an inquiry, sets its terms of reference, can amend its terms of reference, appoints its members, can restrict public access to inquiries, can prevent the publication of evidence placed before an inquiry, can prevent the publication of the inquiry’s report, can suspend or terminate an inquiry, and can withhold the costs of any part of an inquiry which strays beyond the terms of reference set by the Minister.

3.5 Under the terms of the Good Friday peace agreement in Northern Ireland, the UK has established a Human Rights Commission for Northern Ireland, which is currently engaged in drawing up a Bill of Rights to supplement the ECHR. After the Commission produced two unsuccessful drafts, in September 2006, a Bill of Rights Forum consisting of representatives of political parties and civil society was established, which has agreed terms of reference and set up a number of working groups. The Forum is due to submit recommendations to the Commission and UK Government in March 2008. However, there are concerns that the Government may be influencing the debate behind the scenes, as the timetable for drafting of the Bill is short and resources are too limited for proper outreach to take place[14]. BIRW believes that the UK Government should ensure that the Bill of Rights Forum has sufficient resources and time so that it is best placed to establish an effective Bill of Rights for Northern Ireland. Further, the emphasis on responsibilities should be on the state, not on individuals.

3.6 On 3 July 2007, the UK Government revealed details of its route map to constitutional reform, as set out in the Green Paper “The Governance of Britain”[15]. This proposes the creation of “A Bill of Rights and Duties” for Britain, which will draw upon and add to the provisions of the HRA, and therefore the ECHR and its corresponding articles in the ICCPR. It is envisaged that the Bill will give people a clear idea of what they can expect from public authorities, and from each other, and that it will set out a framework for giving practical effect to common values.[16] BIRW submits that the establishment of a Bill of Rights for Britain should be encouraged since, as set out in paragraph 2.1 above, the HRA does not provide for an effective remedy for human rights violations, and the judgments in McKerr and Hurst mean that the vindication of people’s human rights depends on when the violation occurred. The Government should learn from the Northern Ireland Bill of Rights experience, concentrating as much on the process and timing of the Bill and ensuring proper consultation, as on its content. Further, it makes sense for the UK to wait for the outcome of that process before embarking on a British Bill of Rights, so that lessons can be learned from the Northern Ireland experience.

3.7 The right of silence, long considered the most fundamental right of a suspect, was curtailed in Northern Ireland in 1989 and in the UK in 1994. The legislation permits the court hearing the charge against you to draw such inferences as appear proper from the fact of your silence, either while in police custody or at trial. BIRW is concerned that this legislation violates Article 6 ECHR and the corresponding ICCPR rights where the defendant has not been given access to legal advice: see John Murray v UK[17].

4. ACTIVITIES OF NATIONAL HUMAN RIGHTS INSTITUTIONS

4.1 Since its establishment, the Northern Ireland Human Rights Commission has repeatedly sought an increase in its resources and powers in order to be able to function effectively. Most recently, in response to these requests, the Justice and Security (Northern Ireland) Act 2007 introduced a number of changes to the Commission’s powers, which are generally to be welcomed. One of the reforms has enabled the Commission to rely on the ECHR when instituting, or intervening in, judicial review proceedings. However, BIRW is concerned that these changes do not go far enough. Specifically, although the Commission can now have access to places of detention, it must prepare terms of reference in advance and provide them to the relevant affected persons. This removes the element of surprise in any investigation, forewarning public bodies of the issues under consideration and, in the worst case scenario, enabling documents to be ‘lost’ or destroyed, thus undermining the nature of the Commission’s investigations.

4.2 Further, the Commission has not been designated a national preventive mechanism under the Optional Protocol to the UN Convention Against Torture (UN OPCAT), which the UK ratified in December 2003 and which came into force on 22 June 2006. This is surprising given the nature of the Commission and its aims and purpose: ironically it has more powers than many of the designated bodies. The designation process lacks transparency and clarity, and there has been a marked failure to adequately consult with and consider representations from civil society in relation to their potential to become a designated mechanism.

4.3 In June 2007, the Northern Ireland Office established a group to deal with the past in Northern Ireland. BIRW has a number of concerns with the establishment of this group, in particular regarding the lack of consultation with the people of Northern Ireland, the membership of the group, the broad terms of reference and the short time scale within which the group must reach its conclusions. These concerns are expanded in Annex 3.

4.4 The recent transfer of primacy for counter-terrorism from the police to the security services causes BIRW particular concern, in particular because there is no mechanism to hold the security services to account.

4.5 The Chief Constable of the PSNI, Sir Hugh Orde, has recently decided to deploy tasers (electric stun guns) in Northern Ireland. This decision has yet to be authorised by the Policing Board, which oversees the work of the PSNI. BIRW has grave concerns about the potential introduction of tasers, since there is a distinct lack of data on the long-term effects of exposure to such powerful electric shocks, a known risk of causing heart attacks, and their use is likely to raise the possibility of violating the prohibition on torture and cruel, inhuman and degrading treatment. BIRW is also concerned about the PSNI use of CS spray and the injuries that it can cause, especially when used against children and in confined spaces. Our concerns are further elaborated in Annex 1.

4.6 Plastic bullets continue to be deployed by the PSNI. BIRW is opposed to the deployment of plastic bullets because we regard them as lethal weapons that should have no place in the policing of a democratic society in the twenty-first century. Although intended as a non-lethal weapon, seventeen people have died as a result of the use of rubber and plastic bullets between 1970 and 2005: 14 of these were caused by plastic bullets. We also have concerns about the current use of a ‘shoot-to-kill’ policy by UK police forces, which is both open to abuse and has already resulted in tragedy: see further Annex 1.

4.7 According to paragraph 15(a) of HRC Resolution 5/1[18], states are encouraged to prepare the information they submit to the Universal Periodic Review mechanism “through a broad consultation process at the national level with all relevant stakeholders”. BIRW is concerned that, as an interested stakeholder and relevant national human rights institution, it has not been approached by the UK Government and asked to participate in such consultation nor, as far as we are aware, has the Government approached other similar NGOs. Nevertheless, we are co-ordinating with other concerned NGOs and endeavouring to persuade the Government to engage in as broad a consultation process as possible.


Submission to the United Nations Human Rights Council’s Universal Periodic Review Mechanism Concerning the United Kingdom: Annex 1

British Irish Rights Watch Submission to the United Nations Human Rights Committee Concerning the United Kingdom’s Compliance With the International Covenant on Civil and Political Rights, September 2007

1. INTRODUCTION

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 free of charge 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 This submission to the Human Rights Committee of the United Nations concerns the United Kingdom’s observance of the provisions of the International Covenant on Civil and Political Rights (ICCPR). All our comments stem directly from our work and experience. In the interests of brevity, we have kept details to a minimum, but if any member of the Committee would like further information about anything in this submission, we would be happy to supply it. Throughout the submission we respectfully suggest questions that the Committee may wish to pose to the United Kingdom (UK) during its examination of the UK’s sixth periodic report.

2. THE UNITED KINGDOM AND HUMAN RIGHTS

2.1 In its 2001 examination of the United Kingdom’s observance of the provisions of the ICCPR, the Human Rights Committee recommended that the United Kingdom incorporate all the provisions of the ICCPR into domestic law[19]. However, the UK has yet to comply with this recommendation.

Suggested question:

  • What plans does the UK have for incorporating all provisions of the ICCPR into domestic law and what is the timetable?

2.2 The Human Rights Committee’s last examination of the UK’s observance of the provisions of the ICCPR further recommended that the UK should consider, as a priority, accession to the first Optional Protocol[20]. The UK has not however taken any steps to meet this recommendation, thereby depriving people within the UK of the right of individual petition to the Human Rights Committee.

Suggested question:

  • What plans does the UK have for ratifying the Optional Protocol and what is the timetable?

2.3 In October 2000, the UK enacted the Human Rights Act 1998 (HRA), which was intended to incorporate most of the provisions of the European Convention on Human Rights (ECHR) into its domestic law. Due to the similarity of many of the provisions of the ECHR and ICCPR, the Human Rights Committee found that, through the HRA, the UK has also incorporated many ICCPR rights into its domestic legal order[21]. However, the House of Lords has recently held that, instead of incorporating the ECHR rights into domestic law, the HRA merely gives effect to these rights in domestic law[22]. Therefore, the UK courts do not have to apply the HRA retrospectively and require the Government to remedy any breach that occurred prior to the coming into force of the HRA in October 2000[23]. Individuals who have claims for violation of their human rights arising from incidents before 2 October 2000 can therefore not vindicate their rights before the domestic courts. This approach was more recently confirmed in the 2007 House of Lords decision in R (on the application of Hurst) v. Commissioner of Police of the Metropolis[24]. The Court held that, where the positive obligation to protect life has not arisen in domestic law as the death was prior to 2 October 2000, the procedural obligation to investigate the death cannot give rise to a domestic obligation because it is consequential upon the substantive obligation to protect life. Therefore, the requirement set out in section 3 of the HRA – to read and give effect to all legislation, so far as possible, in a way that is compatible with Convention rights – does not mean that public bodies must have regard to Article 2 ECHR and other Convention rights where the death occurred prior to the HRA coming into force. Given the similarity between provisions of the ICCPR and ECHR, this denies individuals the full protection of ICCPR rights.

Suggested question:

  • How will the UK ensure that the provisions of the ECHR are fully incorporated into domestic law and that human rights violations retrospective to the HRA are fully investigated?

2.4 The HRA did not incorporate Article 13 of the ECHR into domestic law, which provides for an effective remedy for breaches of Convention rights.

Suggested question:

  • Will the UK incorporate Article 13 of the ECHR into domestic law?

2.5 Under the terms of the Good Friday peace agreement in Northern Ireland, the UK has established a Human Rights Commission for Northern Ireland, which is currently engaged in drawing up a Bill of Rights to supplement the ECHR. The Commission has produced two draft Bills of Rights, in September 2001 and in April 2004. Although the Commission consulted widely over the first draft, it was flawed, in that it confused majority and minority rights, and appeared to reflect considerable disagreement amongst commission members. By the time the second draft was produced, the Commission had lost public confidence, and the Government felt under no obligation to move the process along. The Commission had effectively become a ‘political football’, lacking meaningful political backing, and coming under attack from unionist politicians which the Government failed to adequately defend. Finally, in September 2006 – some four years after it was proposed – a Bill of Rights Forum consisting of representatives of political parties and civil society was established. This has now agreed terms of reference and has set up a number of working groups on particular aspects of the Bill of Rights. The Forum is due to submit recommendations to the Commission and UK Government in March 2008. However, there are concerns that the Government may be influencing the debate behind the scenes, as the timetable for drafting of the Bill is short and resources are too limited for proper outreach to take place[25].

Suggested questions:

  • How will the Government ensure that the Bill of Rights Forum is best placed to establish an effective Bill of Rights for Northern Ireland?
  • Will the Government guarantee the Forum the necessary resources to conclude its work effectively?
  • Should the Forum require more time to finish its work, will the Government extend the timetable?

2.6 On 3 July 2007, the UK Government revealed details of its route map to constitutional reform, as set out in the Green Paper “The Governance of Britain”[26]. This proposes the creation of “A Bill of Rights and Duties” for Britain, which will draw upon and add to the provisions of the HRA, and therefore the ECHR and its corresponding articles in the ICCPR. It is envisaged that the Bill will give people a clear idea of what they can expect from public authorities, and from each other, and that it will set out a framework for giving practical effect to common values.[27] Conservative party and opposition leader David Cameron, on the other hand, has recently called for the HRA to be entirely scrapped in favour of a British Bill of Rights, which he claims will better balance rights and responsibilities “in a way that chimes with British traditions and common sense”. It is submitted that the establishment of a Bill of Rights for Britain should be encouraged since, as set out in paragraphs 2.3 and 2.4 above, the HRA does not provide for an effective remedy for human rights violations, and the judgments in McKerr and Hurst mean that there is a twin-track system for the vindication of people’s human rights, depending on when the violation occurred. The Government should learn from the Northern Ireland Bill of Rights experience, concentrating as much on the process and timing of the Bill and ensuring proper consultation, as on its content. Furthermore, since the Northern Ireland Bill of Rights has progressed so far, it makes sense for the UK to wait for the outcome of that process before embarking on a British Bill of Rights, so that lessons can be learned from the Northern Ireland experience.

Suggested questions:

  • In relation to a British Bill of Rights, what plans does the UK have for the creation of a successful drafting process and for consultation with relevant stakeholders?
  • Will the UK wait until the Northern Ireland Bill of Rights process is concluded before introducing a British Bill of Rights?

2.7 Since its establishment, the Northern Ireland Human Rights Commission has repeatedly sought an increase in its resources and powers in order to be able to function effectively. Most recently, in response to these requests, sections 14 to 20 of the Justice and Security (Northern Ireland) Act 2007 introduced a number of changes to the Commission’s powers, which are to be welcomed. One of the reforms has enabled the Commission to rely on the ECHR when instituting, or intervening in, judicial review proceedings. However, BIRW is concerned that these changes do not go far enough. Specifically, although the Commission can now have access to places of detention, it must prepare terms of reference in advance and provide them to the relevant affected persons (section 17). This will remove the element of surprise in any investigation, forewarning public bodies of the issues under consideration and, in the worst case scenario, enable documents to be ‘lost’ or destroyed. Thus the ad hoc nature of the Commission’s investigations and the aims of any such investigation are undermined. There are complaints that the process through which its members are appointed to the Commission has become politicised, and that they do not adequately reflect the local community. In addition, the Commission has not been designated a national preventive mechanism under the Optional Protocol to the UN Convention Against Torture (UN OPCAT), which the UK ratified in December 2003 and which came into force on 22 June 2006. This is surprising given the nature of the Commission and its aims and purpose. The procedures through which the UK Government has designated the national preventive mechanisms within Northern Ireland lack transparency and clarity. The criteria for selecting a body or organisation are insufficiently precise, and there has been a marked failure to adequately consult with and consider representations from members of Northern Ireland’s civil society in relation to the Commission’s potential to become a designated mechanism.

