Select Committee on Northern Ireland Affairs Appendices to the Minutes of Evidence


Supplementary Memorandum submitted by the Northern Ireland Human Rights Commission


1.1.  The Context

  People in Northern Ireland, like people all over the world, hold parades, festivals, demonstrations, commemorations, carnivals and protests that reflect their communities, their identity, their politics, their culture, their traditions, their sense of fun, their communal memory, their creativity, their sense of place and their beliefs. Clearly, therefore, there is a substantial overlap between public assembly and public expression. Furthermore, both freedom of assembly and freedom of expression have been recognised as fundamental human rights. However, public events inevitably impinge upon the life of others. In Northern Ireland, and around the world, these public events take place within the context of rights held by those not taking part. This is most evident when the public expression of belief and identity occurs where there are sharp political differences, differences that are played out in historical and contemporary animosity and violence. In such cases the right to freedom of assembly must be balanced against other rights, and the need to maintain public order.

  The politics of difference, territory and legitimacy in Ireland has left a history of violent confrontation over public events. This has been particularly true of the north. Since the middle of the eighteenth century local "fleets", Volunteers, Masons, Defenders, Peep O'Day Boys, the Orange Order, the United Irishmen, the yeomanry and militia, Ribbonmen, O'Connolites, marching bands and drumming parties of all sorts, open-air preachers, the Tenant Right movement, the Blackmen, the Apprentice Boys, the Ancient Order of Hibernians, the Forresters, the Independent Orange Order, the Ulster Volunteer Force, the Gaelic Athletic Association, Republicans, the Unemployed Workers Committee, the Civil Rights Movement, the Ulster Defence Association, and the Ulster Workers Council, to mention just a selection, have held public events that have ended in violence. The state has enacted a variety of repressive legal measures including banning all parades from 1832 to 1845 and 1850 to 1872 and Public Order Acts (or Orders), the more significant of which were in 1951, 1971 and 1987. And magistrates and police have used both discretion and extreme violence in controlling or stopping events. In periods of unrest connected to such events hundreds, perhaps thousands have died, thousands, maybe hundreds of thousands have been made homeless and the cost must run into hundreds of millions of pounds. How many of the organisations mentioned above either carry "symbolic" weapons or pictures of weapons or battles or wear uniforms or play music remembering battles or fallen heroes?

  For democracy to work people must be allowed to express their politics even if others do not agree with those politics. The right to free public political, cultural and religious expression must be at the heart of politics in Northern Ireland. Yet, an event that is central to one person's cultural or religious identity is often seen by another as a threat. How can Northern Ireland develop an environment in which freedom of assembly and expression can take place in a peaceful atmosphere?

  This document does not presume to answer that question outright. Rather, it reflects upon the possible contribution to be made by human rights law. It aims to explain why understanding human rights is important for Northern Ireland, and in particular, examines the interpretation of international human rights standards, and the attendant responsibilities of the state, in relation to:

    —  freedom of assembly and expression;

    —  affected individuals and communities; and

    —  the policing of public events.

  It is appropriate to begin with a brief guide to international human rights standards—how they have developed, what forms they take, and what obligations they give rise to.

1.2  International Human Rights—A brief guide

  Human rights are an entitlement derived from the inherent dignity and worth of all human beings. They are universal, although, of course, many countries have provided for the protection of particular human rights within their own constitution or bill of rights. In 1948, following the atrocities of the Second World War, the United Nations' Universal Declaration of Human Rights became the first widely held standard on human rights. Since then, a number of international and regional "treaties" ("conventions" and "covenants") and "declarations" have been produced. These are sometimes described using the umbrella term, "instruments". For the most part, these have been arrived at under the aegis of the United Nations or the Council of Europe.

  The Council of Europe should not be confused with the institutions of the European Union—it is both older and larger than the latter, and entirely separate. Any references to the "European Court" in this document are, therefore, to the European Court of Human Rights and not the European Court of Justice. Furthermore, the dual machinery of the European Commission on Human Rights and the European Court on Human Rights was replaced by a single Court in November 1998.

