Human Rights Considerations and the Independent Monitoring Commission

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1 Human Rights Considerations and the Independent Monitoring Commission Introduction 1. Officials assigned to prepare for the work of the Independent Monitoring Commission (the IMC) have sought advice on human rights considerations from the Northern Ireland Human Rights Commission (the NIHRC). 2. The IMC is the international body delineated in the Agreement of 25 November 2003 between the UK Government and the Government of Ireland (the IMC Agreement), and further by the UK Parliament in the Northern Ireland (Monitoring Commission etc.) Act 2003 and by the Oireachtas in the Independent Monitoring Commission Act The IMC is designed to monitor some aspects of demilitarisation and paramilitary activity and to report to the two Governments. In the event of its determining that a party in the Northern Ireland Assembly, or Minister in a restored Northern Ireland Executive, had failed to comply with certain commitments, the IMC would be able to recommend certain sanctions of a political and financial nature. 3. The NIHRC is a statutory body created by the Northern Ireland Act It has a range of functions including reviewing the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights, 1 advising on legislative and other measures which ought to be taken to protect human rights, 2 advising on whether a Bill is compatible with human rights 3 and promoting understanding and awareness of the importance of human rights in Northern Ireland. 4 In all of that work the Commission bases its positions on the full range of internationally accepted human rights standards, including the European Convention on Human Rights (ECHR), other treaty obligations in the Council of Europe and United Nations systems, 1 Northern Ireland Act 1998, s.69(1). 2 Ibid, s.69(3). 3 Ibid, s.69(4). 4 Ibid, s.69(6).

2 2 / and the non-binding or soft law standards developed by the human rights bodies. 4. The NIHRC has given careful consideration to the request from officials for advice as to the human rights standards to which the IMC should refer in the course of its operations. The NIHRC can address only the rights issues around the IMC and its proposed powers and functions, without reference to the desirability or otherwise of the IMC in political or security terms (except in so far as decisions in the latter arenas need to respect and secure human rights). Before referring to specific human rights provisions it is necessary to address some issues that could bear on the propriety of the NIHRC offering any advice. The compatibility of the IMC with the right to self-determination 5. The legitimacy of the IMC has been questioned on the basis that its creation is not only outwith the scope of the Belfast (Good Friday) Agreement (hereafter the GFA) but that it seriously obstructs the implementation of the GFA. If the GFA ought to be regarded, in terms of international law, as an exercise of the right to self-determination of peoples a right asserted in a number of human rights instruments it might be argued that, to the extent that the IMC prevented the full implementation of the right to self-determination, its very creation constituted a human rights violation in and of itself. 6. It is not clear that the GFA represented an exercise in self-determination. An armed organisation not unconnected with the party most opposed to the creation of the IMC has itself claimed that the GFA did not constitute an act of self-determination, and that party has not had recourse to arguments about that right in its statements on the IMC. In any event, the precise content, and the status as a human right, of the right of peoples to self-determination are today rather uncertain. It is questionable whether anything agreed between the sovereign Governments of the UK and Ireland in relation to the governance of Northern Ireland, but not directly affecting the territorial integrity of either state, could engage a human right to self-determination. 7. The Human Rights Commission therefore does not consider that the possible engagement of the right to self-determination precludes it from offering human rights advice to the IMC. The compatibility of the IMC with democratic rights 8. There is also the related but distinct question of whether the endorsement of the GFA by referendum in 1998 gave rise to a human rights obligation on both states to implement the Agreement, in terms of the democratic rights set out in the ECHR (Article 3 of the First Protocol) and in the International Covenant on Civil and Political Rights (ICCPR: Article 25). If it did, it could then be argued that the creation of the IMC, to the extent (if any) that it obstructs implementation of the GFA, interferes with a human right. 9. However it should be noted that neither the Covenant nor the Council of Europe instrument assert absolute rights in this area; both allow for derogation.

3 3 / It is also arguable that, given the evidence of waning support for the GFA, at least in Northern Ireland, the GFA is no longer entitled to the protection of the relevant Articles to the extent (if any) that it could claim in Alternatively it could be argued that the creation of the IMC is intended to secure implementation of the GFA, and so, rather than conflicting with the relevant obligations, may be required by them. 10. Whether there is in fact scope for the IMC to interfere with implementation of the GFA depends, first, on the attitude of the parties to the IMC and, second, on whether anything done by the IMC impacts on the GFA process. Sinn Féin continues to portray the IMC initiative as contrary to the letter and spirit of the GFA, and if as seems sadly not unlikely things occasionally happen in the wider community that could trigger recommendations from the IMC to penalise certain parties or Ministers, then it is not unreasonable to suggest that the GFA is being obstructed by the monitoring and its consequences. While many would counter that with the suggestion that it is the monitored misbehaviour that is the real problem, it is apparent that the IMC Agreement and Acts created entirely new mechanisms for addressing such misbehaviour by altering what might otherwise have been the course of the GFA processes. 11. While the creation of the IMC engages concerns around the right of the electorate to determine the conduct of public affairs, the IMC Agreement suggested in the Preamble and Article 3 that its purpose was to create trust and confidence among Northern Ireland parties so as to facilitate a transition to peace and stable and inclusive devolved government based on the GFA. That comes close to asserting that the IMC is at least ancillary, and may be essential, to the realisation of the GFA, and thus of the human right to participative democracy (and perhaps also, in so far as the GFA may be an exercise of the right of self-determination, that it helps to secure that right). 12. The NIHRC is not at present persuaded that any doubts about the compatibility of the IMC initiative with democratic rights require the NIHRC to refrain from engaging with the IMC. Human rights proofing of the policy decisions 13. The NIHRC s advice on human rights aspects of the IMC initiative was not sought by Government prior to or after the IMC Agreement, nor was the Northern Ireland (Monitoring Commission etc.) Bill referred to it for comment. It would be open to the NIHRC to say that, given that it was not consulted on human rights aspects of the creation of this entity, it thinks it inappropriate to provide the IMC with operational guidance. 14. However that would run counter to the NIHRC s duty and inclination to provide human rights advice to the best of its ability, and is not the approach it has taken in other such instances. Need for independent legal advice

