12. Memorandum from Madden and Finucane,
We understand that the Joint Committee on Human
Rights is conducting a short inquiry into the work of the Northern
Ireland Human Rights Commission for the purpose of considering
the operation and effectiveness of the Commission to date, its
functions, powers and resources.
We wish to submit written evidence to the Joint
Committee and our submissions are focused primarily on the Human
Rights Commission's Casework function.
Madden and Finucane are a firm of solicitors
with a significant human rights case-load. By way of illustration
Madden and Finucane is the firm which represented Hugh Jordan
and Gervaise McKerr in their successful applications to the European
Court of Human Rights, cases in which the Human Rights Commission
submitted an amicus brief.
As such we have some experience of working with
the Human Rights Commission, specifically with respect to the
Commission's casework function. We have since the establishment
of the Human Rights Commission applied on behalf of a number of
our clients for funding from the Commission to enable our clients
to pursue human rights cases through the domestic courts. As such
we have experienced the workings of the Commission's Casework
functions and it is on that topic and in light of that experience
that we wish to make brief submissions.
In essence we wish to make submissions on two
issues which we shall develop more fully below
(i) The conduct of the Commission and in
particular the Chief Commissioner in relation to his conduct with
respect to one case in which we received funding. The case of
E v Chief Constable and Secretary of State (The Holy Cross
(ii) The failure of the Commission to agree
a Protocol with the Legal Aid Department in relation to the funding
of cases and the difficulties which this poses for practitioners
and their clients.
E v Chief Constable and the Secretary of State
We represent an anonymised Applicant, identified
as E who is the parent of a child who attended Holy Cross Primary
School in the Ardoyne area of Belfast in 2001. As members of the
Committee may recollect, in September 2001 Loyalist protestors
sought to prevent Catholic primary school children from travelling
up a section of the Ardoyne Road to the Holy Cross School. The
Loyalist protests were extremely violent, on one occasion a blast
bomb was thrown at children walking to school, these protests
continued over a period of months. During that period children
and their parents were subjected to assaults, threats and vile
sectarian and sexist abuse. Our client is currently in the process
of judicially reviewing decisions of the Chief Constable of the
Royal Ulster Constabulary (now the Police Service Northern Ireland)
and the Secretary of State for Northern Ireland. The judicial
review amounts in essence to a challenge to the failures in the
policing and security operation conducted by the RUC in terms
of how they failed to: adequately protect and vindicate the rights
of the school children subjected daily to inhuman and degrading
treatment as they walked to school; and, failed to take all necessary
steps to secure the effective implementation of the criminal law
and to secure the prevention, suppression and punishment of breaches.
Copies of the pleadings can be provided to the Joint Committee
if it is felt that it would be of assistance.
In order to pursue her application for judicial
review, the Applicant applied to the Human Rights Commission for
funding and this application was acceded to. These proceedings
have generated an extensive volume of evidence in the form of
affidavits. Of particular relevance a number of Human Rights Commissioners
have sworn affidavits which have been lodged by the Applicant.
These affidavits variously describe events witnessed by members
of the Human Rights Commission who visited the School during the
protest. The affidavits also provide details of meetings held
between the Human Rights Commission and the Chief Constable of
the RUC and between the Human Rights Commission and Jane Kennedy
of the Northern Ireland Office. Of particular significance is
the evidence of three commissioners: Frank McGuinness, Paddy Kelly
and Inez McCormack in relation to a meeting held between Ronnie
Flanagan and the Human Rights Commission. In essence the Commissioners
gave evidence that Ronnie Flanagan conceded at the meeting that
when deciding on the policing strategy the principle that the
best interests of the children must be paramount did not inform
his approach. This concession has been disputed by Ronnie Flanagan
and for information purposes we attach copies of all the affidavits
filed by these Commissioners and the former Chief Constable which
relate to this issue. As can be seen the Notes of the Meeting
taken by a member of the Commission's staff supports the evidence
given by Commissioners on this topic.
The Applicant obtained leave in these proceedings
on the 15 November 2001. These proceedings were supported by and
funded by the Human Rights Commission, following a decision of
the Casework Committee which pre-dated the leave hearing. In the
course of the leave hearing the High Court was provided with the
Notes of the Meeting held between the Chief Constable and the
Human Rights Commission which had been prepared by a member of
In December 2001 the Chief Commissioner wrote
a letter to the former Chief Constable, the Respondent in these
proceedings. In essence the letter advises the Chief Constable
(i) The decision to fund the Applicant's
case was not unanimous;
(ii) Some Commissioners opposed the decision
of other Commissioners who swore affidavits in the case.
