The Protection of Human Rights by law in Northern Ireland (1977)

The Protection of Human Rights
by law in Northern Ireland

Standing Advisory Commission on Human rights

Presented to Parliament by the Secretary of State
for Northern Ireland by Command of Her Majesty
November 1977

Published in London by,
HER MAJESTY'S STATIONERY OFFICE, 1977

Cmd 7009

ISBN 0 10 170090 3

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1.	Introduction
2.	Northern Ireland: General Considerations
		Community Division
		The Violence
		Political and Constitutional Background
		Legislation affecting Human Rights
3.	Constitutional Background in the United Kingdom.
4.	A Survey of Evidence and Opinions
5.	The International Obligations of the United Kingdom
		Introductory observations
		The European Convention on Human Rights
		Scope and Effect
		Enforcement Procedures
		Issues raised under the Convention
		The Obligation to implement the Convention
		Status of the Convention in internal Law
		Status of the Convention in United Kingdom Law
		Effects of incorporation of the Convention into United Kingdom Law
		European Community Law
6.	What needs to be Done?
		A Bill of Rights-The Arguments
		Improvements in Existing Law
		Police Powers
		Equality of Treatment
		Administrative Law
		Standing Advisory Commission on Human Rights
7.	Incorporating the European Convention on Human Rights
		Nature and Scope of the Fundamental Rights and Freedoms. .
		Derogation
		Constitutional Status and Priority
		Enforcement
8.	Summary of Conclusions and Recommendations
		Principal Findings and Recommendations
		Proposals concerned with the European Convention on Human Rights
Appendix
A	List of Witnesses
B	Texts:
		The European Convention on Human Rights ..
		Protocol No 1
		Protocol No 2
		Protocol No 4
		Notices of Derogation
C	The International Covenant on Civil and Political Rights
	Texts:
		The Covenant
		The Optional Protocol
		United Kingdom Reservations on Ratification of the Covenant
D	Select Bibliography

1.01 Two centuries ago, when the representatives of the United States of America assembled in general congress to make their historic declaration of independence, they proclaimed as self-evident truths that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; and that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

1.02 Two hundred years later, these truths are far from being self-evident. In Northern Ireland men of violence seek to deny art equal right to life, liberty and the pursuit of happiness to those who do not support them. They withhold consent from any government to secure any rights except their own . Their weapons are the bomb and the bullet. The consequences of the continuing state of emergency in Northern Ireland cannot be measured in the monthly statistics of murders, maimings and explosions but in the human terms of thousands of individual cases of bereavement, mutilation and deep suffering.

1.03 It was against this background that we informed the then Secretary of State for Northern Ireland in May 1975 of our decision to undertake a study of a possible Bill of Rights for Northern Ireland and of the extent to which existing legislation provided adequate protection for human rights. It was recognised that such a study might not be strictly within the terms of reference of the Commission,[1] but we felt that it was a task which we should undertake. We recognised that the protection of human rights by law was a subject whose practical significance might be limited by the present emergency in Northern Ireland, but the extent of the interest in this subject both in Great Britain and Northern Ireland has confirmed our view that even during the current state of emergency it would be useful to examine the issues involved carefully and objectively.

1.04 We described the nature and purpose of the study in our first Annual Report [2] published in November 1975 when we emphasised that we were mindful of the futility of mere sloganising. The work has proved complex and time-consuming but we hope that this Report will make a positive contribution to the debate on human rights.

1.05 In September 1975 Mr Anthony Lester, QC (former Special Adviser to the Rt Hon Roy Jenkins at the Home Office) and Dr A G Donaldson (former Director of Law Reform for Northern Ireland) were appointed as part-time Special Advisers to assist us in our study. Since many of the issues which we have had to consider involved detailed questions of international and constitutional law, we have had to place a heavy burden upon them in helping us to make our assessment, and we are indebted to them for their contribution to our Report.