Suggested question:

  • Will the UK commit to extending the Northern Ireland Human Rights Commission’s resources and powers and designate it a national preventive mechanism under UN OPCAT?

2.8 In addition to those set out above, the UK has failed to implement many of the recommendations made by the Committee. These will be highlighted under the appropriate article of the ICCPR throughout the rest of this submission.

3. ARTICLE 1: THE RIGHT TO SELF-DETERMINATION

3.1 The island of Ireland has been partitioned since the 1920s, with six counties (Northern Ireland) retained within the UK, while the other 26 form the Republic of Ireland. Irish nationalists have maintained that the people of the island of Ireland have been deprived of the right to self-determination. However, under the terms of the 1998 Good Friday Agreement, the partition will remain until such time, if ever, that a majority of people voting on both sides of the border decide that Ireland should be united. In the 1998 referendum, a large majority of those voting in both countries supported the provisions of the Good Friday Agreement and, although there has been some decline in that support, by and large this situation has pertained to date, especially with the recent re-establishment of the Northern Ireland Assembly.

3.2 In November 2006, the St Andrews Agreement – designed to restore devolution to the suspended Northern Ireland Assembly by 26 March 2007 – was approved by both the House of Commons and House of Lords. Elections to the Northern Ireland Assembly took place on 7 March 2007 and the Assembly was restored on 8 May 2007. Ten areas of government – trade, regional development, culture, social development, environment, finance, education, employment, health and agriculture – have been devolved to the Northern Ireland Assembly. However, there is still a significant number of areas which have not yet been devolved: policing, security, prisons, crime, justice, international relations, taxation, national insurance, and the regulation of financial services, telecommunications and broadcasting. The Government should now ensure that the devolution process continues without delay or derailment, and that the models for devolution of the various bodies are open and transparent, ensure an effective and efficient justice system, represent the diversity of Northern Ireland and deliver the administration of justice to the highest standards, as laid down in international and national human rights law.

Suggested question:

  • What plans does the UK have to ensure a transparent and effective devolution process, resulting in the establishment of public bodies which are fully compliant with the relevant human rights obligations?

4. ARTICLE 2: ENJOYMENT AND ENFORCEMENT OF ICCPR RIGHTS WITHOUT DISCRIMINATION

4.1 The proportion of Protestants of working age in employment in 2003 was 72.5%, whilst the proportion of working-age Catholics in employment was 62.9%. The economic activity rate for those of working age was 76.4% for Protestants and 67.9% for Catholics. In 2003, the unemployment rate for Catholics was 7.2% while for Protestants the figure was 4.8%.[28] It would therefore appear that Catholics are considerably discriminated against in the workplace. The Fair Employment and Treatment (Northern Ireland) Order 1998, as amended, makes it unlawful to discriminate directly or indirectly on the grounds of religious belief and/or political opinion in the field of employment. However, the Order only applies to employers who have eleven or more employees, so small companies are not covered or regulated. In addition, discrimination also persists within the civil service, the largest employer in Northern Ireland. While Catholics are represented in proportion to their numbers in society, in that 44.7% of those employed in the Northern Ireland Civil Service are Catholic, the figure for the percentage of Catholics employed in the Senior Civil Service is 30.4%, a gap of almost 12%.[29]

Suggested question:

  • What steps is the UK taking to overcome higher unemployment rates amongst Catholics in Northern Ireland?
  • Will the UK extend the fair employment provisions to all employers?

4.2 As part of the 1998 Good Friday Agreement, the Government set up an independent review of policing in Northern Ireland, known as the Patten Commission, whose 1999 report made various recommendations. As a result, reforms have been introduced: for example, in November 2001, the force’s name changed from the Royal Ulster Constabulary (RUC) to the Police Service of Northern Ireland (PSNI), and a policy of recruiting at least 50% of all new serving officers from the Catholic community was adopted. However, significant discrimination issues still exist. Although Catholics constitute around 44% of the population, they make up only 21% of the PSNI[30]. As of 1 January 2007 there were 2,156 Catholic PSNI staff, of whom 1,677 (78%) were police officers and 489 (19%) were support staff[31]. Figures issued by the Northern Ireland Office in late 2006[32] disclosed that only about 36% of applications to join the PSNI come from Catholics; this figure has been fairly static since the 50:50 Catholic:non-Catholic recruitment policy was introduced in 2001. In the most recent round of recruitment, there were 3,136 applications from Catholics, but only 1,734 (55%) of these came from Northern Ireland Catholics[33]. This suggests that nearly half of Catholic applications come from residents of other countries. While other Catholic communities in Northern Ireland should of course be reflected in the PSNI, they should not be counted for the purposes of redressing the indigenous imbalance in Catholic representation within the PSNI. What is more, the 50% quota does not apply to support staff, but only to serving officers. Further, although new recruits take an oath of office when joining the police, they are not barred from being members of the Loyal Orders[34] whilst serving as a police officer. These Orders have oaths of allegiance which directly contradict the PSNI oath of office. Existing members of the PSNI do not have to take the oath of office. This gives rise to concerns that the PSNI has not taken any significant steps to eradicate sectarianism within its own ranks.

Suggested questions:

  • What steps is the UK taking to ensure that the PSNI reflects the whole community in Northern Ireland?
  • What steps are being taken to ensure that the PSNI eradicates sectarianism within its ranks?
  • What steps are being taken to ensure that the PSNI is able to deliver effective policing equally to all sections of the community, free from discrimination and sectarianism?

4.3 BIRW is aware that the police in Northern Ireland have awarded contracts for building works etc to known paramilitaries. Correspondence with the PSNI over this matter has not elicited any adequate explanation as to how it possible for this to happen[35]. Recently, a civilian PSNI employee was charged with passing information obtained from police computers to paramilitaries[36]. This man had passed standard vetting procedures designed to screen out such undesirable employees.

Suggested questions:

  • Will the Government review its vetting procedures to ensure that paramilitaries are not able to work for the PSNI, whether as contractors or employees?
  • Will the Government seek an explanation from the Policing Board as to why PSNI vetting procedures have failed?

4.4 As explained in paragraphs 2.1 and 2.4 above, the UK’s failure to incorporate the ICCPR or Article 13 ECHR means that there is no specific remedy in UK law for breaches of ICCPR or ECHR rights.

5. ARTICLE 3: EQUAL RIGHTS OF MEN AND WOMEN

5.1 Women continue to be seriously under-represented at the senior levels in the public sector in Northern Ireland.

Suggested question:

  • What steps is the UK taking to ensure appropriate numbers of women in senior posts in the public sector?

6. ARTICLE 4: DEROGATION

6.1 The Human Rights Committee’s 2001 concluding observations recommended that any measures to combat terrorism undertaken by the UK should be in full compliance with the provisions of the ICCPR and the provisions on derogation contained in Article 4[37]. However, since 2001, the UK has enacted vast amounts of legislation with the aim of countering terrorism, creating a twin-track system of justice with fewer due process rights for certain suspects and defendants determined by the supposed motivation for their acts. This legislation perpetuates the so-called emergency laws enacted in response to the conflict in Northern Ireland. Yet there is no state of emergency in Northern Ireland, or elsewhere in the UK, and such laws are unjustified. The legislation is considered in more detail in sections 9 and 10.

7. ARTICLE 5: ACTS DESTRUCTIVE OF RIGHTS

7.1 Research by NGOs, including by BIRW, and by state agencies such as the Police Ombudsman, has exposed systematic collusion between members of the army, the police and the intelligence services and both loyalist and republican paramilitaries. Collusion has evolved over almost forty years in Northern Ireland, reaching ever-greater levels of sophistication. It has occasionally been the result of collaboration between members of the security forces acting on their own initiative, but has more often been the direct result of government policies, such as:

  • the recruitment of local, part-time members of the Ulster Defence Regiment with known loyalist sympathies;
  • an aim of infiltrating the IRA at all costs, to the point where the need for intelligence has overridden the duty to protect life; and
  • the facilitation of the purchase of illegal weapons, in breach of the then government’s own trade embargo with South Africa, for use by loyalist paramilitaries, whose capacity to commit murder increased significantly as a result.

Far from taking rigorous measures to stem collusion, however, the UK Government has appeared to condone it by a series of official cover-ups, the failure to publish reports on collusion, the failure to prosecute known agents of collusion, and the use of Public Interest Immunity certificates at trials and inquests to withhold information concerning collusion.

Suggested questions:

  • What steps is the UK taking to prevent collusion between members of the security forces and paramilitaries, and to protect victims of that collusion?
  • What steps is the UK taking to establish the extent of past collusion and to provide effective remedies for victims of collusion?

7.2 In January 2007, the Police Ombudsman for Northern Ireland (PONI) published a report of her extensive investigation into the circumstances surrounding the death of Raymond McCord Junior in 1997. The report provided a summary of the investigation that had been named “Operation Ballast”. Although the inquiry had begun as a result of allegations of collusion between police officers and loyalist paramilitaries into the murder of a single individual, it led PONI to consider the murders of 10 people and 72 instances of other crime, including 10 attempted murders, 10 “punishment” shootings, 13 “punishment” attacks, a bomb attack, 17 instances of drug dealing, and additional criminality, including criminal damage, extortion and intimidation. The investigation disclosed institutionalised and systemic collusion between the police and loyalist paramilitaries as recently as 2003. Many of the findings gave rise to concerns about current serving officers and practices.

7.3 Some of the most serious concerns included evidence of a pattern of work by certain officers within the Special Branch (the intelligence wing) of the RUC designed to ensure that an informant and his associates were protected from the law. These included a series of instances when Special Branch officers took steps to ensure that police informants who had committed a crime were protected from other police officers investigating those crimes and from other agencies within the criminal justice system; reports of informants being “babysat” through interviews to help them avoid incriminating themselves; the creation of false interview notes; the blocking of house searches to locate arms held by the Ulster Volunteer Force (UVF, a loyalist paramilitary group) and the blocking of a search of a UVF arms dump for no valid reason; the preparation of misleading information for the Director of Public Prosecutions; and the withholding of vital intelligence likely to have assisted in the investigation of serious crimes, including murder, from police investigation teams. In particular, collusion was established between certain officers within Special Branch and a UVF unit in North Belfast and Newtownabbey. “Prior to 2003 some RUC/PSNI Special Branch officers facilitated the situation in which informants were able to continue to engage in paramilitary activity”[38], including some informants being involved in murder, without the Criminal Investigation Department having the ability to deal with them for some of these offences.

7.4 Although police practices have changed since 2003, no explanation has been provided for the fact that, in a major review of police informers, the current Chief Constable does not appear to have pursued charges against the 12% of informers who were ‘dropped’ at that time because of their alleged involvement in serious criminal activity. It is not clear whether any criminal charges were considered with regard to the police handlers of those informers considered to have been engaging in serious criminal activity.

Suggested questions:

  • What steps is the UK taking to end the legacy of impunity as a result of the UK authorities’ failure to instigate prompt, independent, impartial and effective investigations?
  • How many police officers have been charged with criminal offences arising out of collusion, how many were disciplined or prosecuted, and what was the outcome?

8. ARTICLE 6: THE RIGHT TO LIFE

8.1 To date, over 3,600 people have died as a result of the conflict in Northern Ireland, including over 1,100 members of the security forces. The majority of deaths (87%) were caused by republican and loyalist paramilitaries, while 10% were caused by the security forces, many of them in disputed circumstances. According to our calculations, 82% of those killed by the security forces were Catholics, although Catholics represent only around 40% of the population of Northern Ireland.

8.2 One of the most serious violations of the right to life has concerned the operations of a British army intelligence unit, the Force Research Unit (FRU), which functioned in Northern Ireland between 1980 and 2007 (having changed its name to the Joint Support Group in or about 1991 – the JSG is currently operating in Iraq). In recent years, information about its activities has gradually come to light. It is alleged that FRU infiltrated agents into paramilitary groups and assisted those groups to target people for murder. They are also said to have allowed bombings and shootings to go ahead, resulting in more deaths, in order to protect their agents from discovery. It is further alleged that they caused the deaths of paramilitaries by falsely identifying them as informers. The following have been identified as victims of the FRU’s methods:

  • Patrick Hamill, killed in September 1987,
  • Francisco Notorantonio, killed in October 1987,
  • John McMichael , killed in December 1987,
  • Terence McDaid killed in May 1988,
  • Gerard Slane, killed in September 1988,
  • Patrick Finucane, killed in February 1989,
  • Patrick McKenna and Brian Robinson, killed in September 1989,
  • Eddie Hale, Peter Thompson and John McNeill, killed in January 1990,

although there were almost certainly many other victims besides these 11 men.

      8.3 In response to wide international and local criticism about the lack of investigation of these and other high profile deaths, the UK Government has now established inquiries into the murders of Rosemary Nelson

[39]

      , Billy Wright

[40]

      and Robert Hamill

[41]

      , all of which concerned allegations of collusion. Yet the investigations into the latter two murders have controversially been converted into inquiries under the Inquiries Act 2005. BIRW consider that the Inquiries Act undermines the rule of law, the independence of the judiciary and human rights protection, and therefore fails to provide for effective, independent, impartial or thorough public judicial inquiries into serious human rights violations. This is because, instead of inquiries being under the control of an independent judge, they are controlled in all important respects by the relevant government minister. Under the Act, the Minister:

      • decides whether there should be an inquiry
      • sets its terms of reference
      • can amend its terms of reference
      • appoints its members
      • can restrict public access to inquiries
      • can prevent the publication of evidence placed before an inquiry
      • can prevent the publication of the inquiry’s report
      • can suspend or terminate an inquiry
      • can withhold the costs of any part of an inquiry which strays beyond the terms of reference set by the Minister.

Suggested question:

      • Will the UK repeal the Inquiries Act 2005?