(iii) Some Commissioners opposed the decision
to release the Notes of the Meeting to the Court.
(iv) Most significantly, the Chief Commissioner
stated: "I myself am strongly of the view that the policing
of the protest at the Holy Cross School has not been in breach
of the Human Rights Act."
Briefly, we should indicate, that it is our
understanding that the Notes of the Meeting were disclosed to
the Court on the advice of counsel in the case, who took the view
that the Commission, although not a party to the proceedings nonetheless
had an obligation to make full and frank disclosure to the Court.
Counsel was moreover advised on the date of the leave hearing
that the decision to release those Notes was the decision of the
Chief Commissioner acting alone, which appears to contradict the
position as stated in the correspondence.
This letter was not disclosed to the Applicant
at the time it was written and the Applicant and her legal representatives
first became aware of the existence of that letter in and about
The letter was disclosed to us by the Commission
following a meeting of Commissioners on 8 April 2002.
In the interim in March 2002 at a stage when
affidavits were still being exchanged in the course of the judicial
review proceedings a letter was sent from the Chief Constable
to the Chief Commissioner. In essence the letter raises the following
concerns with the Chief Commissioner about the Applicant's judicial
(i) The decision of individual Commissioners
to swear affidavits in the case;
(ii) The "continued funding by the
Commission of the litigation"; and
(iii) The vintage of the dispute which had
at that stage come to an end.
The Chief Constable advised the Chief Commissioner
that he had been advised by his lawyers to disclose the Chief
Commissioner's letter to the Court and indicated that he felt
he had a public duty to do so. The Chief Constable went on to
"very strongly urge the Commission to review
its funding decision, having regard to the vintage of the dispute
and the resources issue. I would strongly maintain that it is
inappropriate for the Commission to continue to commit public
funds to this litigation. The Commission is, of course, at liberty
to reconsider, review and revoke decisions of this nature at any
time. Please treat this letter as a solemn and formal request
for review and revocation."
The Chief Commissioner responded to this correspondence
on the 28 March 2002. The letter stated as follows:
"Our Commission meets again on Monday 8
April and we will be considering then our involvement in this
particular litigation. I should be able to let your office know
on the following day what the outcome of our consideration has
been. I would be most grateful if you could delay taking a decision
on the disclosure of my letter of 4 December until then."
This entire exchange of correspondence which
related to: the merits of the Applicant's case; and the continued
funding of the Applicant's case, was not disclosed to the Applicant
at the relevant time. In essence the Chief Commissioner of the
Human Rights Commission which had decided to fund the Applicant's
case because [I]t considered that the application was in respect
of proceedings relating to the protection of human rights
and that there was an apparent non-compliance with a rule or principle
for the protection of human rights engaged in correspondence about
the case with the Respondent to the proceedings without keeping
the Applicant informed. Moreover the Respondent was advised that
the Commission would on 8 April 2002 "be considering our
involvement in this particular litigation." The Applicant
whose case it was, was completely unaware that her case was to
be discussed on the 8 April 2002 or that there was a question-mark
over the Commission's continued involvement in the case.
We were not privy to the events of 8 April 2002.
However, we have engaged in correspondence with the Chief Commissioner
and have copied that exchange of correspondence to all Human Rights
Commissioners. We recently received a letter from Professor Christine
Bell which we believe sets out what occurred on the 8 April 2002.
Professor Bell states as follows:
"Removal of funding from the applicant's
case was discussed at the 8 April 2002 Commission meeting. The
matter was raised by the Chief Commissioner who made a proposal
to withdraw funding on the grounds that the Commission did not
have sufficient funds to pay for it. This was then discussed,
culminating in a consensus decision to ask the case work committee
to draft criteria for reviewing case funding in all cases. My
recollection of events is supported by the following:
(a) The amended minute of the meeting. While
the minute, in accordance with then Commission policy only to
record decisions, does not record the discussion, the fact that
discussion took place is supported by the reference to the proposal,
and Inez McCormack's dissent on the issue, These are publicly
available on the commission web site.
(b) Private correspondence between
myself and the Chief Commissioner dealing in part with my unhappiness
at the Chief Commissioner's original letter to the Chief Constable,
and at the proposal as regards withdrawal funding.