1.06 We also wish to express our gratitude to our Secretary, Mr Lionel Jacobs, and to his supporting staff for their cheerful willingness to respond to our many requests for assistance.

1.07 In March 1976 we published a Discussion Paper[3] drawing attention to arguments for and against a Bill of Rights so that, during the next stage of our work, we might seek to obtain the views of interested individuals and groups. We expressed the hope that neither the broad scope of the paper nor the complexity of the problems which it raised would deter anyone from expressing views. We received representations from a wide range of individuals and organisations in Northern Ireland. We also obtained views from persons and bodies in Great Britain but we did not actively seek assistance from as wide a spectrum of opinion in Great Britain as we did in Northern Ireland; in particular we did not receive evidence from political parties in Great Britain, from the TUC, the CBI or from other interested organisations. It follows therefore that insofar as our recommendations relate to the United Kingdom they are made principally from a Northern Ireland viewpoint. We invited some of those who had made written submissions to supplement them orally. We are most grateful to everyone who helped us.

1.08 Much of the Report is, inevitably, detailed and technical. But we have attempted to present as much of it as possible in a form which is capable of being understood by those who have no special knowledge of the subject. We doubt, however, whether our conclusions and recommendations will be fully understood without a careful reading of the entire document.

1.09 The essential features of an enforceable Bill of Rights are usually regarded as two-fold;[4] that is, it should assert rights of a wide-ranging and fundamental kind in broad and general terms: and it should have the special status of a constitutional and quasi-permanent document, enforceable by means of the judicial process but superior to ordinary legislation. Since the scope of our study has been concerned with the protection of human rights by law we have concentrated upon those human rights which are generally regarded as being capable of being legally enforceable.

1.10 The form of the Report is as follows. In Chapter 2 we outline some of the historical and constitutional background to the present position of Northern Ireland; then we refer to recent measures which have been enacted for the protection of human rights in Northern Ireland; and we make some general observations on the existing situation in Northern Ireland. In Chapter 3 we describe some relevant aspects of the constitutional background of the United Kingdom. In Chapter 4 we survey the evidence and opinions which we have considered in the course of our study. In Chapter 5 we set out the obligations of the United Kingdom under international treaties in the field of human rights with particular reference to the European Convention and proceed to examine some of the consequences which would follow from any decision to incorporate the European Convention into the domestic law of the United Kingdom. In Chapter 6 we discuss whether there should be further legal protection for human rights in Northern Ireland and if so by what method or methods it should be provided. In particular we discuss whether any Bill of Rights should apply to Northern Ireland only or to the United Kingdom as a whole. In Chapter 7 we put forward the details of our proposals in so far as they concern the European Convention on Human Rights. Finally, in Chapter 8 we summarise our conclusions and recommendations.

We have divided our conclusions and recommendations into two parts. The first part sets out our principal findings, together with our principal recommendations. The second deals in detail with those of our Proposals that are concerned specifically with the European Convention on Human Rights.

1. A substantial body of law is now in force in Northern Ireland which is designed to protect various aspects of human rights. This existing body of law is impressive and should not be underrated (paragraph 2.18).

2. The traditional method of introducing detailed reforming measures to deal with specific problems is valuable and should be pursued. A Bill of Rights is not a substitute for such action and should not of itself be considered a sufficient or adequate approach (paragraph 6.03).

3. Parliament must necessarily remain at the centre of our constitutional arrangements for redressing grievances by enacting detailed reforming measures to deal with specific problems and by calling responsible bodies to account. However, there are clear limits to the reliance which can be placed on the operation of the democratic process in individual cases. Human rights cannot be always protected by the parliamentary process and unfortunately cases may occur of the misuse of power by central or devolved government or other Public authorities (paragraph 6.09).

4. There is widespread support in Northern Ireland for a Bill of Rights. However, examination of these demands has revealed a wide variety of different approaches and emphases, particularly in relation to the scope and character of the rights and freedoms to be guaranteed and the means by which a Bill of Rights should be enforced (paragraph 4.05).