8.4 The UK Government still has yet to establish an inquiry into the death of Patrick Finucane, a human rights lawyer from Belfast, who was shot dead in February 1989 by loyalist paramilitaries. Substantial and credible allegations of state collusion have since emerged, including evidence of criminal conduct by police and military intelligence officers acting in collusion with members of the UDA. Allegations of a subsequent cover-up have implicated government agencies and authorities, including the RUC Special Branch, FRU, the UK security service (MI5), and the Office of the Director of Public Prosecutions in Northern Ireland. It has also been alleged that his killing was the result of state policy. In 1999, Sir John Stevens (now Lord Stevens), a senior UK police officer, conducted an investigation into the allegations of collusion made in the case of Patrick Finucane (known as Stevens 3), and particularly those made in a 1999 report by BIRW. A summary overview of Stevens’ findings was not published until 2003. It found that there was evidence of collusion in the murder and in another murder, that of Brian Adam Lambert. It also confirmed the existence of the British Army’s secret intelligence unit known as the FRU, which had actively colluded with loyalist paramilitaries in targeting people, including Patrick Finucane, for assassination. However, the full findings of the Stevens 3 investigation have never been made public.

8.5 In 2003, the European Court of Human Rights ruled that “proceedings following the death of Patrick Finucane failed to provide a prompt and effective investigation into the allegations of collusion by security personnel”, and that there had therefore been a violation of Article 2 ECHR.[42] The UK Government announced in 2004 that there would be an inquiry into the Finucane case, following an independent investigation into the case by former Canadian Supreme court judge Peter Cory, who recommended an independent public inquiry into the case. However, the UK Government still has not established an inquiry, in breach of the commitment it gave in the Weston Park Agreement to implement Judge Cory’s recommendations. Even more worryingly, in 2006, the Secretary of State for Northern Ireland stated that a Finucane inquiry would only be constituted under the Inquiries Act 2005. The UK authorities also stated that it was likely that a large proportion of the evidence would be considered in private since it involved issues “at the heart of the national security infrastructure in Northern Ireland”. The Finucane family and NGOs have rejected any such inquiry. In addition, on 26 June 2007, the Prosecution Service announced that they would not be charging any policemen or soldiers as a consequence of the Stevens 3 report. This denies justice to the Finucane family and other victims of collusion.

Suggested question:

      • Will the UK set up an independent judicial inquiry into the murder of Patrick Finucane and the activities of the FRU?

8.6 The UK is particularly weak when it comes to providing an effective investigation, especially where there has been a violation of the right to life. In May 2001, the European Court of Human Rights issued four landmark judgments[43] which affirmed the right to an effective investigation into deaths caused by agents of the state or where collusion was alleged. The UK has not implemented these judgments and these four cases have remained under consideration by the Committee of Ministers ever since. One of the applicants, the son of Gervaise McKerr, who was killed by the RUC in a shoot-to-kill incident in 1982, applied to the domestic courts to vindicate his right to an effective investigation. This led to the House of Lords decisions in In re McKerr[44], explained in more detail at paragraph 2.3 above, that the UK courts do not have to apply the HRA retrospectively or remedy any human rights violation that occurred prior to the coming into force of the HRA in October 2000[45], followed by the decision in R (on the application of Hurst) v. Commissioner of Police of the Metropolis[46]. Individuals who have claims for violations of their human rights arising from incidents before 2 October 2000 can therefore not vindicate their rights before the domestic courts. This denies victims of the most fundamental of human rights violations an effective investigation into the breach, in flagrant contravention of the UK’s international human rights obligations. The UK has thus failed to comply with the Committee’s 2001 recommendation that the UK should as a matter of urgency implement the measures required to ensure a full, transparent and credible accounting of the circumstances surrounding violations of the right to life in Northern Ireland[47].

Suggested question:

      • What steps is the UK taking to ensure that ALL human rights violations, including those occurring prior to October 2000, are fully investigated?

8.7 In 2006, the PSNI established the Historical Enquiries Team (HET), whose sole job is to re-examine all deaths attributable to the security situation in Northern Ireland between 1968 and 1998. Whilst we welcome the establishment of this body, we have concerns that the HET will not provide Article 2 ECHR compliant investigations. The HET answers to the Chief Constable of the PSNI, thus eroding its independence, combined with the fact that the HET is subject to the jurisdiction of HM’s Inspectorate of Constabularies, currently headed by Sir Ronnie Flanagan. He was a serving RUC officer for over thirty years, eventually becoming Chief Constable of the RUC, and presided over some of the worst acts of collusion, as recently exposed by the Police Ombudsman’s report into the murder of Raymond McCord Jnr. The Council of Europe Committee of Ministers has confirmed this view, stating:

“In particular, the establishment of the Historical Enquiries Team, especially designed for re-examining deaths attributable to the security situation in Northern Ireland during ‘the Troubles’[48] and containing a unit solely staffed with officers from outside the PSNI, seems encouraging. It is clear however, that it will not provide a full effective investigation in conformity with Article 2 in ‘historical cases’ but only identify if further ‘evidentiary opportunities’ exist.”[49]

8.8 BIRW has concerns that seven cases are currently being withheld from HET investigation by the PSNI, despite the fact all these cases fall under the HET’s remit[50]. There are also concerns about the co-operation between the HET and Police Ombudsman. The overlap which exists should ideally provide a holistic and complete investigation into conflict-related deaths. In reality, however, we fear that there may be cases which the HET has investigated, only for the case to be re-investigated by the Police Ombudsman, or vice versa, causing unnecessary trauma to families. We hope that these issues can be overcome by excellent liaison and co-operation between the agencies, although without any compromise of the Police Ombudsman’s independence. However, we are concerned that as yet no memorandum of understanding has been concluded between the two agencies.

Suggested questions:

      • What steps will the UK take to ensure that investigations by the HET are compliant with Article 2 ECHR and the corresponding obligations under the ICCPR?
      • What is the UK doing to ensure that the work of the Police Ombudsman and that of the HET complement one another?

8.9 Plastic bullets continue to be deployed by both the police and the army in Northern Ireland. BIRW is opposed to the deployment of plastic bullets because we regard them as lethal weapons that should have no place in the policing of a democratic society in the twenty-first century. Although intended as a non-lethal weapon, seventeen people have died as a result of the use of rubber and plastic bullets between 1970 and 2005: 14 of these were caused by plastic bullets. Nine of the seventeen victims were aged 18 or under, the youngest being 10 years old. Six of the victims did not die immediately but lingered for between one and fifteen days. Plastic bullets have also caused very serious injuries and permanent disabilities such as blindness.

8.10 In 21 June 2005, surrounded by controversy, the attenuating energy projectile (AEP), was brought in to replace the plastic bullet, following research commissioned by the Northern Ireland Office to search for a less lethal alternative to the plastic bullet, as recommended by the Patten Commission on police reform. As the Oversight Commissioner whose office was established to oversee the Patten reforms has commented[51], the AEP is not an alternative, but simply a different type of plastic bullet. The Defence Scientific Advisory Council’s sub-committee on the Medical Implications of Less-Lethal Weapons (DOMILL) has concluded that the risk of an AEP impact to vulnerable areas such as the head, chest or abdomen “will not exceed” that of the previous plastic bullet. In other words, in these respects, the AEP is no safer. Further, there was no consultation exercise prior to the introduction of AEPs.

8.11 Regrettably, AEPs were used within three weeks of their introduction, after an unofficial moratorium on the use of plastic bullets which had lasted for nearly three years. Twenty-one AEPs were fired on 12 July 2005 in Ardoyne, and a further eleven on 4 August 2005 in Woodvale in north Belfast, all of them by the police[52]. A very large number of AEPs were also fired over the period 11 to 13 September 2005, during serious rioting following a ruling by the Parades Commission that the Orange Order’s Whiterock parade be re-routed. Of a total 281 AEPs fired between July and September 2005 by the police, 211, or 75%, hit their mark. It is not known how many injuries were caused and it is also not known how many persons were hit by a further 140 AEPs fired by the army. Guidelines on the use of AEPs provide that they may only be fired in situations of serious public disorder, to reduce the risk of loss of life or serious injury. Officers are trained to use the belt-buckle area as the point of aim at all ranges, thus mitigating against “upper body hits.”[53] Unfortunately, this guidance does not mitigate the possibility of striking the abdomen or the genitals. Further, the guidance provides that, unless there is a serious and immediate risk to life, use at under one metre or aiming the weapon to strike a higher part of the body at any range is prohibited. Yet a range of only one metre is exceptionally close and must increase significantly the potential to cause injury. The guidelines also specifically recognise the fact that AEPs can cause fatalities[54] and that they can ricochet and thus have the potential to harm others apart from the intended target[55]. In 1998, the United Nations’ Committee against Torture again found “the continued use of plastic bullet rounds as a means of riot control” to be a matter for concern, and recommended their abolition[56]. In 2002, the United Nations’ Committee on the Rights of the Child said;

“The Committee is concerned at the continued use of plastic baton rounds as a means of riot control in Northern Ireland as it causes injuries to children and may jeopardize their lives.”

It too urged the abolition of plastic bullets.[57]

Suggested question:

  • Will the UK discontinue the use of plastic bullets?

8.12 The current use of a ‘shoot-to-kill’ policy by UK police forces is both open to abuse, and has already resulted in tragedy. Following the fatal shooting of Jean-Charles de Menezes on 22 July 2005 by the Metropolitan Police Service (Met), BIRW has been researching the use of a ‘shoot-to-kill’ policy by UK police forces, specifically the Met. The killing of de Menezes was sanctioned by a policy known as Operation Kratos. This policy is, in the words of the Met, the “operational name for a wide range of tactics used by the MPS (Metropolitan Police Service) to protect the public from the potential threat posed by a suicide bomber”. BIRW used the Freedom of Information Act 2000 to obtain information about Operation Kratos and how it is used by the Met. Although the Met has consistently denied the existence of a shoot-to-kill policy, a Metropolitan Police Authority Memo dated 8 August 2005 obtained by BIRW states, “This is a national policy which was adopted by ACPO centrally and ratified in 2003. It is known as Operation Kratos. ‘Shoot-to-kill’ is a vernacular term which the police themselves prefer not to use.” The Met indicate that a shot to the head, a key component of Operation Kratos, is not intended to kill the suspect but only incapacitate him or her. Yet a single shot to the head is almost certain to result in death, if not serious brain injury, while multiple shots to the head, as were employed in the case of Jean-Charles de Menezes, will inevitably result in a fatality.

8.13 The use of lethal force by the UK police has resulted in the deaths of innocent individuals, in direct violation of international human rights standards. In each of these incidents, none of those killed was armed or posing any threat at the time of his death. IRA member Diarmuid O’Neill was shot and killed in a Hammersmith hotel in London by police in 1996. He was unarmed, overcome by CS gas, and trying to surrender when he was killed. Harry Stanley was shot in 1999 in Hackney, when the table leg he was carrying was assumed by the police to be a sawn-off shot gun. They also assumed he was Irish; in fact, he was Scottish. Neil McConville was killed by police in Northern Ireland in April 2003, following a car chase. False media reports suggested McConville had threatened the police with a gun. There was a gun in his car but no ammunition, and he never attempted to use it. A PONI report on this shooting is imminent and is expected to find serious shortcomings in the intelligence employed in the police operation. In July 2005, Jean-Charles de Menezes was shot in Stockwell on an underground train by plainclothes police officers who mistook him for a suicide bomber. Reports that he had failed to stop when challenged by the police, vaulted the ticket barrier at the underground station, and was wearing unusually bulky clothing for the time of year, all turned out to be false. He was a wholly innocent man. Steven Colwell was shot dead in 2006 by the PSNI in Northern Ireland after the stolen car he was driving apparently failed to stop at a checkpoint. The case is also being investigated by the PONI. The clear links with the case of Neil McConville indicates that lessons have yet to be learnt by the police about the use of lethal force. It is clear that the use of this policy inevitably leads to the abuse of lethal force, and the deaths of innocent people, contrary to Article 2 ECHR, which applies a test of absolutely necessity to the use of force, and Article 6 ICCPR.

Suggested question:

  • Will the UK bring police practice on the use of lethal force into line with international human rights standards?

8.14 In the past, the practice and procedure of inquests in Northern Ireland has fallen far short of the standards laid down by the United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions. Professor Tom Luce conducted a ‘Fundamental Review of Inquests’ in 2003; the subsequent draft Coroners Bill, published for consultation in 2006, attempted to address the reforms recommended by this review. However, the Bill, unlike the Luce review, did not apply to Northern Ireland. We had concerns that, should this Bill have become law, that it would have been applied to Northern Ireland without appropriate consultation. Equally, an application of this Bill to Northern Ireland would have failed to take into account the legacy of 30 years of conflict and the significance of the deep flaws in the Northern Ireland coronial system. In the event, the Coroners Bill was dropped from the legislative programme. While the Northern Ireland Court Service has recently made some administrative reforms to the coronial system, this has not gone far enough to provide investigations which are Article 2 compliant and the Service does not have the power to make the changes necessary to bring this about without any legislative basis.

8.15 One issue which featured in the case of Jordan, McCaughey & Ors[58], was the nature of the verdict which the Northern Ireland Coroner is able to issue. While we acknowledge that the Council of Europe’s Committee of Ministers decided to close the examination of the measures taken in respect of this aspect of the Court’s judgments[59], we respectfully assert that this remains a crucial issue. Cases currently proceeding through the Coronial system, such as the 2003 murder of Danny McGurk – the inquest into which was held in September 2006 – have highlighted the limits of a Northern Irish inquest in both the investigation of deaths, and the closure brought to families and the wider community by the inquest process. In particular, the limits placed on verdicts, the restricted scope of inquests and the absence of legal aid for families all undermine the Coronial system and continue to deny those in Northern Ireland their ECHR Article 2 rights.

Suggested question:

  • Will the UK reform the inquest system to ensure that it is compliant with international human rights standards?