The Commission's minutes also reflect the fact
that the Chief Commissioner made a proposal to withdraw funding
from the Applicant's case:
"It was decided to defer a decision on the
proposal to withdraw funding from this case until the casework
committee has time to produce criteria for the review of cases
in general. Inez McCormack objected to the proposal from the Chair
that financial assistance be withdrawn from the applicants in
this case on the grounds of financial pressures and the controversial
nature of the case as the proposal in her view, puts the Commission
in serious breach of its duties and powers. It is her view that
for the Commission to decide criteria for review of casework assistance
in the context of a particular case is an abuse of its duties
and powers under the Northern Ireland Act. It is the Commission's
duty to decide fair and transparent criteria for the exercise
of its responsibilities and to change funding criteria or review
a funding criteria in light of a request tabled by a respondent
to withdraw financial assistance or because of potential embarrassment
to the Commission or the Chief Commissioner is, in her view, a
completely improper exercise of its powers and duties."
Subsequent to the meeting of the 8 April 2002
the Applicant's legal representatives were provided with copies
of the letters exchanged between the Chief Commissioner and the
Chief Constable. The Applicant sought to have this correspondence
placed before the Court and the documents were exhibited to an
affidavit sworn by the Commission's caseworker.
Having lodged the affidavit with the Court the
Applicant's solicitors released a press release and disclosed
copies of the correspondence to the media. The Chief Commissioner
then wrote to the Applicant's solicitors criticising the decision
to issue a press release and contending that it was a breach of
the terms and conditions upon which funding had been granted.
We responded by correspondence dated the 2 May
2002. In essence we argued that we disputed that we were in breach
of the terms and conditions of funding, in any event we contended
that those terms and conditions were in breach of our client's
Article 10 rights. We also sought information from the Human Rights
Commission in relation to the meeting of the 8 April 2002. This
has been the subject-matter of correspondence which continues
to date. It is our contention that we have never received a satisfactory
response to the questions which we have legitimately raised on
our client's behalf.
In his most recent correspondence to us dated
the 4 November 2002, the Chief Commissioner asserts that
"funding of the above case was not discussed
by the Commission on the 8 April 2002. Instead, quite properly
in my view, the Commission decided to ask the Casework Committee
to develop criteria against which the continued involvement of
the Commission in all of its cases could be reviewed in the future."
As can be seen this is contradicted by:
(i) Professor Bell, former Human Rights
(ii) The dissent to the minutes filed by
Inez McCormack, former Human Rights Commissioner;
(iii) The exchange of correspondence between
Professor Bell and the Chief Commissioner, extracts of which are
quoted in Professor Bell's letter.
We shall in light of the correspondence received
from Professor Bell be corresponding further with the Commission
in an attempt to obtain a substantive response to our correspondence
of the 2 May 2002.
We have grave concerns about the Chief Commissioner's
conduct with respect to the Applicant's case and we are of the
view that these are matters which this Committee should consider.
The following issues are of particular concern
(i) The Chief Commissioner's decision to
write to the Respondent in a case funded by the Commission and
communicate his views that the Applicant's case did not have merit.
It is our view that his correspondence amounted to a significant
breach of trust, it raises issues as to breach of confidentiality
given the Chief Commissioner's access to information which could
be regarded as subject to legal professional privilege and was
entirely unethical and unprofessional. We deal with a large number
of clients whose cases are funded by public authorities: the Legal
Aid Department; the Equality Commission and the former Fair Employment
and Equal Opportunities Commission. It has never been our experience
that those bodies would engage in correspondence with the Respondent
about an Applicant's case and the Commissioner's conduct is unique
in our experience.
(ii) The Chief Commissioner's failure to
disclose that correspondence to the Applicant and her legal representatives,
given his decision to write to the Chief Constable. The correspondence
was only disclosed at a point when it was inevitably going to
go into the public domain as a result of the actions of the Respondent.
The Human Rights Commission as an organisation should be open
and transparent, the conduct of the Chief Commissioner on this
issue was patently not.
(iii) The decision of the Chief Commissioner
to propose at a Commission meeting to withdraw funding from the
Applicant's case, ostensibly on the basis of the costs of the
case (this at a time when no estimates of costs or bill of costs
had been sent in the case]. It is our contention that this decision
was motivated entirely by a desire to prevent the Respondent from
placing the Chief Commissioner's letter into the public domain.