5. A substantial majority of witnesses favoured a United Kingdom measure, especially in the context of direct rule. It seemed that a Bill of Rights limited to Northern Ireland would not be widely welcomed (paragraph 4.07).

6. There are important legal and constitutional considerations which would make an exclusively Northern Ireland Bill both inappropriate and undesirable in the context of the existing constitutional framework of the United Kingdom. (paragraphs 3.01, 4.07).

7. There is widespread recognition that those who live in the United Kingdom should so far as possible share similar fundamental rights and freedoms regardless of the place in which they reside. Any other approach would underline differences in the nature of citizenship and might prove counter-productive (paragraphs 3.01 and 4.07).

8. The overwhelming weight of evidence given to us favoured the use of the European Convention on Human Rights as the basis for any Bill of Rights whether for Northern Ireland or for the United Kingdom (paragraph 4.08).

9. There is a need for human rights to be given further protection in Northern Ireland and one of the ways in which this should be achieved is by the enactment of an enforceable Bill of Rights for the United Kingdom. The best way to do this would be to incorporate the European Convention on Human Rights into the domestic law of the United Kingdom as a whole (paragraph 6.05). We summarise the way in which we think this should be done in the second part of these conclusions.

10. In the event of the return of devolved legislative and executive functions to a Northern Ireland Government (either before or after the incorporation of the European Convention into domestic law) it would be desirable for the enabling legislation to include a clear and enforceable Charter of Rights for Northern Ireland. The guarantees in this Charter should be consonant with those which may accompany devolution in other parts of the United Kingdom. The Charter could be more comprehensive than the European Convention and it should be framed in the light of whatever at the time seem to be the special needs of the people of Northern Ireland (paragraph 6.15).

11 Any Bill of Rights will be diminished in value unless it can operate within a framework of social, political and constitutional values which is sympathetic to it. Such sympathetic attitudes will need to be positively encouraged (paragraph 6.13).

12. A Bill of Rights will not touch the central problem of violence. It would be most unlikely to influence those engaged in terrorism or to lead to a reduction in the level of violence suffered by the whole community. While the present emergency lasts any Bill of Rights would be seriously weakened in its impact by the need to suspend important provisions in the interests of public security. Any such suspension of rights must be constantly scrutinised to establish to what extent it is necessary (paragraph 6.12).

13. A comprehensive Charter of Rights for Northern Ireland would not in itself create a consensus about the form of devolved government for Northern Ireland or bring about a widely accepted devolved government. Such a Charter might be a necessary part of a constitutional settlement in which all political parties and persons interested would be consulted; but it could never be a substitute for such a settlement (paragraph 6.16).

14. Our investigation revealed two specific areas in which we think that the protection provided by the existing law could and should be improved. We recommend that attention should be given to these matters irrespective of what happens to our recommendation about incorporating the European Convention. They concern (a) police powers and (b) administrative law (paragraph 6.18).

15. There is a strong case for the clarification and codification of police powers and emergency powers within the United Kingdom. An independent inquiry should be set up to consider these matters. It is desirable that such an inquiry should not be confined to Northern Ireland alone. However, if the Government feels unable to accept this recommendation in terms of the United Kingdom, we urge that an inquiry be instituted in Northern Ireland (paragraph 6.20).

16. An independent inquiry should be instituted into I the substance and institutions of our system - of administrative law with a view to increasing the rights and freedoms of the individual in relation to public authorities. Such an inquiry could not be effective if it was confined to Northern Ireland and, accordingly, should embrace the whole of the United Kingdom (paragraph 6.22).

17. Consideration should also be given to reconstituting the Standing Advisory Commission on Human Rights so as to widen its powers and functions. This recommendation is linked with but is not dependent upon implementation of our recommendation in paragraph 8 below for a new Commission for Human Rights (paragraph 6.23).