9. ARTICLE 7: FREEDOM FROM TORTURE

9.1 The Chief Constable of the PSNI, Sir Hugh Orde, has recently decided to deploy tasers (electric stun guns) in Northern Ireland. This decision has yet to be authorised by the Policing Board, which oversees the work of the PSNI. BIRW has grave concerns about the potential introduction of tasers. The lack of data on the long-term effects on the body of exposure to electric shocks powerful enough to incapacitate and the known risk of causing heart attacks give rise to significant concern. Tasers also raise the possibility of violating the prohibition on torture and cruel, inhuman and degrading treatment because, as has been vividly demonstrated in a Panorama documentary[60], they inflict intolerable pain. Whilst we accept that the use of force will inevitably inflict some pain on its victims, with tasers the infliction of pain is the means of incapacitating people, rather than a side effect of their use. Furthermore, where other means are used it is possible for the operator to use restraint and to try to avoid inflicting unnecessary pain. However, with a taser, a high level of pain is inevitable. To force another human being to act, or refrain from acting, in a particular way by means of the infliction of pain amounts at the very least to cruel or inhuman treatment or punishment, and may very well be torture.

9.2 Manufacturers of tasers recommend that they should not be fired on anyone with a dysfunctional heart, pregnant women, or small children[61]. This renders them impractical: police officers can have no way of knowing just by looking at someone that s/he has a dysfunctional heart, or has a pacemaker. Similarly, it is not always possible to tell that a woman is pregnant. There is also scope for accidental injury to such persons, and to children, especially in crowds. Tasers can set fire to flammable liquids,[62] including CS spray, which is used by the PSNI. Regrettably, the petrol bomb is still a weapon of choice among Northern Ireland rioters. If tasers were to be deployed, the nightmare spectre arises of demonstrators attacking police officers firing tasers with petrol. We fear that both police officers and demonstrators could be seriously hurt in such circumstances. Elsewhere in the UK, tasers are typically used against deranged persons wielding weapons. While we appreciate that such persons need to be restrained before they harm themselves or others, including, of course, police officers, we are concerned that the administration of powerful electric shocks to deranged persons is a barbaric response which may add to the person’s mental problems and is reminiscent of the worst aspects of electro convulsive “therapy” applied in the past to the mentally ill. In two surveys conducted in America on the use of the M26 Advanced Taser used in a UK trial, over 50% of the persons confronted with the weapon were impaired by alcohol, drugs or mental illness[63]. According to Amnesty International, since 2001, over 150 people have been killed in the USA by tasers. One person, Brian Loan, who had a heart condition died in the UK on 14 October 2006 three days after being struck by a taser[64].

Suggested question:

  • Will the UK ban the use of tasers?

9.3 The Northern Ireland Prison Service (NIPS) is currently deploying PAVA pepper spray in Northern Ireland prisons for a trial period. We are concerned that arming prison officers with an incapacitant spray carries risks to both prison officers and prisoners and also carries the danger that it may be used as a weapon of first rather than last resort, or as a substitute for better, non-violent, methods of prisoner management. We are also concerned that some violent persons are either mentally ill or mentally handicapped and unfortunately end up in confrontations with police or prison officers because of their violence, instead of receiving the medical treatment they require. The use of PAVA may well exacerbate the mental condition of such persons, especially those suffering from paranoid delusions. When PAVA is used as an incapacitant, it is essentially a pepper spray, sprayed into the eyes, and its aim is to incapacitate and/or to obtain compliance by causing acute pain. For that reason, BIRW is opposed to its use in the same way that we are opposed to the use of tasers. The use of PAVA raises the prohibition on torture and cruel, inhuman and degrading treatment because it inflicts intolerable pain.

Suggested question:

  • Will the UK ban the use of PAVA pepper spray?

9.4 In January 2003, the PSNI were authorised by the Policing Board to introduce the use of CS spray. BIRW is concerned about the use of CS spray and the injuries that it can cause, especially when used against children and in confined spaces. In particular, PSNI officers are able to use CS spray within a custody suite, where the effects of such use could well be severe, on police officers as well as suspects. It is also worrying that CS spray is used in alcohol-related incidents where individuals may well be more vulnerable. The high levels of use on drunk individuals point to a need to find a less lethal alternative for controlling violence in such a situation. Changes also need to be made in situations where the time for the decontamination of a prisoner upon whom CS spray had been used is cut short. Where the decontamination of individuals is compromised, officers involved in handling the prisoner may be at an increased risk of contamination. Further, when CS spray was first introduced, it was agreed that the PONI would investigate and report on the appropriateness of each use. This provided the PSNI with a useful oversight mechanism, particularly in cases where the CS spray was used incorrectly. However, this procedure has now changed: the Ombudsman now only investigates the use of CS spray where complaints are raised. In common with tasers, the use of CS spray amounts at the very least to cruel or inhuman treatment or punishment, and may very well be torture.

Suggested question:

  • Will the UK ban the use of CS spray?

10. ARTICLE 9: LIBERTY AND SECURITY OF PERSON

10.1 Since 2001, the UK has enacted a worrying amount of counter-terror legislation. In February 2001, the Terrorism Act 2000 replaced the previous emergency laws, the Prevention of Terrorism (Temporary Provisions) Act, which covered the whole of the UK, and the Northern Ireland (Emergency Provisions) Act, which only applied in Northern Ireland. In 2001, the Anti-Terrorism, Crime and Security Act supplemented this counter-terrorism legislation, followed by the Prevention of Terrorism Act 2005 which, inter alia, introduced the power to make control orders. The following year, a number of new offences were created with the enactment of the Terrorism Act 2006. These offences are commented upon in more detail below at paragraph 10.6.

10.2 In our view, this vast swathe of counter-terror legislation is unnecessary. Terrorism in Northern Ireland, while still a threat, does not entail any activity that cannot be dealt with by the ordinary law, as can acts of terrorism elsewhere in the UK. The counter-terror legislation enshrines in English law a permanent legacy of the so-called emergency laws enacted in response to the conflict in Northern Ireland. It creates a twin-track system of justice with fewer due process rights for certain suspects and defendants determined by the supposed motivation for their acts.

10.3 BIRW has particular concerns about the use of control orders. Control orders are detention without trial. We have seen the use of a similar policy in Northern Ireland in the 1970s: internment without trial. This policy not only violated the right to be free of arbitrary detention, but served to alienate a large section of the Catholic community from both the state and the security forces. We believe that if there is enough evidence to charge individuals and bring them before a court then this should be done; but if there is not enough evidence, then people should be released. The limbo in which suspects exist while subject to control orders creates the potential for the abuse of due process rights. Further, the opportunities for quashing a control order are few. The fact that the application of a control order can be based on secret evidence undermines the ability of the individual and their legal team to rebut the allegations of terrorist activity. Despite the clear indications that control orders are an unsuitable method of addressing a terrorist threat, the UK Government continues to use them as a counter-terrorism measure. Indeed, a ruling in the High Court by Mr Justice Sullivan stated that control orders violated Article 5 ECHR (right to liberty): this ruling was subsequently upheld by the Court of Appeal[65]. In spite of this, the UK Government is now appealing the case. These problems are compounded by the fact that seven individuals, suspected of involvement in terrorist activity and subject to control orders, have absconded.[66]

10.4 While control orders only apply to the individual, the effects are felt by the families of those living under control orders. As the Committee on the Prevention of Torture (CPT) has noted, the criteria of a control order can be such that no pre-arranged meetings without prior authorisation of the Home Office can take place, nor any visits to the individuals’ homes without the interested persons submitting details to the Home Office – both of these equally effect the children and spouses of ‘controlees’. The CPT also voiced concerns about the psychological impact of the control orders on the ‘controlees’, citing conditions such as depression and anxiety with risks of self-harm and suicide.[67]

Suggested question:

  • Will the UK repeal the legislation which provides for the use of control orders?

10.5 The Prevention of Terrorism Act 2005 introduced a 28-day period during which a suspect can be detained without charge. This was a compromise measure after the Government failed to persuade Parliament to agree to a 90-day period. However, the UK Government is again threatening to extend this. Extending pre-charge detention to 28 days already pushed against the boundary of human rights compliant policing. The detention of a suspect for three months without charge can have serious psychological and social implications for both the detainee and their family. It also undermines the fundamental principles of the British legal system such as the presumption of innocence, and the right to a fair trial. In our view, such protracted detention amounts to internment without trial. The Government’s justification for such an extension is that it will enable the police to gather more evidence. BIRW believe that such evidence should be in place before arrest so as to prevent protracted detention or the holding of innocent individuals. Similarly, we do not agree with the Government’s claim that judicial and parliamentary oversight of extended detention would provide suitable safeguards to protect the rights of suspects or the rule of law. The employment of this kind of oversight has not been successful with control orders.

Suggested question:

  • Will the UK abolish prolonged detention without charge?

10.6 The definition of terrorism in the Prevention of Terrorism Act 2005 and the subsequent Terrorism Act 2006 is problematic. The definition of terrorism utilised in the Terrorism Act 2006 is so broad and diffuse that it runs the risk of creating crimes without real victims, an outcome which would bring the law into disrepute. “Terrorism-related activity” includes the commission, preparation, or instigation of acts of terrorism, facilitating such acts, encouraging such acts, and supporting or assisting those who are engaged in such acts. It is “immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally”. “Terrorism” is defined as the use or threat of action designed to influence the government or to intimidate the public or a section of the public the purpose of advancing a political, religious or ideological cause. It includes serious violence against a person, serious damage to property, endangering the lives of others, serious risk to public health or safety, serious interference with or disruption of any electronic system, the use or threat to use firearms or explosives. This definition applies to all countries, peoples and governments throughout the world.

10.7 The objective of most actual terrorism is usually the overthrow of the state, or at least the status quo. That being so, it is crucial that a democratic state does not over-react to terrorism or the threat of terrorism, because to make any of these errors can catapult a state out of democracy and into despotism, creating the very situation that terrorists are seeking to achieve. Terrorism is not an act; it is a description of the motivation of a person carrying out any of a range of acts, many of which, absent the terrorist motive, are perfectly harmless and legal. To give an example from Northern Ireland, a woman who buys a pair of rubber gloves to protect her hands while doing the washing up is behaving perfectly legally. If, on the other hand, she buys them to protect her hands while making a bomb, she commits an offence. The problem for the police and the courts is how to prove that the mere act of purchasing the gloves was illegal.

Suggested question:

  • Will the UK revisit its approach to countering terrorism and review all its anti-terrorism legislation with a view to enduring that it is proportionate to the actual threat posed by terrorism and that it does not undermine human rights or fundamental freedoms?

11. ARTICLE 14: THE RIGHT TO FAIR TRIAL

11.1 Those tried under the Terrorism Act in Northern Ireland used to be dealt with in special courts known as the Diplock courts. These courts employed lower standards of admissibility of confession evidence than the ordinary courts and sat without a jury. Both factors militated against a fair trial. However, on 1 August 2005, the Northern Ireland Office announced that the Diplock courts were to be phased out, as part of the normalisation process. The Diplock courts were abolished in 2007. However, Diplock style courts will still be used where certain circumstances exist. The Director of Public Prosecutions can decide that exceptional cases should be tried without a jury if there is a risk of jurors being intimidated. This situation is likely to arise less and less frequently in Northern Ireland, as sectarian tension and security concerns diminish. In our view, the solution to this problem is to provide adequate safeguards for jurors, not to do away with the jury. In the absence of a jury, a single judge acts as the tribunal of both fact and law. This leads to a quite untenable situation when the admissibility of a confession is being contested. Although a jury would be excluded from hearing the arguments as to the validity of the confession and the means by which it was obtained, the judge both hears and adjudicates them. This is a clear breach of the right to a fair trial. In 2001, the Committee expressed concerned about the continued use of juryless courts[68].

Suggested question:

  • Will the UK abolish the use of juryless courts in all situations where a jury would normally sit?

11.2 In 2007 the UK intends to transfer responsibility for all counter-intelligence operations from the PSNI to the intelligence service, MI5. MI5 is a secretive organisation which goes to great lengths to protect its operatives and methods from identification or public scrutiny. Although MI5 will work jointly with the PSNI in counter-terrorism cases, while the actions of police officers will come under the independent, public scrutiny of the Police Ombudsman, those of MI5 agents will not come any scrutiny at all.

Suggested question:

  • Will the UK undertake to put in place a mechanism for the independent public scrutiny of the activities of MI5 agents?

12. ARTICLE 17: PRIVACY, FAMILY LIFE AND REPUTATION

12.1 People living in Northern Ireland continue to be subjected to an exceptionally high level of surveillance. In the past, sophisticated visual and audio devices have been used to track the movements of individuals and to listen to conversations inside homes and vehicles as well as in public places. Large amounts of intelligence are collated on people, often in the absence of any suggestion that they are involved in any illegal activity, and stored on computers. Innocent people have found themselves labelled as terrorists when stopped by, for example, traffic police in other countries. There have been many incidents, including recently, of people who were unaware that there was a file on them being visited by the police and warned that information about them has found its was into the hands of terrorists.

Suggested question:

  • What steps is the UK taking to reduce surveillance of the population in Northern Ireland and to destroy intelligence files on individuals?

12.2 Evidence has recently come to light that detainees’ consultations with their lawyers whilst in the Serious Crime Suite at Antrim Police Station have been the subject of covert surveillance. Similarly, there are concerns that covert surveillance of such consultations in prison has occurred, and also the surveillance of a medical consultation by an independent medical professional, carried out in custody.[69] A number of potential victims of such surveillance have recently sought a declaration from the PSNI and the Prison Service that their consultations were not the subject of covert surveillance. The application was heard in June 2007 but judgment has not yet been delivered. The central issue in the case is whether the Applicants’ right to a private consultation, as confirmed in statute and in the Prison Rules, can be overridden by the legislation which provides for surveillance, the Regulation of Investigatory Powers Act 2000 (RIPA). The case raises fundamental questions about the principle of legally privileged information and the protections afforded such information. In addition, the use of evidence gained by listening to such conversations would be disproportionately advantageous to the prosecution, and undermine the right to a fair trial. Intercepted communications between suspects and their lawyers should never be admissible as evidence.