  The 1948 UN Declaration was followed in 1966 by two international Covenants:

    —  the UN International Covenant on Civil and Political Rights; and

    —  the UN International Covenant on Economic, Social and Cultural Rights.

  The rights enshrined in the International Covenant on Civil and Political Rights (ICCPR) are sometimes known as first generation rights whilst those in the International Covenant on Economic, Social and Cultural Rights (ICESCR) are there to promote social justice and are described as second generation rights. There are also third generation rights called "collective rights" which are conferred upon individuals as members of communities or ethnic groups. Examples include:

    —  the UN Declaration on the Rights of Persons belonging to National or Ethnic Religious and Linguistic Minorities (1992); and

    —  the European Framework Convention for the Protection of National Minorities (1995).

  In addition, a range of more specific instruments have been developed including:

    —  the UN Convention on the Elimination of All forms of Racial Discrimination (1966);

    —  the UN Convention on the Elimination of Discrimination Against Women (1979);

    —  the European Convention on the Compensation of Victims of Violent Crime (1983);

    —  the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987); and

    —  the UN Convention on the Rights of the Child (1989).

  There are also international standards which deal exclusively with law enforcement, and these are particularly relevant to our purposes here:

    —  the United Nations Code of Conduct for Law Enforcement Officers (1979);

    —  the Council of Europe Declaration on the Police (1979); and

    —  the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990).

  The three most important regional instruments are:

    —  the European Convention on Human Rights (1950);

    —  the American Convention on Human Rights (1969); and

    —  the African Charter on Human and Peoples' Rights and Duties (1981).

  All of these instruments have one thing in common: they confer rights upon individuals (or minority groups in the case of third generation rights). The next question to address is how those rights are enforced.

1.2.1  The role of the state

  It is the government of the country in which a violation of rights is alleged to have taken place which will be held accountable by the appropriate international tribunal, commission, court or committee. This can be clearly seen from the case names listed in the appendix. The appropriate court will be the one which oversees the operation of the instrument in question—for example, the UN Human Rights Committee will hear cases involving an alleged breach of the International Covenant on Civil and Political Rights, whereas the European Court on Human Rights will deal with cases concerning alleged violations of the European Convention.

  What then are the duties of the state in regard to the array of international instruments named above? Three points should be made. First of all, normally the international court will grant a certain amount of leeway to domestic authorities when determining whether or not a government has failed to live up to its obligations. This leeway is known as the "margin of appreciation" (see further 2.3.3). Secondly, it is important to distinguish between declarations, which are not intended to be legally binding (exhortations rather than obligations), and treaties (ie conventions and covenants) which do impose legal obligations on the parties to them. This means, for example, that although the UN Universal Declaration of Human Rights paved the way for many subsequent conventions and covenants, it of itself contains no legal undertakings, and merely urges governments to promote its standards. States voted for it by resolution, but no country has signed or ratified it. And this leads to the third point—that the level of a state's obligations will depend on the manner in which it agrees to any treaty. Essentially, there are three possibilities—(a)  signature, (b)  ratification or accession and (c)  incorporation.

(a)  Signature

  Signing an instrument, while not a legally binding step, creates an obligation of good faith that a state signatory will refrain from any action calculated to defeat or undermine the goals of the instrument. Signature is often followed by ratification at a later date, but this is not necessarily so.

(b)  Ratification/Accession

  Ratification by a government means that any individual, non-governmental organisation or group of individuals within its jurisdiction can petition the appropriate international court alleging a violation of a right (or rights) contained in that instrument. Accession is virtually the same as ratification, except that it is not preceded by any act of signature. The ICCPR, for example, was ratified by the UK in 1976, and both the British and Irish governments have recently ratified the European Framework Convention for the Protection of National Minorities.

