How can NGOs and lawyers collaborate to increase the use of international human rights law in the courts? PILS/PILA Conference, 7 June 2012

Transcription

1 How can NGOs and lawyers collaborate to increase the use of international human rights law in the courts? PILS/PILA Conference, 7 June 2012 Introduction I thought it might be useful at the outset to briefly outline some of the work that CAJ has done to promote an understanding of and adherence to international human rights law in Northern Ireland generally. I will then touch upon some of the work being done by other organisations - and hopefully this will inform our discussion on how lawyers and NGOs can collaborate to increase the use of international law in the courts. As an independent human rights NGO, CAJ seeks to ensure that the government complies with its obligations in international human rights law. Much of our earlier work focused on the application of emergency laws in Northern Ireland and we looked to international bodies and individuals to support us in our work and to raise awareness of these concerns. Through our four key programme areas - criminal justice, equality, human rights protection and policing - we monitor the work and policies of government and public authorities against international human rights standards. This includes carrying out research and producing publications, responding to consultations, lobbying and campaigning domestically and internationally to affect change. As a solicitor with CAJ, I provide advice, assistance and, where appropriate, representation to individuals and work with other NGOs and lawyers on common issues of concern. Much of our casework continues to focus on the state s obligations under Article 2 ECHR - in particular addressing the UK s obligations to carry out independent effective investigations into legacy deaths which resulted from killings in controversial circumstances. CAJ represented a number of families before the ECtHR in which the Court held that the UK had violated its procedural obligations under Article 2. These cases, together with others represented by lawyers in private practice, are part of a group of cases collectively known as the McKerr Group of Cases. These judgments, obtained prior to the introduction of the 1

2 Human Rights Act 1998 which gave further effect to the ECHR, have provided the impetus for much domestic and international litigation which has greatly developed Article 2 jurisprudence. We continue to work on the implementation of these judgments domestically and engage regularly with the Council of Europe as it continues to supervise the UK s execution of these judgments some ten years later. Our work on promoting international human rights obligations beyond the ECHR includes lobbying and filing submissions with treaty monitoring mechanisms such as the Human Rights Committee, the Committee against Torture, the Committee on the Elimination of Racial Discrimination as well as making representations to Special Rapporteurs (such as the UN Special Rapporteur on the Independence of Judges and Lawyers in respect of the UK s obligations to carry out independent effective investigations into the deaths of Pat Finucane Rosemary Nelson.) We have also made representations to organisations such as the Regulation and Quality Improvement Authority (RQIA) and the Criminal Justice Inspection (CJI) in relation to concerns about the conditions of our prisons, given their role as National Preventative Mechanisms appointed under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), which the UK ratified in As well as working with domestic NGOs, we also work with international human rights groups such as Amnesty International, Human Rights Watch, the International Federation for Human Rights (FIDH) and the International Commission of Jurists (ICJ). We have found that further weight is added to our submissions and representations by working collaboratively with these larger organisations in the international field. Methods of NGO/lawyer collaboration Information sharing There are a number of ways NGOs and lawyers can work effectively together to use international human rights law in the courts. As well as taking cases in their own name, 2

3 NGOs can often prove to be a useful resource for lawyers in busy practices to assist in their litigation. The provision of research materials, publications and expert evidence from NGOs who regularly engage with international treaty monitoring bodies can be of great assistance. Given that NGOs have traditionally used the soft law international standards more than lawyers, their knowledge of the development of international standards may prove useful. Lawyers who regularly raise public interest issues in litigation such as judicial review proceedings will have an extensive knowledge of the court process and the pros and cons of engaging in litigation. This expertise can be shared with NGOs to inform their strategic work and to help identify the most suitable cases to litigate. Third Party Interventions by NGOs As well as assisting in the preparatory stages of litigation, it may be appropriate on occasion, for an NGO to file a third party intervention. Their specialist knowledge of international human rights law can prove to be a valuable resource and may assist a court in reaching an informed decision based on a wide range of international human rights standards. NGOs who do not have in-house lawyers may find it beneficial to work with those with inhouse lawyers who are familiar with the process of making a third party intervention. Lawyers may consider it useful to invite an NGO (or independent statutory bodies such as the Human Rights and Equality Commissions) with particular expertise to intervene in proceedings in the hope that this will assist their case. While this may be the eventual outcome, there is of course no guarantee that an intervention will do this. The guidance set out by the Public Law Project (Third Party Interventions - a practical guide), by Justice (To Assist the Court: Third Party Interventions in the UK) and the paper by Michael Fordham QC (Public Interest Interventions in the Supreme Court: Ten Virtues) are great sources of assistance for a prospective intervener. They set out some of the key considerations to bear in mind when making a third-party intervention. In summary, some of the factors which may inform a decision to intervene include: the identification of case, the timing of the intervention, the attitude taken by the 3