Suggested question:

  • What steps will the UK take to ensure that intercepted communications between suspects and their lawyers are never admissible as evidence?

12.3 The UK Government is currently proposing to introduce further counter-terror legislation and is engaged in a consultation process to that effect. One of the proposed measures is the use of intercepted communications as evidence against a suspect during trial. Given that terrorists can avail themselves of the benefits of modern technology, on the face of it there is an argument for giving the prosecution equality of arms. However, careful attention needs to be paid to the human rights implications of covert surveillance, in particular its impact on the privilege against self-incrimination, which forms an important element of the right to a fair trial. Care also needs to be exercised in targeting suspects for such surveillance, because of its impact on the right to a respect for privacy, not only of the suspects but of third parties. Intelligence gathering of this sort should not be used to build databases on people who are not involved in terrorism, and records engendered in the course of combating terrorism that involve innocent persons should be destroyed at the earliest opportunity. The use of intercepted telephone communications as evidence should be the subject of keen safeguards, with a rigorous system for approval. We believe that the use of interception should be kept to a minimum and be subject to regular review. The aim should be to remove them at the earliest opportunity. A system which enables individuals to find out if their telephones or other means of communication, such as email, are tapped, and to subsequently challenge such surveillance, should be put in place and must be robust and transparent.

Suggested question:

  • What plans does the UK have to ensure that the use of intercepted communications as evidence meets the relevant human rights standards?

12.4 If intercepted communications are to be allowed in evidence, then so too must information about how such evidence was obtained, in order that the defence may challenge evidence that was gathered improperly. The use of intercepted material which is shrouded in secrecy because of an alleged need to protect sources and methods is not acceptable. The current legislation governing covert surveillance – Regulation of Investigatory Powers Act 2000 (RIPA). Under this legislation, a person who believes, for example, that his or her telephone is being tapped without cause, can make a complaint. However, the only outcome of the complaint is that s/he will be told that the authorities cannot confirm or deny that the telephone is being tapped, but can assure the complainant that, if it is being tapped, then the tapping is in compliance with the law. There is no mechanism for having the interception stopped.

Suggested question:

  • Will the UK review the provisions of the Regulation of Investigatory Powers Act 2000 and ensure it complies with international human rights laws?

12.5 In the past, BIRW has drawn the Committee’s attention to the widespread practice on the part of the police of identifying defence lawyers with the alleged crimes and causes of their clients, in contravention of the Basic Principles on the Role of Lawyers. While there have been significant improvements in this area, following the 1997 mission by the Special Rapporteur on the independence of judges and lawyers, whose recommendations have mostly been belatedly implemented, we continue to have some concerns. The interception of lawyer’s consultations with their clients referred to above has done considerable damage to the relationship between lawyers and the police, as has the failure to hold an independent public inquiry into the murder of Patrick Finucane. Recently, we were disturbed to learn of an unprovoked assault on a defence lawyer by two police officers who apparently disapproved of his involvement in a particular criminal case.

Suggested question:

  • What steps is the UK taking to ensure that defence lawyers are supported in their role as an integral part of the criminal justice system?

13. ARTICLE 19: FREEDOM OF EXPRESSION

13.1 Section 1 of the Terrorism Act 2006 introduced the offence of “encouragement of terrorism”. This is an extremely vague offence. It is virtually impossible to prove that someone “knows or believes”, still less “has reasonable grounds for believing”, anything. It is harder still to prove that someone publishing a statement knows or believes what the general public’s understanding of that statement will be, especially when that understanding can encompass indirect threats. Similarly, section 2 makes it a crime to “disseminate terrorist material.” Banning the publication of terrorist publications is futile, given the existence of the internet. While it may be possible to make a case for banning literature that describes how to kill and maim people, the interaction of this section with that on the encouragement of terrorism could lead to draconian consequences, and violate the right to freedom of expression.

Suggested question:

  • Will the UK repeal the provisions of the Terrorism Act 2006 relating to the encouragement of terrorism and dissemination of terrorist material?

14. ARTICLE 22: FREEDOM OF ASSOCIATION

14.1 Under section 3 and Schedule 2 of the Terrorism Act 2001 and section 28 of the Terrorism Act 2006, membership of 46 organisations is proscribed. 14 of those proscriptions relate to Northern Ireland. 7 of these are republican groups: the Irish Republican Army, the Irish National Liberation Army, Cumann na mBan, Fianna na hEireann, Soar Eire, the Continuity Army Council and the Irish People’s Liberation Organisation. The other 7 are loyalist groups: the Red Hand Commando, the Ulster Defence Association, the Ulster Freedom Fighters, the Ulster Volunteer Force, the Loyalist Volunteer Force, the Orange Volunteers and the Red Hand Defenders. The other 21 groups on the list are all based outside the UK. Membership of proscribed organisations is a criminal offence, as is canvassing support or fund-raising on behalf of such a group. In our view, proscription is in itself anti-democratic and is largely counter-productive. Proscribing organisations and prosecuting their members drives them underground and increases their allure. For example, when the UDA was eventually banned the media reported that its membership increased considerably. Membership is difficult to prove and prosecutions on such a basis are open to abuse. Proscription may also breach the right to freedom of expression and to freedom of association.

Suggested question:

  • Will the UK repeal the provisions of the Terrorism Acts 2000 and 2006 relating to proscription?

15. ARTICLE 25: DEMOCRATIC RIGHTS

15.1 As set out in paragraph 3.2 above, in November 2006, the St Andrews Agreement – designed to restore devolution to the suspended Northern Ireland Assembly by 26 March 2007 – was approved by both the House of Commons and House of Lords. Elections to the Northern Ireland Assembly took place on 7 March 2007 and the Assembly was ultimately restored on 8 May 2007. Ten areas of government – trade, regional development, culture, social development, environment, finance, education, employment, health and agriculture – have been devolved to the Northern Ireland Assembly. However, there is still a significant number of areas which have not yet been devolved but have been reserved to the UK Parliament: policing, security, prisons, crime, justice, international relations, taxation, national insurance, and the regulation of financial services, telecommunications and broadcasting. In these areas, Article 25 is violated by this system of direct rule by the UK Government, which is exclusive to Northern Ireland. It deprives democratically elected Members of the Northern Ireland Assembly of the rights enjoyed by their counterparts elsewhere in the UK to debate and amend legislation, in turn disenfranchising the electorate of their right to participate fully in public affairs.

Suggested question:

  • What plans does the UK have for devolving currently reserved powers to the Northern Ireland Assembly?

Submission to the United Nations Human Rights Council’s Universal Periodic Review Mechanism Concerning the United Kingdom: Annex 2

British Irish Rights Watch Submission to UK Government Consultation Regarding Proposed Counter Terror Legislation, August 2007

1. INTRODUCTION

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 free of charge 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 We welcome this opportunity to make a submission to Government concerning their proposals for new counter-terrorism legislation. We have only commented on the human rights implications of the proposed counter-terrorism measures which fall directly under our remit.

1.3 In Part I of our submission, we explore the options for pre-charge detention; the offence of acts preparatory to terrorism; the role of post charge questioning; the use of intercept evidence; the use of supergrasses and the threshold test and some counter-terrorism options proposed by the Government. In Part II, we examine the issues of disclosure in relation to suspected terrorist financing; measures in relation to DNA of terrorism suspects; data sharing powers and the collection of information likely to be of use to terrorists. We then consider the proposed introduction of enhanced sentences; notification requirements; the use of control orders; the suggestion of a police power to hold passports and the transfer of functions to the Advocate General (Northern Ireland). We have attached our response to the Second report of the independent reviewer pursuant to section 14(3) of the Prevention of Terrorism Act 2005, Lord Carlile of Berriew, for reference.

1.4 British Irish rights watch have been observing the development of counter-terrorism legislation since 1990. Our experience from Northern Ireland suggests that only three mechanisms can effectively combat terrorism. The first is preventative, and therefore preferable: the collection of accurate intelligence and the proper use of that intelligence to prevent attacks. The second is deterrent: the effective detection of crime. The third is the most valuable of all: political resolution. The clearest lesson we have drawn from our experience is that draconian and repressive legislation does not decrease the threat of terrorism. The aim of any government, facing such a threat, should be to enhance the protection of human rights. By developing a strong human rights regime, individuals and communities will be more likely to support security mechanisms such as rigorous airport searches in the prevention of terrorism.

1.5 British Irish rights watch recognise the importance of the Government’s widespread public consultation on these counter-terrorism proposals. We believe that by engaging with civil society, the Government should be able to build a consensus on the issues around counter-terrorism legislation and the protection of human rights. However, we do sound a note of caution about the state of human rights in the UK today. We believe that the Government should be doing more to publicly protect human rights in the media and in discussion about the role of human rights both nationally and internationally. BIRW draw attention to the Joint Committee on Human Rights’ (JCHR) recent report into Counter-terrorism Policy and Human Rights, which noted their concern about the “effect of repeated questioning of the domestic human rights law framework by high-ranking members of the Government.”[70] We believe that the mixed messages sent by the Government on the issue of human rights and terrorism are undermining the status and protection of such rights. BIRW agree with the JCHR’s recommendation that the Government should make an unequivocal public commitment to the existing international human rights law framework.

1.6 As noted above, the increasing development of counter-terrorism legislation may not be the most appropriate response to an increased security threat. According to research by Sweet & Maxwell, an estimated 2,685 new laws have been passed since 1997[71], which could be construed as legislative overkill. It should be sufficient for the Government to utilise the existing legislation and increase the number of successful arrests, investigations and prosecutions of terrorists. British Irish rights watch agree with the Joint Committee on Human Rights that the introduction of new legislation must be based on sound argument, complimented by evidence, and that such an introduction must be transparent and open to consultation.

PART I

2. Options for pre-charge detention in terrorist cases

2.1 British Irish rights watch is opposed to the extension of the time during which an individual can be held without charge. We have previously expressed our concern that extending pre-charge detention to 28 days already pushed the boundaries of human rights compliant policing.[72] Detention of more than a month without charge can have serious psychological and social implications for both the detainee and his or her family. These factors also undermine the fundamental principles of the British legal system, such as the presumption of innocence and the right to a fair trial.

2.2 The Government’s justification for such an extension is that it will enable the police to gather more evidence. British Irish rights watch believe that such evidence should be in place before arrest so as to prevent protracted detention or the holding of innocent individuals. Similarly, there is an argument that an extension of the detention time lessens the urgency of an investigation, thus leaving suspects in custody unnecessarily. We note from the Joint Committee on Human Rights’ report that those suspects who were released at the end of the 28 day detention “raise concerns about whether the power to detain for up to 28 days is being used to detain those against whom there is least evidence.”[73]

2.3 In addition, we are concerned that conditions at Paddington Green Police Station, where terrorist suspects are held for questioning, may not offer the appropriate facilities. For instance, we note that there is no dedicated space for exercise and that there is only one room available for suspects to consult with their solicitors. While we welcome the fact that after 14 days suspects are transferred to “better” accommodation (a prison) we do not feel that this environment is appropriate for individuals who have not been charged with any offence. BIRW remind the Government of the requirements set out under the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the UN Convention against Torture, and the issues raised in the JCHR report, and urge the Government to improve the facilities at Paddington Green and provide better facilities for consultations between detainees and their lawyers.

2.4 BIRW do not believe that judicial and Parliamentary oversight of extended detention would provide suitable safeguards to protect the rights of suspects or the rule of law. While the safeguards introduced under the Terrorism Act 2006 have contributed in part to protecting the rights of suspects in custody, it is not clear how rigorous the judiciary has been in vetting applications put forward by the Crown Prosecution Service (CPS). British Irish rights watch would welcome information on the exact numbers of applications put forward by the CPS and the Police and the outcomes of the decisions in each case. We would also welcome information on the any special training undertaken by judges who assess such applications.

2.5 We have already seen the employment of this kind of oversight with control orders. Despite the publication of reports by Lord Carlile and the clear indications that control orders are an unsuitable method of addressing a terrorist threat, relatively limited changes have been made to this counter-terrorism measure. Indeed, a ruling in the High Court by Mr Justice Sullivan, stated that control orders violated Article 5 of the European Convention on Human Rights (right to liberty).[74] These problems are compounded by the fact that seven individuals, suspected of involvement in terrorist activity and subject to control orders, have absconded.[75]

2.6 As with many counter-terrorism proposals, lessons can be drawn from Northern Ireland. The policy of internment, used in Northern Ireland during the 1970s, produced similar effects to those which could occur should pre-charge detention be extended. The policy’s aim was to combat the IRA and it involved the mass arrest of IRA suspects. However, those in charge of implementing the policy relied on out-of date intelligence and a proportion of those arrested and detained were completely innocent. Allegations of torture, cruel and degrading treatment began to emerge, and contributed to an upsurge in violence in Northern Ireland. More significantly, individuals who did actually pose a threat to the security of the UK ‘slipped through the net’ before the raids took place. Internment ultimately failed because it did not respect the civil liberties and human rights of one section of society. By directly and solely targeting Catholics/nationalists/republicans, it sent a clear message about the value of the human rights of that community. This message was enhanced by the extent to which the UK Government was prepared to go to elicit information, for instance the use of degrading and inhuman treatment of prisoners (the infamous “five techniques”[76] regrettably still in use in other parts of the world) and an inability to admit at an early stage that internment was an unsuccessful policy. We cannot better the army’s own assessment of internment: “Put simply, on balance and with the benefit of hindsight, it was a major mistake.”[77]

2.7 BIRW acknowledge the fact that there are differences between contemporary Islamic terrorism and Irish terrorism. However, unlike the Government, British Irish rights watch do believe that an application of additional resources rather than the introduction of stifling legislation would be the best way forward. BIRW understand that an investigation may be sequential; however, it is not clear why increasing the number of investigators who speak the relevant languages will not have a positive impact upon an investigation which involves translating mobile phone conversations, for instance. Similarly, the international nature of terrorist investigations should not mean an increase in detention time but rather increased co-operation between countries in tackling terrorism for the reasons stated above. BIRW believe that the Government’s case for increasing pre-charge detention is weak and lacks any evidential basis.