In making that assertion we rely upon the correspondence sent
by the Chief Commissioner to the Chief Constable which indicates
that the Commission "will be considering . . .
involvement in this particular litigation." This in response
to a letter from the Chief Constable which the Chief Commissioner
was asked to treat as "a solemn and formal request for review
and revocation [of funding]." In an effort to avoid his letter
going into the public domain the Chief Commissioner was willing
to take steps which would have operated to deny the Applicant
access to the courts in a case involving allegations of breaches
of articles 2 and 3 of the Convention and prevent the litigation
of a very important human rights case.
(iv) The fact that the Applicant's case
was being discussed at the Commission's meeting and the Applicant
had no notice of that fact and was prevented from making any representations
on the issue. This in contrast to the position of the Respondent
who was advised that the topic was on the agenda and had in effect
made representations on the topic.
(v) The Chief Commissioner's criticism of
and objection to the Applicant's legal representatives' decision
to put the exchange of correspondence into the public domain.
It is our contention that this was a completely inappropriate
attempt to suppress the Applicant's right to publicise the manner
in which the Chief Constable had sought to deny her access to
the courts in order to pursue her claim.
(vi) The refusal of the Human Rights Commission
as a body to respond substantively to the Applicant's correspondence
seeking information about what occurred on the 8 April and the
efforts by the Chief Commissioner in his correspondence of the
4 November to mislead the Applicant as to what had in fact occurred.
As a firm of solicitors with a significant human
rights practice and which will, in the interests of our clients,
of necessity have to apply to the Commission for funding on future
occasions we are concerned with the lack of professionalism; the
lack of transparency and the unethical conduct of the Chief Commissioner
in dealing with the Commission's casework function and we consider
that this is a matter which the Joint Human Rights Committee should
consider in the course of its deliberations.
Since the establishment of the Human Rights
Commission and given that it has powers under the Northern Ireland
Act to fund litigation, applicants wishing to litigate in human
rights cases can now make application for funding of the costs
of litigation to the Human Rights Commission. This has the consequence
that in theory an Applicant eligible for legal aid has a choice
about which public authority she/he should apply for funding from.
In practical terms it is necessary for the two pubic authorities
to establish clear criteria upon which funding applications will
be determined and to have a working protocol which enables Applicants
to determine which body is the appropriate body to which to apply
for funding. We have corresponded with both the Legal Aid Department
and the Human Rights Commission in an effort to obtain a copy
of a Protocol, if one exists. It is our understanding that no
such Protocol exists.
This has caused us major problems in cases with
a human rights dimension. In effect when a client, eligible for
Legal Aid, approaches us in a case with a human rights dimension
and an application is made to the Legal Aid Department we are
directed to apply for funding in the first instance to the Human
rights Commission. In the event that no application is made to
the Human Rights Commission our application for legal aid will
be refused. We are therefore forced to go through a process of
applying to the Human Rights Commission for funding, even though
it is apparent from the criteria operated by the Human Rights
Commission that our client will not get funding because she/he
is eligible for funding from another source (the Legal Aid Department).
There is an additional difficulty in that the
Commission does not have an effective emergency procedure to enable
them to determine applications for funding speedily, comparable
to Emergency Legal Aid. The process of making a funding application
to the Commission (which has no prospect of success) can result
in substantial delay on the part of the Commission in determining
the application. In cases which are urgent, this can have serious
consequences: either there is a delay in the determination of
Legal Aid, resulting in a delay in the lodging of proceedings;
alternatively, we have on occasion felt the need to lodge proceeding
without legal aid at a risk to our clients and ourselves. We have
felt that in urgent cases we have little option in view of our
professional obligation to our clients. This has implications
for our office in that the Legal Aid Department will not pay for
work done prior to the issue of a Legal Aid Certificate.
The result is, that for an Applicant who is
eligible for legal aid, they are placed in a worse position in
a case with human rights dimension, than they were in prior to
the establishment of the Human Rights Commission. The necessity
to make dual applications creates unnecessary and time-consuming
work and administration within solicitor's firms. It must also
be the case that it creates unnecessary work for Commission staff
and Commissioners in dealing with cases which have no prospect
of being funded by the Human Rights Commission. The failure on
the part of the Commission and the Legal Aid Department to negotiate
and agree a Protocol in relation to the funding of cases seems
to us to result in a cumbersome system of applying for funding
and an unnecessary waste of public resources.
We fail entirely to understand how some years
after its establishment the Human Rights Commission has failed
to address this very simple issue. We would welcome an opportunity
to give oral evidence about this aspect of the submissions.
24 November 2002