Human Rights and Making Change: Looking Backwards and Moving Forwards from the Northern Ireland High Court Decision on Abortion

We are delighted to welcome this guest post from Dr Catherine O’Rourke, Ulster University Transitional Justice Institute.

Catherine O'RourkeDr Catherine O’Rourke is Senior Lecturer in Human Rights and International Law at Ulster University Transitional Justice Institute. She is currently also co-coordinator of the Gender Stream of the DFID-funded Political Settlements Research Programme, where she is investigating how international law norms for gender equality influence domestic power-brokering.

In the aftermath of last week’s High Court judgment declaring Northern Ireland’s prohibition of abortion to be incompatible with UK human rights legislation in specific instances, there has been much valuable consideration of the judgment’s legal and political implications, for this jurisdiction and others.  In this contribution, I reflect on what the litigation and judgment say about human rights advocacy in Northern Ireland.

In summer 2013, in response to the Department of Health, Social Services, and Public Safety consultation on the draft ‘Guidance on the Limited Circumstances of Termination of Pregnancy’, I blogged on the need for local human rights organisations to ‘step-up’ to defend the human rights under threat by the failure of successive governments to bring clarity to abortion law in the jurisdiction, as well as the (then) urgent threat posed by the manifold potential civil and political rights violations raised by the 2013 Draft Guidance. The context for the call to local human rights organisations, including the Northern Ireland Human Rights Commission, to begin to advocate on the access to abortion as a human rights issue reflected several years of silence and inaction in the face of clear human rights concerns presented by the legal status quo. Specifically, the call reflected the failure of any local human rights organisation to support the request for an inquiry to be conducted by the CEDAW Committee under the Convention’s Optional Protocol into access to abortion in Northern Ireland.

Since summer 2013, much has changed. While I was writing my call for the local human rights community to ‘step up’ on abortion and human rights in Northern Ireland, the Committee on the Administration of Justice, Amnesty International and the Northern Ireland Human Rights Commission were all preparing responses to the consultation on the 2013 draft Guidance, emphasizing the manifold human rights compliance concerns raised therein. NI Abortion AmnestyAmnesty International has made reform to abortion law in Northern Ireland one of its priorities in its ‘My Body, My Rights’ campaign, involving inter alia the excellent report ‘Northern Ireland: Barriers to Accessing Abortion Services’. The Committee on the Administration of Justice has started to include access to abortion as a human rights concern in its 2015 shadow reporting to CESCR and to the Human Rights Committee. This marked an important new departure for a human rights organisation that had not previously raised the issue of abortion even in its shadow reporting to the CEDAW Committee.

NIHRCThe transformation of the approach of the Northern Ireland Human Rights Commission to abortion is arguably the most notable of all. In its 2008 Guidance to the Secretary of State on the proposed content for a Bill of Rights for Northern Ireland, the Human Rights Commission included only one reference to abortion:

The issue of women’s rights in respect of reproduction, and especially the issue of termination of pregnancy, has been one of the most controversial in the Commission’s consultations on a Bill of Rights for Northern Ireland. Forceful and deeply felt submissions have been made, in respect of a right to life for unborn children and in respect of a right of choice for women. There is no clear widely accepted international standard in respect of the underlying issues. (emphasis added)

In 2015, the Commission initiated the judicial review proceedings that were to ultimately prove successful in last week’s High Court decision, determining that Northern Ireland’s prohibition of abortion in cases of fatal foetal abnormality and in cases of sexual crime, up to the date when the foetus can exist independently, is incompatible with UK human rights legislation. The proceedings included also a third party written intervention from the Amnesty International Belfast office, in addition to Alliance for Choice, the Family Planning Association, Sarah Ewart and a number of anti-choice organisations.