3. Acts preparatory to terrorism

3.1 British Irish rights watch is concerned about the offence of Acts Preparatory to Terrorism which was introduced under the Terrorism Act 2006. We believe that the vague language used in the legislation and the high sentences which such charges carry could lead to miscarriages of justice. BIRW also do not believe that it is appropriate to use this charge as a method of extending the detention of an individual based primarily on the loose language which enables potentially innocent acts to be incorporated as a criminal offence.

4. Post Charge questioning

4.1 British Irish rights watch has concerns that post-charge questioning could, in certain circumstances, lead to the harassment of suspects. We believe that the further interviewing of suspects, after they have been charged, can only take place when fresh evidence has come to light. In this way, suspects will be afforded the same due process of law and protections as prior to their being charged. The right to remain silent should still apply in such circumstance, of course. Equally, suspects should not be made to compromise their defence. We also believe that by setting different standards for terrorist suspects and criminal suspects, the Government is in danger of developing a twin-track judicial system. We also believe it would be beneficial for the Government to wait until the outcome of the consultation into similar changes to the Police and Criminal Act 1984.

5. Use of intercept evidence

5.1 Given that terrorists can avail themselves of the benefits of modern technology, on the face of it there is an argument for giving the prosecution equality of arms. However, careful attention needs to be paid to the human rights implications of covert surveillance, in particular its impact on the privilege against self-incrimination, which forms an important element of the right to a fair trial. Care also needs to be exercised in targeting suspects for such surveillance, because of its impact on the right to respect for privacy, not only of the suspects but also of third parties. Intelligence gathering of this sort should not be used to build databases on people who are not involved in terrorism, and records engendered in the course of combating terrorism that involve innocent persons should be destroyed at the earliest opportunity.

5.2 If intercepted communications are to be allowed in evidence, then so too must information about how such evidence was obtained, in order that the defence may challenge evidence that was gathered improperly. The use of intercepted material which is shrouded in secrecy because of an alleged need to protect sources and methods is not acceptable. We draw attention to the current legislation governing covert surveillance – Regulation of Investigatory Powers Act 2000 (RIPA). Under this legislation, a person who believes, for example, that his or her telephone is being tapped without cause, can make a complaint. However, the only outcome of the complaint is that s/he will be told that the authorities cannot confirm or deny that the telephone is being tapped, but can assure the complainant that, if it is being tapped, then the tapping is in compliance with the law. There is no mechanism for having the interception stopped. As we have seen in a recent case[78] in Northern Ireland, where privileged conversations between lawyers and their clients were the subject of a covert listening device at Antrim police station’s Serious Crimes Suite, the threshold test for the use of surveillance under RIPA is unclear and the decision-making process opaque. The development of any new legislation in this area must take into account the problems we have seen with RIPA.

5.3 The use of evidence gathered by telephone interception should be the subject of keen safeguards, with a rigorous system for approval. We believe that such interception should be used for the minimum amount of time necessary and therefore be subject to regular review. The aim should be to remove it at the earliest opportunity. A system which enables individuals to find out if their telephones or other means of communication, such as email, are tapped, and to subsequently challenge such surveillance, should be put in place and must be robust and transparent.

5.4 We also have concerns regarding the use of intercept evidence which could potentially compromise a suspect’s right to confidential access to a lawyer. The use of evidence gained by listening to such conversations would be disproportionately advantageous to the prosecution, and again undermine the right to a fair trial. In our view, intercepted communications between suspects and their lawyers should never be admissible as evidence. We welcome the review proposed by the Government to be chaired by the Rt Hon Sir John Chilcott and hope that they will consult widely and that the results of their work will be made publicly available.

6. Use of Supergrasses

6.1 BIRW has very serious concerns that the common law practice of “Queen’s Evidence” is now on a statutory footing in England, Wales and Northern Ireland and about the proposed use of supergrasses in terrorist cases. We know from our experience in Northern Ireland that the use of supergrasses is highly problematic. The Northern Ireland Court of Appeal overturned many of the convictions which resulted from the supergrass trials of the 1980s and international criticism of the practice indicated that it violated the right to a fair trial. We believe that the use of supergrasses undermines the stability of convictions and respect for the rule of law. It also promotes a culture of impunity, in that it encourages people who have engaged in serial acts of criminality to avoid appropriate sanctions. Supergrass evidence is also inherently unreliable, as the supergrass is motivated to convict as many others as possible in order to lighten his or her own sentence.

6.2 The use of supergrasses is also highly damaging to building community confidence in policing and counter-terrorism measures generally. If people believe there may be spies in their midst, with the potential for settling personal scores by naming neighbours as terrorists, communities begin to distrust their own members. Fractured communities do not trust the police when they cannot trust one another, and the flow of vital intelligence can be seriously hampered.

6.3 The use of informers by the security forces in Northern Ireland has led to tragic consequences. Most recently, the Police Ombudsman for Northern Ireland published the result of her investigation into the use of informers in the 1990s. Her report, Operation Ballast, uncovered information about the murders of ten people and 72 instances of other crime, including ten attempted murders, ten “punishment” shootings, 13 punishment attacks, a bomb attack in Monaghan, 7 instances of drug dealing, and additional criminality, including criminal damage, extortion and intimidation. She also uncovered widespread and systemic collusion between members of police Special Branch and the UVF, where Special Branch had covered up the crimes of their mole in the UVF over a period of many years. Special Branch had been hiding Northern Ireland’s dark history of collusion and the use of informers by the security services should provide key lessons, particularly in terms of what to avoid, to be learnt by the Government as it develops further counter terrorism legislation.

7. Making full use of the Threshold test

7.1 British Irish rights watch note the importance of making full use of the threshold test to investigate and charge terrorist suspects. However, we caution against using the threshold test in such a way that it results in wrongly detaining individuals on minor charges which may later be dropped as a method of keeping them in custody.

8. Options proposed by the Government.

8.1 Option 1. This has been discussed above in paragraphs 2.1 to 2.7.

8.2 Option 2. We do not believe that the addition of an affirmative resolution by Parliament would provide a secure enough safeguard to protect the rights of suspects. British Irish rights watch agree with the Government’s concerns that such a vote would be unwieldy and provide operational difficulties for the police.

8.3 Option 3. BIRW are interested by the suggestion put forward by Liberty with regard to the Civil Contingencies Act 2004. This would enable decisions by the Government to be scrutinised appropriately. However, the fact that such measures could be renewed at anytime may mean that once the use of emergency powers has been declared that there is little incentive to return to regular powers.

8.4 Option 4. The introduction of judge-led investigations could provide an interesting method of tackling terrorism. However, the cost and problems associated with re-orienting the British judicial and criminal system to one similar to the Magistrates’ model found in mainland Europe are immense. BIRW had particular concerns about the differing standards applied to suspected terrorists, for instance, the fact that in the French model, terrorist suspects could be held for six days as opposed to four and that terrorist suspects were denied access to a lawyer for the first 72 hours of detention.

Conclusion

We do not believe that the Government has made a compelling case for extending the detention limit beyond 28 days. This is supported by the fact that in 2006, “there has been no case in which a suspect was released but a higher limit than 28 days would definitely have led to a charge”.[79] We are particularly concerned by the use of statements such as “it will only be necessary to go beyond 28 days in exceptional circumstances”. [80] We saw such phrasing in the request to introduce 28 day detention and already we have seen the number of “exceptional circumstances” spiral. If, as the government maintains, the threat from terrorism is increasing, we do not believe that extended detention is an adequate response. Rather, the Government should be using a holistic approach which prevents the alienation of minority groups, builds bridges between various aspects of the security services (both nationally and internationally) and increases the numbers of translators and other specialist staff to speed up investigations and high quality police and intelligence work.

PART II

9. Disclosure in relation to suspected terrorist financing

9.1 British Irish rights watch are aware of the problems regarding the financing of terrorism. BIRW have been supportive of the Assets Recovery Agency in Northern Ireland because we believe that it sends a strong message to those involved in criminal and terrorist activity. However, Lord Carlile, in his examination of terrorism legislation illustrated the problems with monitoring terrorist assets; citing the example of an estate agent who may be unaware that the rent from office premises may ultimately benefit a company operating for the purposes of a terrorist organisation, he indicated that s.18 placed a reverse burden of proof on the estate agent.[81] We agree with the proposed measure to confiscate the assets of an individual who has been convicted of a terrorist offence; however, we caution that such measures should not impact upon the innocent dependents of such an individual, not on those who may have become innocently embroiled in money-laundering.

10. Measures in relation to dna of terrorist suspects

10.1 The gathering and holding of the DNA of those suspected of terrorist offences is a sensitive issue. As with all personal information held by Government agencies, it is vital that the information is fully protected and secure and that there are clear protocols for the collection and destruction of such information. While we acknowledge the importance of a counter-terrorism DNA database, we believe that such a database should be integrated into the National DNA Crime database. This is linked to our view that any such database should be subject to the same procedures that currently apply to the National DNA Crime database. Terrorists are criminals and creating separate mechanisms for them, such as a separate database, only feeds into the hero complex upon which many terrorists survive, setting them apart from the mainstream judicial process. BIRW are opposed to the creation of legislation which would enable the retention, storage and use of DNA/fingerprints of those on control orders. As is clear from our submission, we do not support any measures which would cement control orders as a suitable measure to tackle terrorism.

11. Data sharing powers for the intelligence services

11.1 As far as resources for the security services are concerned, we believe that sharing information between agencies should increase the capacity of such agencies. However, it is vital that appropriate safeguards are laid down in the design of such a sharing scheme. Individuals should retain the right to know if an agency holds information about them, and what that information is, and should have the right to challenge any inaccurate information. There should be clear guidelines on how the information can be shared, with whom, and for what purpose.

12. Collection of information likely to be of use to terrorists

12.1 The addition of section 58, which deals with the possession of documents for terrorist purposes, to the Terrorism Act is worryingly vague in its wording.[82] We hope that it will apply to security personnel leaking information to terrorists.

12.2 In April 2007, Mark Thompson, a prominent human rights activist from Northern Ireland, was one of over a hundred people who was visited by the police and told that his life was under threat from loyalists, presumed to be the UVF. Two members of a loyalist flute band, one of whom was a civilian employee with access to police computers, have been arrested in relation to passing information to the UVF and possession of information useful to terrorists. This indicates the need for the vetting process used by the security forces to be as robust as possible and to prevent private information falling into the wrong hands.

13. Enhanced sentences

13.1 British Irish rights watch have grave concerns regarding the proposal to enhance the sentences for terrorists who are convicted of non-terrorist-specific offences. As previously noted, if the Government treats terrorists differently from other criminals because of the motive for their crimes, it can only create miscarriages of justice and martyrs to the cause. This danger is increased if the Government specifies non-terrorist offences as incurring greater penalties dependent upon the motivation of the individual carrying out the crime. This will contribute to the creation of a twin-track justice system, which in turn undermines the rule of law and the protections currently afforded to both suspects and victims by the judicial system.

13.2 There appears to be a principle of disproportionate deterrence underpinning many of the government’s proposals for countering terrorism, of which the proposals on sentencing are a prime example. This seems to us to be aimed at the symptoms rather than the causes of terrorism. Once a person has made the monumental step of deciding to kill him or herself in order to kill others with whom he or she disagrees, fear of a harsher sentence should that murderous endeavour fail is hardly likely to make a difference. Introducing ever-harsher sanctions has only one logical conclusion, which is the reintroduction of the death penalty, to which the present government is opposed, although the same may not hold true for some future government. We will not rid ourselves of the scourge of terrorism by adopting an essentially Old Testament attitude of retribution. It is only by standing up for human rights, which includes defending the right of others to hold their own religious beliefs, while not accepting that any religious belief can justify the taking of life, that we can produce a society with shared values which is strong enough to protect itself against terrorism, whether from without or within. In doing so, we would also create a model for other countries to covet and emulate, thus lessening the potential threat.

13.3 A good starting place, in our view, would be to make human rights part of the national school curriculum, and to provide university degrees at entry level for undergraduates. If the threat and the dilemmas posed by terrorism were debated by people of all ages in a human rights context, many attitudes would be changed and many divides bridged. In our opinion, this would be a far better use of resources than spending public money on keeping those who have already espoused terrorism in jail for longer.

14. Notification requirements for convicted terrorists

14.1 Although the form of a notification scheme has not been fully outlined by the Government, we do not believe it is an appropriate measure. The Sex Offenders Register currently means a convicted sex offender must register their name and address with the police, inform them within 14 days if they move and be the subject of a six month jail sentence and fine should they fail to register. This ensures the continued criminalisation of an individual.

14.2 Our remit does not permit us to comment on whether such measures are justified in the case of sex offenders, but in the case of those convicted of terrorist acts, such labelling would almost certainly be counter-productive. It is unclear who would have access to the information on a “terrorist register”.[83] Such access could prevent convicted terrorists, who have served their sentence, from rebuilding their lives and hinder their ability to find a job or home. We believe such legislation will lead to ongoing discrimination against individuals and would negate the rehabilitative role of the prison system.

15. Control orders

15.1 BIRW has previously made a detailed submission to Lord Carlile on the subject of control orders, a copy of which can be found at Appendix 1. We agreed with Lord Carlile’s assessment that control orders are “not very far short of house arrest, and certainly inhibit normal life considerably”.[84] We assert that if there is enough evidence to charge an individual and bring them before a court then this should be done; if there is not enough evidence, then an individual should be released. The “limbo” in which suspects exist while subject to control orders creates the potential for the abuse of due process.

