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. Case