4 parties to a potential intervention, the added value of such an intervention, the public interest, the capacity of the NGO and of course the perennial issue of costs. In addressing some of these issues, NGOs may find it useful to combine resources and expertise by filing joint interventions with other domestic/international NGOs working on the same issues. CAJ together with Amnesty International and British Irish RIGHTS WATCH filed written submissions in the judicial review taken David Wright in Re Wright s application [2006] NIQB 90. This was a challenge to a conversion of the Inquiry into his son Billy Wright s death into an Inquiry under the Inquiries Act 2005 and was later subject to appeal in Re Wright s application [2007] NICA 24. These submissions relied on both ECHR jurisprudence and other international standards including the United Nations Principles on Extra-Legal Executions. CAJ has also filed written submissions jointly with British Irish RIGHTS WATCH in a challenge to extended pre-charge detention provisions under section 41 and schedule 8 of the Terrorism Act 2000 in Re Duffy & Ors [2011] NIQB 16 focusing on both ECHR and other international standards such as Article 9 of the Universal Declaration of Human Rights (UDHR) and Articles 9 and 14 of the International Covenant on Civil and Political Rights (ICCPR). While not commented upon in the written judgment, when the Lord Chief Justice delivered it he thanked the interveners for their contributions. The impact of interventions can sometimes however be hard to measure and, where appropriate, it may on occasion be more effective to seek permission to make both oral and written submissions. The decision to seek leave to intervene in writing or to do so orally also will take into account the comments of the House of Lords in Re E s application [2008] UKHL 66. In these proceedings, which challenged the policing of the protest at the Holy Cross Primary School in North Belfast, there were a number of submissions by both statutory and nongovernmental organisations. While Baroness Hale praised the value of some of the written submissions, the comments of Lord Hoffman on the role of interveners still resonates: 4

5 2...In recent years the House has frequently been assisted by the submissions of statutory bodies and non-governmental organisations on questions of general public importance. Leave is given to such bodies to intervene and make submissions, usually in writing but sometimes orally from the bar, in the expectation that their fund of knowledge or particular point of view will enable them to provide the House with a more rounded picture than it would otherwise obtain. The House is grateful to such bodies for their help. 3. An intervention is however of no assistance if it merely repeats points which the appellant or respondent has already made. While his comments, which are incorporated into the Supreme Court Practice Direction on interventions, may prove to be a chill factor for potential interveners, and it is important for NGOs and others to exercise caution when considering intervening, the important role they can play in illuminating international human rights standards is demonstrated in a number of other cases. In Re NICCY, [2007] NIQB 115, which challenged the legality of the defence of reasonable chastisement of a child, written submissions were filed by the Children s Law Centre, Save the Children and the Parents Advice Centre which included an analysis of Articles 3, 8 and 14 ECHR, Articles 3, 19 and 37 UNCRC, concluding observation of the UN Committee on the Rights of the Child, a UN General Assembly report, Article 17 of the European Social Charter, Council of Europe as well as domestic legislation. The usefulness of their submissions was duly noted by the Court: [23]... I am grateful for the opportunity to do so which has been afforded by the input of the interveners. Moreover the extensive analysis of the UNCRC has also served to add a perspective to my understanding of its role.. [24] I noted the international input which the research from these interveners afforded me and in particular the contributions worldwide. The detailed statements emanating from the General Assembly of the United Nations provided a very helpful 5

6 backdrop to the submissions made by the applicant. The helpful listing of those States which have achieved full prohibition laws prohibiting corporal punishment in the home complemented research which I had commissioned on my own behalf and furnished to counsel on this issue. CAJ s earlier work against the use of torture and other cruel, inhuman or degrading treatment or punishment informed our decision to jointly intervene with 13 other domestic and international NGOs including Amnesty International, British Irish RIGHTS WATCH, Interights and Liberty in the case of A and Others v UK [2005] UKHL 71 which challenged the admissibility of evidence obtained by torture and other ill treatment before the Special Immigration Appeals Commission. That intervention focused on the UK s international obligations under Article 3 & 6 ECHR, Article 15 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (UNCAT), Article 7 of the International Covenant on Civil and Political Rights 1966 (ICCPR) and Article 5 of the Universal Declaration on Human Rights (UDHR). The Court in this matter noted the importance of a wide range of instruments when interpreting the ECHR: 29. Article 31 of the Vienna Convention on the Law of Treaties reflecting principles of customary international law, provides (in article 31(3)(c))that in interpreting a treaty there shall be taken into account together with the context, any relevant rules of international law applicable in the relations between the parties. The European Court has recognised this principle...the Court has in its decisions invoked a wide range of international instruments, including the United Nations Convention on the Rights of the Child 1989 and the Beijing Rules...the Council of Europe Standard Minimum Rules for the Treatment of Prisoners... 6