  Once an instrument has been ratified by a member state, that state is bound by its terms even though it is not incorporated into domestic law. Domestic statutes ought to comply with the instrument, and local courts may look to that instrument for guidance when construing any ambiguity in domestic law.[122]

  That said, when ratifying a treaty, a contracting state may make a reservation in respect of any of its provisions if municipal laws in force at that time do not conform. The state, therefore, only accepts the obligation imposed by the treaty to a limited degree. In addition, in times of public emergency, a state may make a derogation from the terms of a treaty. This means that the State may take measures which would otherwise be in breach of the treaty so long as such measures are not inconsistent with the state's other obligations under international law. Any such derogation is susceptible to legal challenge, and some rights are regarded as non-derogable (see 1.2.2 below).

(c)  Incorporation

  The crucial distinction between ratification and incorporation is that ratification does not give rise to directly enforceable rights in local courts, whereas incorporation does. In general terms, unincorporated treaties have no legislative effect and do not form part of the law of the country. Incorporation, on the other hand, renders an instrument part of domestic law. The ECHR has now been incorporated into UK law by the Human Rights Act 1998 and this is discussed further in 1.3 below.

1.2.2  A Hierarchy of Rights

  Some human rights are seen as "absolute" or "non-derogable". These include freedom from inhuman and degrading treatment and punishment, and a state cannot opt out of an absolute right. Other rights are "derogable", and these can be sub-divided into two further categories—"limited" rights and "qualified" rights. Limited rights are those in relation to which the government can enter a derogation but which are not to be balanced with any general public interest. An example is the right to a fair trial. Many other rights, however, fall into the "qualified" category. These rights must be balanced with the general public interest given that their exercise and enjoyment will often bring them into conflict with other rights. Obvious examples, with particular relevance to the subject of this study, are the rights to freedom of expression, freedom of assembly, and respect for private and family life. The qualifying paragraphs in the Convention (for example Article 11(2)) therefore allow restrictions to be placed on these rights in pursuit of certain legitimate aims which include the interests of national security or public safety, the protection of health or morals, and the protection of the rights and freedoms of others. Restrictions must also be non-discriminatory, prescribed by law, and necessary in a democratic society (see further 2.3).


  In 1998, the British Parliament enacted the Human Rights Act which came into force on 2 October 2000. This legislation incorporates the European Convention on Human Rights (ECHR) into UK law, and enables, for the first time, victims of human rights abuses to obtain remedies in local (domestic) courts rather than having to go to the European Court in Strasbourg. Domestic courts will be required to interpret legislation so as to uphold the Convention rights. The only qualification to this is where the High Court or Court of Appeal decides that the legislation itself (or a part of it) is incompatible with the Convention. In such instances, the court can make a "declaration of incompatibility" but this does not affect the validity or continued operation and enforcement of the legislation.

  The Act also imposes a duty on all public authorities (such as the Parades Commission) to act in a way which is compatible with the Convention. Thus, not only can individuals now rely on the ECHR as a defence in criminal or civil cases, but they may also rely on the Convention when applying for judicial review. The Human Rights Act effectively creates a new free standing ground for review in addition to the three traditional grounds of illegality, irrationality and procedural irregularity. This new ground is whether or not a public body's decision is compatible with the Convention. Already, an application for judicial review of a decision of the Parades Commission has argued (albeit unsuccessfully) that the Commission overstepped the legitimate aims listed in Article 11(2) of the Convention (see (i)).[123]

  This fourth ground will invariably extend the scope of the other three. In so far as illegality is concerned, a court might now be able to declare a decision of a public body to be illegal if it fails to comply with the Convention. In relation to irrationality, an applicant may no longer need to satisfy the court that a disputed decision was so irrational that no rational authority could have taken it (a legal standard known as Wednesbury unreasonableness). Instead, the question may become whether or not a restriction placed upon a Convention right was proportionate (see further 2.3.6) And in so far as procedural irregularity is concerned, the accepted rules of natural justice are now likely to be supplemented by the requirement that the procedures adopted by a public body must not compromise the individual's Convention rights (see, for example, 2.4 concerning the right to a fair hearing). Furthermore, for applicants relying on this fourth ground, the long established rule that individuals applying for judicial review must demonstrate a sufficient interest in relation to the unlawful act, will only be satisfied if he or she is, or would be, a victim of the act as defined by s7(7) of the Act.


