Response to 19th Report from Joint Committee on Human Rights: The UN Convention Against Torture

A response from British Irish Rights Watch

1. 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 BIRW welcomes the scrutiny by the Joint Committee on Human Rights into the UK’s compliance with the UN Convention Against Torture, and the recent publication of the Committee’s report. This short submission highlights the areas of the report which caused us concern. We have only commented on areas which fall directly under our mandate.

2. Optional Protocol to UNCAT

2.1 British Irish Rights Watch is encouraged that the Committee has recognised the need for the independent and unannounced inspections of places of detention in Northern Ireland. The Northern Ireland Human Rights Commission (NIHRC) has long advocated that it is best placed to perform this role. Their ability to carry out independent observation of the prison service has been demonstrated by their ground-breaking report, ‘the Hurt Inside’, which examined conditions in Hydebank Wood women’s prison. However, we think that the model provided by HM Prison Inspectorate in England & Wales also provides a good model, but we are concerned that the new Chief Inspector for Justice, Community Safety and Custody proposed in the Police and Justice Bill 2006 will have fewer powers that the current Chief Inspector of Prisons.

2.2 It is a disappointment that the Northern Ireland Office (NIO) has yet to decide on any changes to the NIHRC’s powers. We accept the premise put forward by Minister of State Shaun Woodward, that there is a potential for some overlap between the roles of other public bodies in this area. However, where such overlap may exist a Memorandum of Understanding with the relevant body could be sought to prevent any duplication. As the Commission points out, the powers it is seeking merely bring it into conformity with best practice as recommended by the United Nations. We anticipate that the Commission would only make use of such a power on rare occasions, but the very fact of it having such a power would enhance its effectiveness and thus indirectly promote adherence to human rights standards by the bodies in question.

2.3 BIRW commented in detail on the government’s first and second consultation papers on the NIHRC’s powers, and supported the United Nation’s Committee Against Torture’s recommendation that the NIHRC should be a designated body under the Optional Protocol (OPCAT), a recommendation which the UK has said that it accepts. However, while we continue to believe that the NIHRC should have the power to inspect places of detention, we note that OPCAT provides for the nomination of one or more national mechanisms for the prevention of torture and cruel, inhuman or degrading treatment, and it seems to us that the Criminal Justice Inspectorate in Northern Ireland might also have a useful role to play.

2.4 The proposed changes to the post of Her Majesty’s Chief Inspector of Prisons, as outlined in the Police and Justice Bill, cause BIRW concern. We were encouraged by the Joint Committee on Human Rights recent inquiry into this proposed legislation, and share similar concerns. We do not believe that the proposed single inspectorate (Her Majesty’s Chief Inspector for Justice, Community Safety and Custody) will be compatible with the criteria laid out under the Optional Protocol of CAT; nor do we believe that the independent monitoring of the treatment and conditions of prisoners will be enhanced.

2.5 BIRW have a number of concerns about the proposal to abolish the office of HM Inspectorate of Prisons. Over the years the Inspectorate has developed best custom and practice in a number of areas, such as unannounced inspections and the publication of their reports, which are not laid down in the current legislation governing their activities, and are not specified in the new Bill. We are worried that the very professional and independent culture that HMIP has operated will become lost or watered down when it is subsumed into the larger Inspectorate. For example, the Bill does not even stipulate that prisons must be visited, let alone that they should be visited regularly.

2.6 In relation to Northern Ireland, the Criminal Justice Inspectorate, which is the nearest body to the Inspectorate proposed in the new Bill, actually contracts out prison inspections to HMIP. Once HMIP ceases to exists, it is not clear whether the new Inspectorate will be in a position to offer this service to the CJI in Northern Ireland, nor will the new Inspectorate be able to contract out such services itself, as there will be no agency to undertake the work.