15.2 BIRW believe that the proposed “self-standing power of entry and search of promises” is an unnecessary and invasive measure. The need for such a power indicates that those subject to control orders should be in conventional secure accommodation (assuming correct judicial process has been observed). Such a power would undermine an individual’s right to respect for his or her private and family life. The rights of those residing with such an individual would similarly be undermined. This police tool serves only to increase the pressure on those subject to control orders. There are no details of the threshold of suspicion that would have to be reached before the police were authorised to employ such a power.

15.3 BIRW agree with the Joint Committee on Human Rights’ assessment of the use of Special Advocates in control order cases. In reference to submissions made by several Special Advocates, the JCHR stated “we found their evidence most disquieting, as they portrayed a picture of a system in operation which is very far removed from what we would consider to be anything like a fair procedure”.[85] The fact that an individual is not able to know all of the evidence against them, the lower standard of proof; the fact that a Special Advocate cannot tell an individual the nature of the evidence against him or her and the fact that the provenance of the closed material may not be fully explored clearly undermine Article 6 of the ECHR, which protects the right to a fair trial, and the control order system as a whole.

16. Police power to hold passports and travel documents at ports

16.1 BIRW disagree with the proposed power to hold travel documents for those individuals of whom it is believed are travelling aboard for terrorist purposes. We do not believe that an additional power to hold documents is appropriate. As with control orders, either the police should have enough evidence to arrest an individual, or an individual should be able to travel unhindered.

16.2 The Government’s proposals do not specify the length of time for which individuals could be held nor the nature of this detention. Would individuals be held in a secure room at the port? Would they have access to legal advice? Would they be held in police custody? What protections and rights would such individuals be afforded? The implementation of such measures will hinder the travel of innocent people, place an undue burden on police at ports, and encourage the stigmatisation of communities. BIRW consider that it would be more appropriate for the Government to focus resources on gaining accurate and reliable intelligence about suspects rather than introducing cumbersome legislation which will prove unwieldy and bureaucratic in practice. The general public are already beginning to rebel against the relatively non-intrusive security measures adopted at airports, and to resent being treated as potential terrorists on a regular basis. If travel is to be make even more irksome for all passengers in order to deal with a small number of terrorist suspects, there is a real risk that people will begin to subvert security measures in order to avoid hassle and delay, with the result that overall security will be undermined.

16.3 We are also concerned that the use of such a policy may lead to the employment of racial profiling. We have seen the negative implications of this policy, when one community is excessively targeted by the security forces, with the Irish community in Britain in the 1970s[86]. This resulted in the gradual alienation and disaffection of young people from this community which impacted upon the number of them prepared to engage in terrorism. The revival of the “sus laws” (based on s.4 and 6 of the Vagrancy Act 1824) in the 1970s contributed to Afro-Caribbean discontent and eventual rioting in the 1980s. We caution the security agencies to be wary of utilising racial profiling in the use of stop and search and in the wider development of counter-terrorism strategy. We draw their attention to a recent resolution on combating racisms and racial discrimination in policing from the European Commission[87]; this makes several clear recommendations about racial profiling, including that Governments should ensure police are adequately trained to avoid racial discrimination.

17. Transfer of Functions to the Advocate General (Northern Ireland)

7.1 BIRW has no objection to the transfer of functions to the Advocate General (Northern Ireland) as outlined in the Justice (Northern Ireland) Act 2002. However, we are interested to know what inspection and accountability mechanisms will be responsible for this office. It is unclear which of the Attorney General’s functions, with regard to reserved and excepted fields, will stay with the Attorney General for England and Wales. It appears to us that the Attorney General will not have any power in relation to issues to national security or to supervise the activities of the Public Prosecution Service.

18. Conclusion

18.1 British Irish rights watch have expressed concerns, in submissions to both the Joint Committee on Human Rights and the Home Affairs Committee, about the enactment of draconian legislation in response to the threat of terrorism. The ill-effects of such a policy can be clearly seen in the conflict in Northern Ireland. The Government would be well-advised to examine developments in this conflict and to draw key lessons from that experience, rather than simply repeating the mistakes of the past.

18.2 We draw the Government’s attention to the need to take a holistic approach to counter-terrorism measures. Many of those involved in terrorism are second-generation British nationals. To prevent the development of violent extremism, the Government should be looking, in parallel with legislation, at issues such as housing, employment, education, especially in human rights, and political representation to understand and mitigate the alienation of young British Muslims. This alienation is not going to be solved solely by restrictive legislation but rather by the positive, inclusive policies which engage with young Muslims and bring them into the mainstream. Criminalising or demonising communities via specific policies such as the use of higher sentences for terrorists who are convicted of non-terrorist-specific offences is not appropriate. Similarly, allowing the rule of law and protection of human rights to be submerged by counter-terrorism legislation will only fuel rather than prevent future terrorist attacks.

APPENDIX 1

Second Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005, Lord Carlile of Berriew

A response from British Irish Rights Watch

Introduction

1.1 British Irish Rights Watch (BIRW) is an independent non-governmental organisation that has been monitoring the human rights dimension of the conflict, and the peace process, in Northern Ireland since 1990. Our services are available, free of charge, to anyone whose human rights have been violated because of the conflict, regardless of religious, political or community affiliations. We take no position on the eventual constitutional outcome of the conflict.

1.2 British Irish Rights Watch welcomes the scrutiny by Lord Carlile of the UK’s terrorism legislation and this opportunity to respond to his report on control orders. BIRW have monitored the development and implementation of terrorist legislation for the past seventeen years. Although BIRW’s remit does not extend to international terrorism, our experience in Northern Ireland is relevant.

1.3 British Irish Rights Watch are disappointed by Lord Carlile’s conclusion, that the use of control orders remains necessary and that control orders “provide a proportional means of dealing with those (terrorist) cases”.[88] We do not believe that control orders are a proportional or appropriate mechanism for use in the criminal justice system. Control orders violate both civil liberties and human rights, which in turn undermines the rule of law and aids in the recruitment of disillusioned individuals to the terrorist cause.

2. Control orders

2.1 Control orders are detention without trial. We have seen the use of a similar policy in Northern Ireland in the 1970s – internment. This policy not only violated the right to be free of arbitrary detention, but served to alienate a large section of the Catholic community from both the state and the security forces.

2.2 Control orders negatively impact upon an individual’s right to a private family life, as protected by Article 8 of the European Convention on Human Rights (ECHR). For instance, all visitors to the residence will have to seek authorisation from the Home Office and there may be restrictions on the kinds of communications equipment the family can own. Often the use of evidence in court hearings to determine the use of control orders consists of evidence to which the defendant is not given access. This undermines the defendant’s right to a fair trial, guaranteed by Article 6 of the ECHR. This is re-enforced by the use of closed court sessions where a Special Advocate represents the controlee rather than the controlee’s chosen legal team. The fact that control orders so fiercely curtail the movements of individuals also violates Article 11 which embodies the right to freedom of assembly and association.

2.3 The lower threshold of evidence necessary to apply a control order has a negative impact upon the British judicial system and undermines the rule of law. This is particularly so because there does not always have to be a connection between the conditions imposed via the control order and the nature of the individual’s alleged involvement in terrorist activity. The individual occupies a legal limbo, where his or her civil liberties have been sufficiently undermined to negatively impact his or her quality of life, yet the state is unable to pursue a full criminal prosecution which would ensure that the rights of the individual would be protected.

2.4 The definition of terrorism and its role in the Prevention of Terrorism Act (PTA) 2005 and the subsequent Terrorism Act 2006 is problematic. BIRW monitored the development of the PTA and were critical of several key elements, namely the use of fuzzy terms such as “encouraging acts of terrorism”. The definition of terrorism utilised in the Terrorism Act 2006 is so broad and diffuse that it runs the risk of creating crimes without real victims, an outcome which would bring the law into disrepute. The objective of most actual terrorism is usually the overthrow of the state, or at least the status quo. That being so, it is crucial that a democratic state does not over-react to terrorism or the threat of terrorism, because to make any of these errors can catapult a state out of democracy and into despotism, creating the very situation the terrorists are seeking to achieve. Terrorism is not an act, it is a description of the motivation of a person carrying out any of a range of acts, many of which, absent the terrorist motive, are perfectly harmless and legal. To give an example from Northern Ireland, a woman who buys a pair of rubber gloves to protect her hands while doing the washing up is behaving perfectly legally. If, on the other hand, she buys them to protect her hands while making a bomb, she commits an offence. The problem for the police and the courts, is how to prove that the mere act of purchasing the gloves was illegal.

2.5 The opportunities for quashing a control order are few. The fact that the application of a control order can be based on secret evidence undermines the ability of the individual and their legal team to rebutt the allegations of terrorist activity.

2.6 The problems with control orders have been manifested in court proceedings. Since February 2006, the Government has lost the majority of the judicial challenges to control orders; the most recent being on 16 February 2007.[89] It is clear that if the government employed the correct judicial process towards individuals currently subject to control orders, they would either be in custody, or have been found innocent and released. According to the human rights NGO, Liberty, the Home Office has “relied on flawed and inconsistent intelligence in the kind of secret proceedings used in control orders … the High Court has dismissed the judicial oversight of control orders as ‘thin veneer of legality’”.[90] On several separate occasions the courts have found that the issuing of a control order had violated the right to a fair trial and the right to liberty respectively. The problems with control orders do not end with court proceedings. Though not the fault of the judiciary, three individuals, all subject to control orders, have been able to abscond, totally devaluing the concept that control orders protect the public. This indicates the difficulty of monitoring the practical restrictions imposed by control orders.

2.7 While control orders only apply to the individual, the effects are felt by the families of those living under control orders. As the Committee on the Prevention of Torture (CPT) noted, the criteria of a control order can be such that no pre-arranged meetings without prior authorisation of the Home Office can take place and no visits to the individuals’ homes without the interested persons submitting details to the Home Office – both of these equally effect the children and spouses of controlees. The CPT also voiced concerns about the psychological impact of the control orders on the controlees citing conditions such as depression and anxiety with risks of self-harm and suicide.[91]

3. Lord Carlile’s Second Report

3.1 BIRW appreciate the inclusion of Tables 1 and 2 in the report which provide a good snapshot of the conditions under which controlees are living. While we acknowledge the conditions applied to each controlee are related to their suspected relationship with terrorism, the disparity between the conditions is significant. For instance, Case 6 is the subject of 17 restrictions and/or conditions including the wearing of a tag while Case 14 is subject to only 5 conditions. Significantly, the bulk of the restrictions applied to Case 14 are similar to those applied to individuals on bail. In contrast, those conditions on Case 6 represent a significant impact on his daily life. The fact that control orders can have such a variety of consequences is of concern to BIRW. In our view, all the cases described in this document have the right to a fair trial so that they can defend themselves against the allegations which led to the application of the control orders. If the restriction applied to Case 6 are a reflection of the government’s perception of the individuals’ danger to society, then there is little doubt that they should be in custody. If the evidence fails to provide the verification of the government’s perception, then there is no alternative but to release the individual. It is for this reason that control orders offend against the presumption of innocence, one of the most important foundations of our criminal justice system.

3.2 BIRW welcome Lord Carlile’s argument in paragraph 35 for the use of intercept evidence. We believe that, when used properly, intercept evidence could alleviate some of the problems with the control order issuing process. However, careful attention needs to be paid to the human rights implications of covert surveillance, in particular its impact on the privilege against self-incrimination, which forms an important element of the right to a fair trial. The use of intercepts should be the subject of strong safeguards, with a rigorous system for approval.

3.3 Control order cases are hidden from public scrutiny so we have no way of assessing whether Lord Carlile’s view that each of the Secretary of State’s decisions regarding the issuing of control orders was correct, as asserted in paragraph 36. This in itself undermines the purpose of, and public confidence in, the scrutiny process itself. If the basis for scrutiny cannot be assed, it becomes meaningless.

3.4 We share the concerns stated by Lord Carlile with regard to the use of control orders on UK citizens who may travel to Iraq or Afghanistan with the intention of participating in violence. While we acknowledge that it is the duty of every civilised country to prevent violence, either on its own soil or on the soil of others, where that violence is expected to be perpetrated by its own nationals, the basis for evaluating such a threat is problematic. A heavy reliance on intelligence sources and the opportunity to use closed court sessions undermines the judicial proceedings in such cases. Few lessons have been learnt by the government from the conflict in Northern Ireland; most significant amongst these lessons has been a need for proportionality in anti-terrorist measures. Draconian measures usually produce an over-reaction.

3.5 We believe that the use of control orders, especially where controlees are subject to an 18 hour curfew, to be akin to house arrest. We also welcome the comments in paragraph 43 regarding the end of each individual control order. We have concerns that, as the legislation continues to be renewed on an annual basis, the government is not considering an “exit strategy” from this policy. The uncertainty for those subject to control orders must surely have some significant adverse psychological impact on both them and their families. BIRW urges the government to consider alternative legal methods for dealing with those currently subjected to control orders.

3.6 BIRW is extremely concerned by the comments made in paragraph 57 that Chief Police Officers have stated that there “no realistic prospect of prosecution” of controlees. This clearly indicates the dubious grounds upon which they are issued.

3.7 BIRW agree with the concerns expressed by Lord Carlile regarding the role of the controlee in appeal hearings. We think it an abuse of the judicial process that controlees may be judged on evidence which they do not have the opportunity to refute. Likewise, the principle that an individual’s beliefs with regard to terrorism may change are also significant in this scenario.

4. Conclusion

4.1 As has been set out in this submission, BIRW remain opposed to the use of control orders. We do however welcome Lord Carlile’s investigation of this issue. We encourage him to ask the government when the use of control orders will cease. We also remind Lord Carlile of the lessons which can be drawn from Northern Ireland where a disproportionate response to the threat of terrorism not only functioned as a recruiting drive for individuals to join paramilitary groups but undermined the rule of law and civil liberties in Northern Ireland as a whole.