7 A more recent example of the merits of collaboration between lawyers and NGOs is the recent case of Re JR 47 [2011] NIQB 42. This application taken by in-house lawyers in the Law Centre NI challenged the policy of resettlement of people with mental health and learning disabilities - the particular factual matrix of the case involved a patient with a mild learning disability voluntarily residing at Muckamore Abbey Hospital for over 11 years. While the application was unsuccessful on all grounds, which included reliance on Articles 8 and 14 ECHR, the court praised the quality and economy of the submissions made on behalf of the applicant. It also commended the written intervention by the Mental Disability Advocacy Centre (MDAC) an international human rights organisation based in Budapest which advances the rights and children and adults who have intellectual and/or psycho-social disabilities. While noting that the submission focused on the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) - an international treaty which has not been incorporated in domestic law - the court considered the intervention by MDAC to be an extremely helpful one: [21]...Their written submission is a model of its kind and MDAC is to be commended accordingly. It focuses particularly on the United Nations Convention on the Rights of Persons with Disabilities ( the UN Convention ), which entered into force on 3 rd May 2008 and was ratified by the United Kingdom on 8 th June While this international treaty does not create new rights, it is considered to be the first legally binding instrument which comprehensively reaffirms and reinforces existing civil, political, economic, social and cultural rights in a framework specific to persons with disabilities. At the heart of the MDAC submission is Article 19 of the UN Convention, which is entitled Living Independently and being included in the Community. Developing NGO-Lawyer relationships Many NGOs holds roundtables, seminars, conferences, engage with the media and provide regular work updates through casework bulletins and newsletters to disseminate the work 7

8 that we do, based on international human rights standards. We often form alliances with other NGOs and work closely with lawyers on common issues of concern. Working groups of NGOs and lawyers can prove to be a useful resource which is of mutual benefit. Many NGOs have working groups which comprise of other NGOs and lawyers working on common issues of concern for example CAJ works closely with other NGOs and lawyers on Article 2 ECHR cases and the Law Centre NI holds regular practitioner meetings in social security, community care and immigration to bring together advisers to discuss legal, policy and practitioner developments. On other matters, it is worth noting that the Human Rights Commission has powers to take a case in its own name. It is also worth noting that under sections 5-6 of schedule 10 of the Northern Ireland Act 1998 (as amended) the Office of the Attorney General for NI (AG) is to be notified about any challenge to devolved powers which arise in a court or tribunal, and the AG can intervene as a third party (not necessarily to defend the government) in the proceedings. Conclusion NGOs can share their expert knowledge of international human rights law and how to effectively engage with the treaty monitoring bodies with lawyers. The provision of pro bono advice by lawyers, even initially, can prove of great assistance to NGOs with limited resources and capacity. Where they do not have their own in-house lawyers, they may also refer cases to lawyers in private practice given their relationships with affected communities on the ground. Other forms of assistance that lawyers can provide to NGOs include becoming a member, which adds support to an organisation s objectives, and participation on an NGO s board which can help inform and direct future strategic litigation in accordance with an organisation s aims and objectives. The use of the international human rights law in the courts through reliance on UN treaties has been demonstrated through examples such as UNCAT, UNCRC and UNCPRD and should continue to be built on. We should also perhaps consider more creative use of other Council 8

9 of Europe Treaties beyond the ECHR such as the European Charter of Fundamental Rights, European Social Charter and European Charter for Regional and Minority Languages. An NGO, like CAJ, who is a member of the PILS Project Stakeholder Forum, may also consider it appropriate to make an application to its Board as they can, subject to its criteria, provide financial and or legal assistance in public interest cases that raise human rights or equality issues. While lawyers may often focus on the immediate outcome of their litigation, NGOs who have been working on issues central to a case will be keen to ensure that learning from a judgment is disseminated widely. Where successful, efforts will be made to ensure that this is communicated at the grass roots level to those affected and to follow up on implementation of the judgment. Even where judgments are not favourable, NGOs will use the learning to inform future strategic litigation and to lobby and campaign for reform on that issue. There is however always room for improvement in our work: any suggestions on future collaborative ways of working between lawyers and NGOs to increase the use of international human rights law in the courts are very welcome! Gemma McKeown, CAJ gemma@caj.org.uk 9