2.7 Most fundamentally, BIRW perceives a conflict of interests between the new Inspectorate’s role in relation to the criminal justice and immigration systems and its duty to protect detainees. The new Chief Inspector will be forever conducting a balancing act between ensuring, and perhaps defending, the effectiveness of the systems that place people in detention with the rights of those detained. This seems to us an impossible task.

3. Extraordinary rendition

3.1. British Irish Rights Watch remains wholly opposed to the use of Memoranda of Understanding as a justification for the deportation of individuals who may face torture. We do not believe that such diplomatic assurances are worth the paper they are written on. There have been several cases, as highlighted in the JCHR report, which indicate that actions in violation of the UN Convention against Torture are, and will continue to be, carried out by the receiving country. Where such assurances have been put in place, the absence of adequate monitoring bodies ensures that where torture is being used, it is unlikely that the sending government will be full aware of it. Similarly, as raised in Chalal v UK, there are no guarantees that the receiving government has adequate knowledge or control of what occurs at ground level, by staff involved in the detention of individuals. We applaud the Committee for voicing their concerns about the government’s policy in this area, but we disagree with the Committee’s view that a public inquiry would be premature. The government’s reluctance to be open about the extent of its participation in this unlawful and indefensible practice, coupled with other violations of human rights law such as detention without trial and house arrest, makes a public inquiry imperative.

3.2 We also note the Council of Europe’s report by Dick Marty, ‘Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states’, which confirms that Prestwick airport has been used as “stopover point” in what Dick Marty describes as a “global spider’s web” of secret detentions and unlawful inter-state transfers. We urge the Committee to do all in its power to ensure that the United Kingdom plays no role of any kind in the abhorrent practice of extraordinary rendition.

3.3 A developed democracy such as the UK cannot hope to combat terrorism by adopting or condoning what are in essence acts of state terrorism. Such a stance only increases the likelihood of disaffection and dissatisfaction among some members of society, which in turn increases the risk of home-grown terrorist attacks.

4. Investigation of deaths involving the security forces

4.1 British Irish Rights Watch is encouraged by the JCHR’s criticism of the delay in the implementation of the European Court of Human Rights’ judgments in the cases of McKerr, Shanaghan, Jordan, Kelly & Ors, McShane and Finucane. BIRW has campaigned vigorously for the UK government’s compliance with these judgments. As the Committee will be aware, the Council of Ministers continues to hold under advisement the UK’s failure to comply with these six judgments. We understand that a second Interim Resolution will be considered by the Council of Ministers in October 2006.

4.2 The recent judicial review, taken by the father of the late Billy Wright, on the issue of whether the Inquiries Act 2005 can deliver an article 2 compliant investigation into his son’s death, illustrates how the government is consistently failing the families of those who died in conflict-related incidents in Northern Ireland. We share the Committee’s view that the Act is unlikely to deliver an effective investigation in the cases of Wright and Finucane, and many other sensitive and complex cases arising out of the conflict in Northern Ireland.

5. Inquests in Northern Ireland

5.1 BIRW are in the process of responding to the draft Coroners Bill. We are concerned that, although the fundamental review of inquests conducted by Tom Luce and his team included Northern Ireland, the draft Bill only applies to England and Wales.

5.2 As Aideen Gilmore of the Committee on the Administration of Justice (CAJ) told the Committee in November 2005, while the McKerr judgment stands in the House of Lords there is the potential for a twin-track system to develop, dividing the expectations and rights of those families who loved one was killed before 1998, and those who were killed after 1998. The question of the retrospectivity of the Human Right Act continues to play a destabilising role in the ability of the people of Northern Ireland to get to the truth about their loved ones’ deaths. The longer the government delays on this issue, the worse it will become. BIRW encourage the Committee to continue to highlight the problems found in the coronial system in Northern Ireland.