The Belfast (Good Friday) Agreement:

  The participants endorse the commitment made by the British and Irish Government that . . . they will:

  . . . affirm that whatever choice is freely exercised by a majority of the people of Northern Ireland, the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions and shall be founded on the principles of full respect for, and equality of, civil, political, social, and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities. (p 2)

  The Parties affirm their commitment to the mutual respect, the civil rights and the religious liberty of everyone in the community. Against the background of the recent history of communal conflict, the parties affirm in particular:

    —  the right of free political thought;

    —  the right to freedom of expression or religion;

    —  the right to pursue democratically national and political aspirations:

    —  the right to seek constitutional change by peaceful and legitimate means;

    —  the right to freely choose one's place of residence;

    —  the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity;

    —  the right to freedom from sectarian harassment; and

    —  the right of women to full and equal political participation. (p 16)

  Increased activity in the field of human rights, however, has not been confined to the international, or even national, arena. A key part of the future development of Northern Ireland will be the greater recourse to human rights legislation. The Belfast (Good Friday) Agreement was explicit about this. Whether one was a supporter of the Belfast (Good Friday) Agreement or not, few would disagree with the sentiments expressed on human rights. Both British and Irish governments are committed to the maintenance of human rights within their jurisdiction. Indeed, the Northern Ireland Human Rights Commission itself was a product of the Belfast (Good Friday) Agreement. Under section 69 of the Northern Ireland Act 1998, the Commission is required to:

    —  keep under review the adequacy and effectiveness in Northern Ireland of laws and practice relating to the protection of human rights;

    —  advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to protect human rights;

    —  advise the Assembly whether a Bill is compatible with human rights;

    —  promote understanding and awareness of the importance of human rights in Northern Ireland.

  So how will this international, national and regional enthusiasm for human rights influence disputes over parades and marches? Certainly, human rights standards have the potential to set a benchmark against which the regulation of parades and related protests can be measured (including the premium properly attached to reaching local agreement). By establishing such principles, these standards may act as a catalyst in transforming the climate in which the public expression of one's culture, politics and/or religion takes place.

  The remainder of this document looks at how some of these international instruments have been interpreted, and elicits the significance of those interpretations for disputes around parades. It concentrates primarily upon the European Convention on Human Rights and also, to a lesser degree, on the International Covenant on Civil and Political Rights. The reason for this bias is twofold. Firstly, it is only the European Convention which has been incorporated into UK law, and thus it is the instrument which will receive the greatest attention in local courts. While other instruments do include provisions relating to the right to freedom of assembly, and thus augment the Convention and Covenant jurisprudence, their utility is of a comparative nature rather than directly bearing on the legal protection of rights in Northern Ireland. Secondly, the volume of case law generated by the Convention is much greater than that generated by any other international human rights treaty. It therefore stands to offer the most comprehensive guidance.

  This work does not purport to be an exhaustive inventory of international human rights provisions as they relate to issues around parades. Notwithstanding, other treaties will be cited where they illuminate discussion of the key issues, for a secondary objective of this work is to highlight the different ways in which rights have been both framed and interpreted. In the context of the Human Rights Commission's consultation on a Bill of Rights for Northern Ireland, this work should therefore further encourage reflection on what rights might be included in such a Bill.

122   See, for example, Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 283G Per Goff LJ, and Derbyshire County Council v Times Newspapers Ltd [1992] QB 770, at 830B-C per Butler-Sloss LJ. Back

123   In the matter of an Application by David Alexander Tweed for Leave to Apply for Judicial Review. Heard by Kerr J in the High Court on 25 October 2000, and by the Court of Appeal on 26 October 2000. Written judgement delivered by Carswell LCJ. Back

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