The Human Rights Act and the Conflict in Northern Ireland
By the time the Human Rights Act 1998 (HRA) came into force in Northern Ireland (in December 1999 for the Northern Ireland Assembly and Executive, in October 2000 for all other public authorities) the troubles were supposedly over. But, in reality, many issues remained to be resolved. These included how to reform the Royal Ulster Constabulary, what changes to make to the criminal justice system and how to service the needs of victims.
To help achieve that goal the Belfast (Good Friday) Agreement of 1998 was saturated with references to the protection and vindication of human rights. The British government promised to complete incorporation of the European Convention on Human Rights (ECHR) into Northern Ireland’s law, ‘with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’ (para 2 of the ‘Rights, Safeguards and Equality of Opportunity’ section in the Agreement). The Irish government also promised to examine the incorporation of the ECHR into Ireland’s law (which it did by an Act of 2003). A Northern Ireland Human Rights Commission was established, one of the duties of which was to advise the British government on what rights should be added to the ECHR to form a Bill of Rights for Northern Ireland: that advice was proffered in 2008 but the British government has still not moved to create a Bill of Rights.
In the absence of a Bill of Rights, therefore, the HRA remains absolutely crucial to the peace process in Northern Ireland, which is still a very divided community. There are three main areas where the HRA has been particularly helpful in maintaining the peace process.
The first is the area of policing. Policing has been revolutionized in Northern Ireland since 1998. The Police Service of Northern Ireland (PSNI), created in 2001, is wholeheartedly committed to applying the HRA and each of the last three Chief Constables has reiterated many times that the main purpose of the PSNI is to protect the human rights of everyone living in Northern Ireland. The PSNI’s performance regarding human rights is very closely monitored by the NI Policing Board, which has a clear framework against which it makes its assessments. Each year a detailed report is issued on the matter, mostly drafted by the Policing Board’s Human Rights Advisor (the first person to hold that post, from 2002 to 2008, was Keir Starmer QC). The PSNI also applies a Code of Ethics which makes multiple references not just to the ECHR but to additional human rights standards agreed by the United Nations. A breach of the Code of Ethics is ipso facto a breach of disciplinary regulations. As a result of its completely new approach to policing, the PSNI now enjoys a very high level of support throughout Northern Ireland, even in republican areas.
The second area where the HRA has operated beneficially is that of dealing with the past. To an extent this is still a very controversial matter in Northern Ireland, but in so far as it has been dealt with to date it is largely because of the HRA. The Act has been crucial in ensuring that investigations into more than 1,000 killings have been reviewed in accordance with the requirements of Article 2 of the ECHR; reviews of about 2,000 further murder investigations remain to be completed. Dozens of inquests have been arranged, several of which have already brought a deal of comfort to loved ones of the deceased in terms of information disclosed, verdicts issued and admissions of responsibility declared. A few prosecutions for unlawful killings or attempted killings have ensued – of members of illegal paramilitary organisations as well as of members of the British security forces.
Thanks partly to the HRA many instances of wrongful past behaviour, including enforced disappearances and ‘punishments’ conducted by paramilitaries, ill-treatment of detainees meted out by police officers and soldiers, and failures of the court system to protect defendants against miscarriages of justice, have been brought to life in the last 20 years. The Act has helped to guarantee that, despite political wrangling in the Northern Ireland Executive and the UK Parliament, the rule of law has been upheld. By excluding the conduct of British soldiers taking place within the British Isles from the application of the Overseas Operations (Service Personnel and Veterans) Bill, currently before Parliament, the government has accepted that HRA standards must continue to apply to military activity in Northern Ireland. In 2020 the UK Supreme Court affirmed that, in relation to one of the most notorious murders of the troubles (that of Mr Patrick Finucane, a solicitor, in 1989) there still had not been an Article 2-compliant investigation into his death ([2019] UKSC 7).
The third area in which the HRA has had a profound effect in Northern Ireland is that of parading. What used to be an extremely contentious phenomenon, leading to many violent incidents during ‘the marching season’ between April and August of each year, is now well regulated by legislation (the Public Processions (NI) Act 1998) which ensures that the provisions of the HRA are taken into account by the police and the Parades Commission whenever decisions are taken concerning the holding of, or the routes to be taken by, parades and marches of all kinds.
Apart from those three main areas in which the effects of the HRA have been so marked, it is important to record that the Act has been influential on how the Northern Ireland Assembly and Executive have gone about their business. The Northern Ireland Act 1998, which transposed the Belfast Agreement and later supplementary agreements into law, prohibits the Assembly and all government departments from passing laws or doing any act which violates the HRA. Likewise, all district councils in Northern Ireland must abide by the HRA, which helps negate any temptation there might be for discriminatory decision-making by such bodies. The result of all these obligations has been a more respectful and harmonious society – even if deep suspicion and indeed hatred still obtains in some quarters.
The fact that decisions by public authorities – such as the Public Prosecution Service, the Prison Service, the Northern Ireland Housing Executive, the Education Authority and the various Health Trusts – can be challenged on human rights grounds (whether or not legal proceedings are commenced) has created a culture which allows every individual to feel that their rights matter.
The post-2000 reforms to the criminal justice system, including the work of the Criminal Justice Inspectorate, are also constructed around the requirements of the HRA and have helped to boost confidence in the independence of the institutions involved. Changes made to anti-terrorism laws to bring them fully into line with the requirements of the HRA have also successfully subverted the assertions of dissident republicans that the legal system is still stacked against them. The same can be said of reforms to the prison system. Statutory guidance on the HRA issued to various institutions by the Attorney General for Northern Ireland has further raised performance and confidence levels.
The rights of women and children, moreover, which were given little attention during the years of conflict, have gained prominence through the HRA. The best example of this is the judgment by the UK Supreme Court in 2018 that the criminalisation of abortion in Northern Ireland was a breach of the HRA. This led within a few months to the enactment of a legislative provision which regularised the position.
Support for the HRA remains strong not just within society as a whole in Northern Ireland but within all political parties there. This is evidenced by the way in which representatives from the five parties which comprise the mandatory coalition government (two ‘unionist’ parties, two ‘nationalist’ parties and one ‘cross-community’ party) sit together on the NI Policing Board and insist upon the PSNI meeting in all respects the standards set by the HRA. The political representatives have learned that protecting human rights harms no-one, especially as the HRA itself allows other interests to be taken into account to the extent that it is fair and reasonable to do so in a democracy. An illustration of this is the UK Supreme Court’s decision to allow the photograph of a rioter in Derry/Londonderry to be published even though the picture was of someone likely to be under the age of 18: the need to prevent and detect crime outweighed whatever privacy rights the rioter was claiming (In re JR38 [2015] UKSC 42).
In short, peace in Northern Ireland is highly dependent on the full applicability of the HRA as currently drafted. Amending it in any way could be very dangerous.
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