6. Inquiries Act 2005

6.1 As indicated above, the UK government continues to fail to adequately discharge its obligations under Article 2. British Irish Rights Watch was a third party intervener, together with CAJ and Amnesty International, in the recent judicial review taken by David Wright, father of the late Billy Wright, leader of the LVF. The Northern Ireland Human Rights Commission also intervened. This judicial review has huge implications for the future of the Inquiries Act, as the Applicant has applied for a declaration that the Act is incompatible with the Human Rights Act 1998 and the European Convention on Human Rights.

7. Historical Inquiries Team (HET)

7.1 While BIRW agree with the Committee that the establishment of the Historical Enquiries Team has an important role to play in helping people in Northern Ireland to come to terms with the past, we draw attention to the fact that the HET is not Article 2 compliant because it reports to the Chief Constable of the Police Service of Northern Ireland and is not therefore independent of the police. BIRW is monitoring the development of the HET and their investigations, but the HET cannot be considered a fully independent body as it is staffed by some PSNI officers, and reports to the Chief Constable of the PSNI.

7.2. We note that in its section on the HET the Committee refers to Northern Ireland as “the Province”. Such a description is offensive to a large number of people in Northern Ireland, as are terms such as “Ulster”, “the six counties”, and “the north of Ireland”. We respectfully recommend that the Committee uses “Northern Ireland” at all times.

8. Deaths in custody and prison conditions

8.1 BIRW is encouraged to see the government has realised the strong and urgent need to improve prison facilities. Like the Committee, we hope that the momentum for change can be sustained. The current condition of women in prison in Northern Ireland is improving at a very slow rate. BIRW continue to advocate that only the development of a separate women-only facility is appropriate for women prisoners.

8.2. We also continue to be concerned that those paramilitary prisoners who have chosen to opt for segregation at Maghaberry prison do not enjoy the same level of facilities as integrated prisoners and have a less favourable incentive scheme. One of our concerns is that long-term prisoners who are kept in a substandard regime, especially when housed alongside other prisoners who are treated better, can more easily become involved in violence and may commit suicide.

9. Use of AEPs in Northern Ireland

9.1 The use of AEPs in Northern Ireland formed the core basis of our submission to the Committee in October of last year. It is disappointing to see that the Committee has not been more critical the use of AEPs. The use of AEPs is not a positive step forward for the PSNI, nor for those who oversee its operation.

9.2 BIRW disagree with the Committee that the use of AEPs against individual aggressors in riot situations can be justified in human rights terms. We were quite frankly astonished by the argument of one of the Policing Board’s Human Rights Advisors, Keir Starmer QC, that when AEPs are deployed during riots in Northern Ireland they are not being used as a means of crowd control because the guidance says they must be aimed at individuals. While we acknowledge the very difficult job that PSNI officers have to perform in such scenarios, we continue to emphasis the fact that the AEP is not the right tool for the job. The CAT’s recommendation on this was quite unambiguous, and the distinction made by Keir Starmer is both specious and unhelpful. In our view, it is instructive that other police forces have not chosen to use AEPs in riot situations. The AEP may be less likely to kill someone than a live bullet, but it is still potentially lethal, particularly so far as children are concerned. It saddens us that the Committee has found their use to be a proportionate response. We agree that, given that AEPs were at their disposal, the PSNI and army did not make disproportionate use of them during last year’s riots in Northern Ireland, but our concern is that they were used at all.

9.3 BIRW is encouraged that the Committee realises the importance of monitoring the discharge of AEPs. However, we would like a similar oversight function to exist for the army. While it is positive to see that Shaun Woodward can see there is a case for the extension of the Police Ombudsman for Northern Ireland’s remit to cover the discharge of AEPs by the army, we believe that such a suggestion needs to be developed further and with more speed. The MoD is notorious for its secrecy, particularly in Northern Ireland. It is important that the army is, and is seen to be, transparent and accountable for its actions. In the same manner, we believe that the use of AEPs by the army and the PSNI should be covered by the same guidance; and that the emphasis should be upon avoiding the use of both lethal and “less lethal” force wherever possible.