Why the change and where to from here? When considered within the broader context of human rights advocacy in Northern Ireland, the significance of the litigation and its outcome is even more apparent. Local developments in human rights advocacy in Northern Ireland reflect – and were no doubt reinforced by – important legal developments in the European Court of Human Rights jurisprudence on access to abortion since Tysiac v Poland, and developed most notably through A,B,C v Ireland, RR v Poland and P and S v Poland. For rights issues that are locally contentious, such as abortion, the clear articulation of regional human rights obligations can be helpful in emboldening and providing cover for local human rights organisations to take on such issues. (There are inevitably limitations, however, in a human rights approach that articulates right of access to abortion in limited circumstances as a matter of private and family life, but not as a matter of gender equality.) The importance of the international is also evident from the central role of Amnesty International’s Belfast office to the litigation and surrounding press and public affairs activity. Amnesty International adopted the ‘My Body, My Rights’ campaign at a global level and, since then, has pursued a very active local campaign on abortion and human rights, in coordination with local pro-choice groups and constituencies. Arguably important also has been the diversification of human rights advocacy more broadly in the jurisdiction. From the traditional almost exclusive focus on conflict and post-conflict accountability issues (which I document in chapter 3 of my book, Gender Politics in Transitional Justice), contemporary human rights advocacy in Northern Ireland now takes in a broad swathe of issues from marriage equality to mental health and many others.

Taken together, these international, regional and locally-led developments have created a very changed context for pro-choice advocacy in Northern Ireland. Whereas human rights and pro-choice organisations traditionally maintained separate spheres of activity, with little cooperation or interface, last week’s High Court judgment evidences the potential effectiveness of coordinated strategies across human rights and pro-choice groups. Looking forward, as we consider strategies for translating the High Court judgment into progressive legal change, the particular skills of the human rights community in activating international scrutiny, combined with the critical role of pro-choice groups in continuing the articulate the essential equality arguments in working for social change, offer reasons for optimism.

 

 

Northern Ireland Detention challenge successful

A challenge to the continued detention of six suspects in the killings of two soldiers on 7th March 2009 was today successful. The six men were immediately released but Colin Duffy, a prominent republican and former IRA prisoner was immediately rearrested under Section 41 of the Terrorism Act 2000. That re-detention is now the subject of a legal challenge.

The men had all been in custody since the 14th March and had had their detention extended under the UK anti-terror laws which allow for a 28-day detention period. The challenge was made specifically to a decision on the weekend to continue the detention for seven days whilst the PSNI waited for results of forensic tests.

Northern Ireland’s lord chief justice, Sir Brian Kerr, quashed the decision to extend the detention period. Giving judgment for three judge panel, Sir Brian Kerr ruled that the County Court Judge, while making her deliberations, had not taken into account whether the suspects’ original arrest had been lawful.

Kerr did not himself question the lawfulness of those arrests but said the judge who granted the extension should have examined the issue. He found that the lawfulness of the arrests should be examined, though this did not have to include a detailed analysis of the police’s grounds for the arrest. It was also accepted that it was not necessary to disclose full information “for reasons of public safety”.

As a result of these conclusions the court found that the detention was not lawful. A lawyer for one of the men welcomed the decision saying:

“The decision of the court has backed the position that the defence lawyers have taken from the very start of the arrests. We have always taken the view that not to examine the conduct of arresting officers when considering to detain people under the Terrorism Act has always been a breach of human rights.”

Defence lawyers had also raised a claim that the detention breached the men’s right to liberty under the European Convention on Human Rights. This issue was set aside to allow for a full hearing of the case to be heard in order to quickly address the legality of the detention under domestic law.

The ruling clearly has implication more generally regarding the interpretation and review of detention periods throughout the UK under anti-terrorism legislation requiring the courts to undertake a more thorough review of aspects related to the extended detention of suspects rather including the initial arrest process.

The detention of the men had created a different controversy earlier on the week when the head of the Northern Ireland Human Rights Commission Monica McWilliams criticised the conditions that the suspects were being held in in the serious crime suite of Antrim police station. Professor McWilliams said the holding centre had been designed for detaining suspects for shorter periods than the current 28 days allowed under current legislation.

Two unionist commissioners, Jonathan Bell and Lady Daphne Trimble, have now disassociated themselves from Prof McWilliams’ comments, leading to an embarrassing public split in the body.