4 4 / 15. A final preliminary point is that, even when the NIHRC or any other agency provides advice or guidance to the IMC, ultimate responsibility for guaranteeing that the IMC complies with human rights rests jointly and severally with the two sponsor Governments. The UK Government is responsible for ensuring compliance with the obligations that it has assumed under those human rights treaties to which it is party, and the Irish Government in respect of its own treaty obligations, which in this area are more or less identical. 16. To the extent that the full operation of the IMC implicates certain UK public authorities subject to the Human Rights Act 1998 (the HRA), which domesticates the main provisions of the ECHR and imposes duties of compliance, those authorities have individual responsibilities, with the UK Government having the obligation to direct and monitor their activities for HRA compliance. The recent incorporation of the ECHR in Irish law will have similar consequences for each and every organ of that state that has dealings with the IMC, obliging them to act compatibly with the Convention rights. 17. The NIHRC is a small agency that is not resourced to provide detailed operational advice to public sector bodies on all aspects of their functioning as they relate to obligations under the HRA and human rights law in general. There remains a need for agencies whose activities may impact on human rights that includes most public bodies, and certainly includes the IMC to acknowledge, attend to and where necessary seek professional legal advice on their own obligations and potential liabilities under human rights law. 18. In that context, what follows is not a comprehensive response to the request for advice on what human rights standards the IMC s commissioners and staff would need to bear in mind when carrying out their functions. We can indicate some of the standards that appear to us to require particular attention, but stress the need for the IMC, the two Governments and those public-sector bodies dealing with it in both states to secure their own legal advice. Specific human rights considerations 19. We would now like to outline some of the human rights standards and principles that seem to us to be most pertinent to the intended functions of the IMC. We are not providing detailed guidance but rather setting out what seem to us to be the most salient points; it is up to the IMC and the Governments to pursue these matters as they see fit, but we are ready to consider any request for further views or information and to respond to the extent possible within our statutory powers and resources. 20. The right to life asserted in, for example, Article 2 of the ECHR is clearly engaged by the persistence of paramilitary violence. The IMC was presumably intended, by and large, to help secure that right by discouraging such activity. It remains to be seen whether, in practice, it will have that effect. Article 2 considerations could oblige the sponsor Governments to dismantle the IMC if it transpired that its actual effect was to increase the likelihood or intensity of violence by, for example, alienating certain parties or movements from

5 5 / constitutional politics. It is difficult to offer the staff and commissioners of the IMC any useful advice on how this overarching Article 2 consideration might inform them in the conscientious exercise of their duties, since it relates to whether the IMC ought to exist at all. On the other hand, Article 2 imposes very specific obligations on the IMC in respect of the right to life of individuals who could be directly endangered by its work; for example, it should as far as possible avoid statements likely to result in attacks on named or identifiable individuals, such as by improper attribution of responsibility for criminal acts, or by exposure of intelligence operatives or their informers. 21. Attention needs to be paid to the potential impact of disqualification and party funding measures with the right to free and fair elections and with participation rights (Art. 3 Prot. 1 ECHR, Art. 25 ICCPR). The fact that these measures are subject to Assembly resolution provides a degree of protection but there remains the fact that some members or parties with valid electoral mandates risk being excluded from or handicapped in exercising those mandates, and also that, to the extent that any party relies partly on revenue from the salaries of its elected representatives, it may be disadvantaged (including electorally) by the loss of funding. It is safe to assume that a punitive resolution directed at any Minister or party will be supported only by parties that oppose that party; it is therefore foreseeable that anyone, or any party, so punished will complain that the decision was wholly political, discriminatory and arbitrary, and aimed at depriving the person or party of office and/or income and thereby attacking the right of his/her or its electorate to equal representation and participation in public affairs. The financial impact could also be presented as discriminatory interference with property rights (Art. 12, with Art. 1 Prot. 1 ECHR), although a public interest defence could be asserted. 22. To the extent that the non-discrimination provisions in section 76 of the Northern Ireland Act 1998 may be said to constitute human rights law, but also in relation to the legal and practical difficulties that could arise, the NIHRC would draw attention, first, to the difficulty of reconciling with s.76 the political penalties associated with IMC determinations and, second, to the scope that s.76 offers for (substantive or vexatious) challenges to IMC determinations and decisions pursuant thereto. Under s.76 any person adversely affected has standing to challenge in court any action by a public authority on the basis that it is politically discriminatory. It is entirely foreseeable that a great array of suits founded on s.76 would ensue from any IMC determination that adversely affected a particular party. 23. There is also a need to reflect on whether, to the extent that IMC may be said to have a quasi-judicial function, it has anything approaching the level of independence required (of a court or tribunal) by Article 6 ECHR. This is particularly at issue given that Lord Alderdice, who was deeply involved in negotiating the GFA, will be one of the individuals sitting in judgment of the conduct of parties that signed or declined to sign it. With no reflection whatsoever on his personal integrity, there may be circumstances in which in may be inappropriate for that member of the IMC, or any future member with a party political background or otherwise potentially compromised independence, to join in making certain decisions. The IMC may also need to