1. The relevant provisions of the European Convention and of its First Protocol and Fourth Protocol (which should be ratified subject to necessary reservations: paragraph 7.04) should be incorporated as they stand; no attempt should be made to express them in the more specific language which is typical of our statute law (paragraphs 7.02, 7.06). The incorporating statute should require courts in the United Kingdom to have regard to the published judgements and decisions of the European Court and Commission (paragraph 7.07).

2. The most practicable method of securing desirable improvement and clarification of the European Convention would be by making appropriate changes to the Convention on the international plane (paragraph 7.09). In particular, the United Kingdom Government should play an active role in seeking to obtain agreement within the Council of Europe on the inclusion of as many as possible of the rights and freedoms of the U.N. Covenant in an amended version of the European Convention (paragraph 7.01), and on the amendment of the Convention procedures so as to enable the European Court of Human Rights to give preliminary rulings at the request of national courts (paragraph 7.07).

3. The incorporating statute should preserve the effect of any existing derogation and provide for any future derogation from the obligations imposed by the European Convention. Any existing or future derogation should be subject to periodic Parliamentary approval. The justification for any derogation should be scrutinised by Parliament rather than by our courts. However, the proposed Commission for Human Rights (see paragraph 8 below) should be empowered to hear evidence and to report its views to Parliament about the exercise of the right of derogation, thereby strengthening the democratic safeguard of accountability to Parliament (paragraph 7.12).

4. The binding force of international law constitutes a sufficiently effective barrier against the enactment of legislation contrary to the provisions of the European Convention as to make it unnecessary to attempt to entrench the incorporating statute against subsequent amendment or repeal by Parliament(paragraphs 6.08 and 7.13). However, it is essential that the Convention and its Protocols as incorporated should have equivalent constitutional status and priority to directly applicable provisions of European Community law under the European Communities Act 1972. They would therefore need to be paramount over (a) existing Acts of Parliament; (b) existing or future subordinate legislation; (c) action by the Executive or other public authorities; and (d) the common law; and subsequent Acts of Parliament would , in the absence of an express declaration to the contrary, be so construed and applied as not to abridge or infringe any of the rights and freedoms declared and recognised by the incorporating statute (paragraph 7.14).

5. Legal issues under the incorporating statute should normally be decided in the ordinary courts and tribunals as and when they arose. However, it would be desirable for some issues to be able to be referred to a higher court at a preliminary stage; for example, where the only purpose of a case was to determine the relationship between the incorporating statute and another Act of Parliament (paragraph 7.19).

6. The ordinary courts should be entrusted with the task of determining whether our governmental and other public authorities had acted in violation of the Convention or its Protocols. Although this would exclude the possibility that new legal rights and remedies would be directly enforceable under the incorporating statute against private individuals and organisations, it would not exclude the possibility that the United Kingdom Government or their agents might be held liable for some acts or omissions by private individuals or organisations (paragraphs 7.10, 7.11).

7. The remedies for violations should be defined in the incorporating statute (paragraph 7.20).

8. A commission for Human Rights should be established and be given similar powers to those already conferred upon the Equal Opportunities commission and the Commission for Racial Equality. Legal and other assistance should be able to be given to individual complainants by the Commission. It should be empowered to investigate, to bring or to be joined as a party in legal proceedings under the incorporating statute, and to undertake or assist research and educational activities. The Commission should also be empowered to make recommendations about changes in existing law and practice which would facilitate the better protection of human rights, and to draw the attention of Parliament to any apparent inconsistency between the incorporating statute and other legislation (paragraphs 7.21, 7.22).

9. Although it might not be practicable for some time to enact a free-standing Bill of Rights (i.e., one which was not based upon the European Convention) for the United Kingdom as a whole or Northern Ireland alone, the incorporation of the Convention into United Kingdom law should not inhibit the examination of more far-reaching constitutional proposals. At the same time, incorporation of the Convention should not be deferred pending such a wide-ranging enquiry (paragraph 7.25).