Submission to the United Nations Human Rights Council’s Universal Periodic Review Mechanism Concerning the United Kingdom: Annex 3

Rt Hon Shaun Woodward MP
Secretary of State for Northern Ireland
Northern Ireland Office
11 Millbank
London
SW1 4QE

18th July 2007

for the personal attention of the Secretary of State

Dear Shaun Woodward,

Group to look at the past

As you know, British Irish rights watch (BIRW) is an independent non-governmental organisation and registered charity 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 in the eventual outcome of the peace process.

We refer to the Northern Ireland Office press release of 21st June 2007 concerning the setting up of a group to look at the past.

Dealing with the past is an issue with which BIRW has been much concerned. We have helped hundreds of individual families in Northern Ireland to deal with the trauma of losing a loved one, being injured, suffering a miscarriage of justice, or becoming a victim of the conflict in some other way. We have also monitored the work of agencies such as the Police Ombudsman and the Historical Enquiries Team, and also attempted to assist them in their work. BIRW have also been at the forefront of researching and exposing collusion, which has created countless victims.

We firmly believe that the legacy of the conflict needs to be properly addressed in order that Northern Ireland can recover from nearly forty years of violence and sectarianism. That process must involve an independent assessment of what took place, and a series of measures to ensure that the horrors of the past cannot be repeated. It needs to identify those responsible, and where possible hold them to account. What it emphatically must not do is attempt to draw an artificial line under the past, without providing closure for victims, or attempt to brush wrong-doing under the carpet.

When we saw the announcement this group we immediately had a number of concerns.

First, there was no consultation with the people of Northern Ireland before this group was established. If the past is to be dealt with effectively, then the process must be inclusive and must command the respect and support of all sections of society. It is not wise to impose such a process on victims without consultation.

Secondly, with all due respect to those who have agreed to serve on the group, objectively they cannot be said to represent anybody in particular. We have spoken to many victims who have told us that they have no sense of identification with the group, and no understanding of why they were selected. From our own point of view, we are alarmed that the group does not include any victims’ representatives and no-one with any direct human rights experience. We are also concerned that the group is accountable to no-one, other than the Secretary of State for Northern Ireland, who, for the reasons set out later in this letter, is not the appropriate person.

Thirdly, the terms of reference – which of course, do not arise from any process of consultation – do not in fact treat with dealing with the past, so much as building a shared future that is not overshadowed by the past. This seems to us to be missing a crucial intermediate step, which is coming to a shared understanding of what actually happened in the past. In other words, the analysis is missing. It also seems, whether intentionally or otherwise, to be proscriptive, in that it is telling Northern Ireland society what the outcome of the consultation process is intended to be. Such an approach suggests that the group will be on send rather than receive.

The terms of reference refer only to the community in Northern Ireland. While we believe that the future of Northern Ireland should remain squarely in the hands of the people of Northern Ireland, as those most closely affected by the conflict, there are others from outside Northern Ireland who may also have useful insights to offer which should not be ignored. Among them, for example, would be the Irish government, the various US Special Envoys, and human rights groups such as our own, Amnesty International, and Human Rights First (this is by no means meant to be an exhaustive list).

Fourthly, the time scale of one year is ludicrously short for such a complex and contentious issue. The message it sends is that this is not a serious undertaking so much as a hollow exercise.

Lastly, but by no means least, the Northern Ireland office are not the right agency to launch such an initiative. The United Kingdom government has not been a neutral force in the conflict, but one of the key actors. It is itself in the dock over collusion. It is not in a position to commission a report which ought to put its own actions under scrutiny.

It seems to us that the creation of this group fails on al the major tests such a group should be expected to pass. It is not independent, it is not accountable, it is not transparent, and it is not compliant with domestic and international human rights standards and norms. We think that the people of Northern Ireland deserve better. This is an exercise which is being set up to fail, and if it does fail it will do great harm. Too many lives have been lost and shattered in Northern Ireland for any half-hearted and ill-conceived approach to dealing with the past.

Yours sincerely,
Jane Winter,
Director.


  1. Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, 05/11/2001; CCPR/CO/73/UK
  2. In re McKerr [2004] UKHL 12
  3. Ibid
  4. [2007] UKHL 13; see also Jordan v Lord Chancellor and Another; McCaughey v Chief Constable of the Police Service of Northern Ireland [2007] UKHL 14
  5. Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, CCPR/CO/73/UK and UKOT para 7
  6. Ibid
  7. Prevention of Terrorism (Temporary Provisions) Act and Northern Ireland (Emergency Provisions) Act
  8. Government Discussion Paper ahead of Proposed Counter Terror Bill 2007, 7 June 2007, http://security.homeoffice.gov.uk/legislation/proposed-new-legislation/
  9. Gordon Brown’s speech on liberty at the University of Westminster, 25 October 2007, http://www.number10.gov.uk/output/Page13630.asp
  10. FRU changed its name to the Joint Support Group in or about 1991 – the JSG is currently operating in Iraq
  11. A lawyer who was blown up in a car bomb by loyalist paramilitaries in 1999 after the government ignored consist warnings about the threat to her life from NGOs, the UN and the Irish and American governments
  12. A loyalist paramilitary leader who was murdered in 1997 inside the Maze prison by a republican faction after the prison authorities ignored warnings about his safety
  13. A Catholic who died in 1997 after a sectarian beating which took place in the presence of the police, who later assisted his loyalist assailants to avoid justice
  14. Funding has only been made available for two outreach workers for the period mid-October 2007 to 31 March 2008
  15. http://www.official-documents.gov.uk/document/cm71/7170/7170.pdf
  16. Ibid, paragraph 209
  17. [1996] 22 EHRR 29
  18. A/HRC/RES/5/1, 18 June 2007
  19. Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, 05/11/2001; CCPR/CO/73/UK, CCPR/CO/73/UKOT, paragraph 7.
  20. Ibid
  21. Ibid
  22. In re McKerr [2004] UKHL 12
  23. Ibid
  24. [2007] UKHL 13
  25. Funding has only been made available for two outreach workers for the period mid-October 2007 to 31 March 2008
  26. http://www.official-documents.gov.uk/document/cm71/7170/7170.pdf
  27. Ibid, paragraph 209
  28. 2003 Labour Force Survey, Office of the First Minister and Deputy First Minister, Northern Ireland Statistics and Research Agency, Statistical Bulletin, (June 2005). While this report was published in June 2005, the figures relate to the position of the labour market in 2003.
  29. Department of Finance and Personnel, 2005
  30. Letter from Chief Constable to BIRW, 15 January 2007
  31. Letter from Chief Constable to BIRW, 9 February 2007
  32. Northern Ireland Office consultation on Review/renewal of 50:50 and lateral entry

    provisions, 2006

  33. Letter from Chief Constable to BIRW, 9 February 2007
  34. The Loyal Orders are Protestant free-masons which ban Catholic membership
  35. Letter from PSNI Deputy Chief Constable Paul Leighton to BIRW, 7 September 2007
  36. More than 100 were warned by UVF probe police officers, by Chris Thornton, Belfast Telegraph, 18 April 2007
  37. Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, 05/11/2001; CCPR/CO/73/UK, CCPR/CO/73/UKOT, paragraph 6
  38. Statement by the Police Ombudsman for Northern Ireland on her investigation into the circumstances surrounding the death of Raymond McCord Junior and related matters, January 2007, paragraph 17
  39. A lawyer who was blown up in a car bomb by loyalist paramilitaries in 1999 after the government ignored consist warnings about the threat to her life from NGOs, the UN and the Irish and American governments
  40. A loyalist paramilitary leader who was murdered in 1997 inside the Maze prison by a republican faction after the prison authorities ignored warnings about his safety
  41. A Catholic who died in 1997 after a sectarian beating which took place in the presence of the police, who later assisted his loyalist assailants to avoid justice
  42. Finucane v UK, App. no. 29178/95
  43. Hugh Jordan v UK, no 24746/94, 4.5.2001; Kelly & Others v UK, no 30054/96, 4.5.2001; McKerr v UK, no 28883/95, 4.5.2001; Shanaghan v UK, no 37715/97, 4.5.2001
  44. [2004] UKHL 12
  45. Ibid
  46. [2007] UKHL 13
  47. Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, 05/11/2001; CCPR/CO/73/UK, CCPR/CO/73/UKOT, paragraph 8
  48. A common euphemism for the conflict in Northern Ireland
  49. Cases concerning the action of security forces in Northern Ireland – Stocktaking of progress in implementing the Court’s judgments, Cm-Inf-DH(2006)4rev2E.htm, paragraph 65
  50. Cold case’ cops in dark over murders, by Alan Murray, Belfast Telegraph, 11 February 2007
  51. Office of the Oversight Commissioner, Report 11, September 2004, p. 52
  52. Reply to Freedom of Information request made to the PSNI: F-2005-02695, 19 December 2005 (July and August)
  53. ACPO Attenuating Energy Projectile (AEP) Guidance, amended 16th May 2005, paragraph 1.17
  54. Ibid, paragraph 4.1
  55. Ibid, paragraph 7.5
  56. Conclusions and recommendations of the Committee against Torture: United Kingdom of Great Britain and Northern Ireland, A/54/44, 11 November 1998
  57. Concluding observations: United Kingdom of Great Britain and Northern

    Ireland, Committee on the Rights of the Child, CRC/C/15/Add.188, 9 October

    2002

  58. Jordan (AP) (Appellant) v. Lord Chancellor and another (Respondents) (Northern

    Ireland) McCaughey (AP) (Appellant) v. Chief Constable of the Police Service

    Northern Ireland (Respondent) (Northern Ireland) [2007] UKHL 14

  59. Please see paragraph 8.6 above
  60. Less Lethal, BBC Panorama documentary transmitted on 9th December 2001
  61. need more here Phase 3 Report, Chapter 3, paragraph 32
  62. Ibid, Chapter 5, paragraph 132
  63. Phase 4 Report, Chapter 7, Appendix B
  64. Death sparks Taser safety concern, BBC Internet News, 18 October 2006
  65. JJ and others v Secretary of State for the Home Department [2006] EWCA Civ 1141; Government’s control order ‘problem’, by Jon Silverman, BBC News, 28 June 2006
  66. Q & A: Control orders, by Dominic Casciani, BBC News, 24 May 2007
  67. Report to the United Kingdom Government on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and

    Inhuman or Degrading Treatment or Punishment (CPT) ( 20- 25 November 2005)

    http://www.cpt.coe.int/documents/gbr/2006-28-inf-eng.htm#_Toc142715377

  68. Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, 05/11/2001; CCPR/CO/73/UK, CCPR/CO/73/UKOT, paragraph 18
  69. In Re Applications by Coleman, Avery, Walsh, Mulhern & McElkerney
  70. Nineteenth Report of Session 2006-07, Counter Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, Joint Committee on Human Rights, July 2007, p. 2
  71. Cited at Research reports ‘dramatic jump’ in new law since 1997, Legal Action Group, July 2007, http://www.lag.org.uk/Templates/Internal.asp?NodeID=91991
  72. BIRW submission to the Home Affairs Committee’s Inquiry into Counter- Terrorism Proposals, July 2007
  73. Nineteenth Report of Session 2006-07, Counter Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, Joint Committee on Human Rights, July 2007, p. 14
  74. JJ and others v Secretary of State for the Home Department [2006] EWCA Civ 1141; Government’s control order ‘problem’, by Jon Silverman, BBC News, 28 June 2006
  75. Q & A: Control orders, by Dominic Casciani, BBC News, 24 May 2007
  76. Hooding, sleep deprivation, white noise, food deprivation, and physical abuse
  77. Operation Banner: An analysis of Military Operation in Northern Ireland, by General Sir Mike Jackson GCB CBE DSO ADC, Ministry of Defence, July 2006
  78. In the matter of Coleman, Avery and Others, Court of Appeal, Belfast

    26 and 28 June 2007

  79. Options for pre-charge detention in terrorist cases, Home Office, 25 July 2007
  80. Options for pre-charge detention in terrorist cases, Home Office, 25 July 2007
  81. Report on the operation of the Terrorism Act 2000 by Lord Carlile of Berriew Q.C, June 2007
  82. Section 58 addresses the offence of collecting information likely to be of use to terrorists, where such information may include a photograph and electronic, as well as paper record.
  83. Under the terms of the Sex Offenders Register, Head teachers, doctors, youth leaders, sports club managers and others, including landlords, are notified on a confidential basis of the existence of a local sex offender
  84. Second report of the Independent Reviewer pursuant to section 14(3) of the Prevention of Terrorism Act 2005, Lord Carlile of Berriew Q.C, 19 February 2007
  85. Nineteenth Report of Session 2006-07, Counter Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, Joint Committee on Human Rights, July 2007
  86. Suspect Community, People’s experience of the Prevention of Terrorism Acts in Britain, Paddy Hillyard, Pluto Press: 1993
  87. ECRI General Policy Recommendation No. 11 on combating racism and racial discrimination in policing, European Commission against racism and intolerance, adopted 29 June 2007
  88. Second report of the Independent Reviewer pursuant to section 14(3) of the Prevention of Terrorism Act 2005, Lord Carlile of Berriew Q.C, 19 February 2007
  89. Order on terror suspect quashed, BBC News, 16 February 2007
  90. Government failed to consider criminal prosecution against control order, terror suspect says High Court, Liberty, 16 February 2007, http://www.liberty-human-rights.org.uk/news-and-events/1-press-releases/2007/crim-prosecution-co.shtml
  91. Report to the United Kingdom Government on the visit to the United Kingdom

    carried out by the European Committee for the Prevention of Torture

    and Inhuman or Degrading Treatment or Punishment (CPT) ( 20- 25 November 2005) http://www.cpt.coe.int/documents/gbr/2006-28-inf-eng.htm#_Toc142715377