6 6 / strengthen the procedural fairness of its workings by, for example, ensuring that individuals or parties who stand to be excluded or otherwise penalised are given the fullest possible opportunity to refute the case against them. 24. One of the most important Article 6 considerations, and one that has already been discussed in the media in relation to the Bobby Tohill incident, concerns the danger of any pronouncements it makes on allegations of paramilitary activity prejudicing separate criminal proceedings in the courts. The timing and wording of any IMC report has very clear potential for influencing or indeed preventing prosecutions where the presence or absence of paramilitary involvement may be a central issue. 25. Regardless of whether or not the IMC may be a court or tribunal for the purposes of Article 6, it nevertheless seems to be in the business of determining civil rights or obligations and there must therefore be some mechanism for allowing challenges to be made against such determinations in a way which complies with Article 6. It seems likely that decisions of the IMC, being a public body in Northern Ireland, are susceptible to judicial review in the courts of Northern Ireland. If that is so, the IMC would obviously need to try to ensure that its decisions are not illegal, improper or irrational (the standard so-called Wednesbury criteria) and that they do not breach the Human Rights Act The availability of judicial review can be enough to satisfy the requirements of Article 6 of the ECHR but a lot depends on the nature of the decision being impugned: if the decision is akin to one that an executive body usually takes the more likely it is that the courts will consider the availability of judicial review to be enough, but if the decision is more akin to one that a purely administrative body usually takes the more likely it is that the courts will expect a more substantive review of the merits to be available. See, for further guidance, the decision of the House of Lords in Runa Begum v London Borough of Tower Hamlets [2003] 2 WLR 388. For a precedent which would suggest that decisions of the IMC are more likely to be classified as akin to executive powers, see Re Williamson s Application [2000] NI 294, where it was held by the High Court in Northern Irelands that the Secretary of State had not unlawfully decided that the IRA was maintaining a complete and unequivocal ceasefire. However, as the lawyers often say, a lot depends on the facts of particular cases! 26. It may also be that the provisions for cutting the salary of individuals based not on their own acts but on the behaviour of political factions with which they are associated could raise questions of compatibility with the Convention property rights (Art. 1 Protocol 1), taken together with the prohibition on discrimination in enjoyment of Convention rights on grounds such as political opinion (Art. 14). As noted above (in relation to party funding) there is potentially a public interest defence. 27. It may also be suggested that there is political discrimination in the way in which the remit of the IMC is drawn, e.g. in that it has no obligation (or capacity) to require commitments from or monitor or report on certain potentially destabilising activity by policing, security and intelligence agencies of either state or both. For example, it is not difficult to believe that bugging or

7 7 / other surveillance of elected representatives could, if it came to light, be at least as contrary to the interests of pacification and normalisation as, for example, a punishment beating. 28. While ECHR Articles 10 and 11 (relating to freedom of expression and association) are also potentially engaged by the scope of IMC activities, the potential interference is likely to fall within the scope of the exceptions clauses in those two articles. Conclusion 29. The Northern Ireland Human Rights Commission offers these preliminary observations in a sincere effort to assist the International Monitoring Commission and the sponsor Governments to deal with the very difficult task of ensuring full compliance with human rights obligations at the same time as managing a transition from decades of conflict and division towards a peaceful, stable and inclusive society in which democratically elected representatives can work together, notwithstanding their profound differences on fundamental constitutional issues. 30. We are conscious of the fact that it is always easier to identify problems than to devise solutions, and that in the present document we have raised a number of problems and questions without, in some instances, being able to offer much clarity as to where the human rights considerations ought to lead us. These are exceptionally sensitive and highly politicised areas and our first duty is to ensure that the human rights questions are asked. The primary duty to provide the answers lies with the Governments. Northern Ireland Human Rights Commission Temple Court, 39 North Street, Belfast BT1 1NA 22 March 2004