Ms McWilliams defended her comments and her role, saying she was not there to “reflect populist sentiment”.

“I remind those concerned that the commission is charged to independently ensure human rights standards are adhered to and maintained, not to reflect populist sentiment. It is important on such sensitive issues to provide considered and informed responses. It is worth noting that the Policing Board itself reported the lowest level of satisfaction with Antrim station following visits to custody suites throughout Northern Ireland.”

UPDATE 27 March

Colin Duffy today appeared in court charged with murdering the two soldiers. He was refused bail and remanded in custody until 21 April when he will appear at Antrim Magistrates Court. Duffy denies all charges. In addition to the two murder charges, Duffy is also charged with five counts of attempted murder and one of possession of a firearm and ammunition.

ECtHR Decides N.I. Collusion Cases

On November 27th the European Court of Human Rights found violations of Article 2 of the ECHR (right to life) on the part of the United Kingdom in the cases of McGrath v United Kingdom, McCartney v United Kingdom and Brecknell v United Kingdom. The leading judgment is that handed down in Brecknell.

Brecknell concerned the attack on Donnelly’s Bar in 1975 in which three people were killed and six seriously injured. There had been some initial investigation but the investigation was reignited in 1993 when John Weir was released from prison.

John Weir was a police officer who was convicted of murder in 1980 and released in 1993. On his release Weir alleged RUC (Royal Ulster Constabulary) collusion with loyalist paramilitaries, and provided information relating to a number of incidents including the attack on Donnelly’s Bar. This information was investigated by both the Irish police and the Royal Ulster Constabulary (RUC) and, in connection with the RUC investigation, two internal reports were prepared (one in 2001 and one in 2003). In 2004 a Serious Crime Review Team investigation into the Weir allegations began (the PSNI now having replaced the RUC) and the Independent Police Ombudsman for Northern Ireland became involved.

The families of the deceased persons claimed that the investigation had been inadequate and engaged in judicial review at the domestic level that was, ultimately, unsuccessful. Before the European Court of Human Rights the applicants claimed that the investigation into Weir’s allegations had been inadequate particularly since the Irish police had found him to be a credible witness but, on the same evidence, the PSNI had found him to be not credible. According to the complaint Article 2 results in a positive obligation to conduct an independent investigation into Weir’s allegations whereas the Government argued that, even if the allegations did trigger an obligation to investigate (which was denied), the investigation conducted was in compliance with Article 2.

In its judgment the ECtHR reiterated its well-established principle that there is an Article 2 obligation to carry out an effective investigation into unlawful or suspicious deaths and that this investigation ought to be prompt, independent and effective. It is not the case, according to the Court, that every new allegation or piece of information would trigger this positive obligation but “where there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures” (para. 71). In this case Weir’s allegations were serious and were prima facie plausible, therefore an obligation to investigate arose.

The initial investigation, which was carried out by the RUC itself, was found by the ECtHR not to be sufficiently independent and therefore failed to comply with Article 2 at the early stages at least. As a result, there was a violation of Article 2. it does appear, however, that the later stages of the investigation operated by a SCRT and involving the Ombudsman would satisfy the requirements of Article 2, thus highlighting (once more) the fundamentality of the change in policing in Northern Ireland from the RUC to the PSNI further to the Patten plan.

The same conclusion was reached on similar facts and in relation to further allegations by John Weir in both McGrath and McCartney.

Lecture by General (ret) John de Chastelain

On Monday December 3rd General (ret) John de Chastelain will present a lecture to the CCJHR entitled ‘Decommissioning and the Northern Ireland Peace Process, 1994 – 2007’. John de Chastelain was a member of the ‘Mitchell Commission’ and is now the head of the Independent International Commission on Decomissioning.

The lecture will take place in room G04 of the Brookfield Health Sciences Building. There will be tea and coffee at 4.45 with the lecture commencing at 5pm. The lecture will be followed by a Question and Answer session.

Any queries can be directed to f.delondras[at]ucc.ie