Written evidence from the Bar Council of Northern Ireland (NIB0007)

Introduction:

The Bar of Northern Ireland is a thriving profession of self-employed barristers in independent practice with a unique specialism and expertise in legal advocacy.

Members of the Bar champion the rule of law, serving the administration of justice and the public interest. In exercising their duties both to their clients and the courts, barristers play a vital role in safeguarding the legal rights afforded to all citizens right across Northern Ireland. The rule of law is the fundamental foundation of democratic society. It is the principle that the law applies to all and that no-one, including the Government, is above the law.

A strong, independent and vibrant legal profession has always been vital to ensuring that the rule of law is upheld in Northern Ireland; the challenges of being a legal professional in a society in conflict have emphasised the very real importance of these foundations in our recent history. The independent Bar still maintains the constitutional principle of the rule of law in courtrooms across this jurisdiction on a daily basis. Barristers regularly appear in court to represent those who are challenging the legality of decision-making by public bodies, by way of judicial review. Their professional independence enables them to speak truth to power when arguing their clients’ cases.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

The Bar has noted the number of respected organisations and individuals who have already highlighted that the Bill may be incompatible with the Rule of Law and breach the European Convention on Human Rights. It seems inarguable that in order for the Bill to proceed, amendments are necessary y to address these concerns. 

We note for example:

• The Committee on the Administration of Justice (CAJ) have concluded that the Bill “breaches the provisions of the Good Friday Agreement in relation to the incorporation of the European Convention on Human Rights (ECHR) and the powers of the devolved institutions. …The NITLRB will directly limit the ability of people in Northern Ireland to challenge alleged breaches of the ECHR in either the Northern Ireland Coronial Courts (after May 2023) or the Northern Ireland civil courts (after 17 May 2022, the date of the Bill’s first reading).”
• The CAJ has also observed that: “In order to safeguard the right to life under Article 2 of the ECHR, there is a positive obligation that requires independent and effective investigations to be conducted into certain deaths including those with potential state culpability. There is a similar obligation under Article 3 relating to torture and serious injury. The proposed Independent Commission for Reconciliation and Information Recovery (ICRIR) will not meet those obligations and so will be in breach of the UK’s international obligations and domestic law under the Human Rights Act.”
• The Bingham Centre for the Rule of Law (BCRL) have expressed a view that Clause 18 of the Bill strikes at the heart of principle of legality, as set out in the Venice Commission, Rule of Law Checklist. They arrive at this conclusion as a result of the proposal contained within the Bill that if a person committed a serious Troubles related crime, and they satisfy the three conditions, they must be granted immunity from prosecution.  The consequences being that if this Bill is enacted in its present form then not everyone is subject to the law.
• Furthermore, BCRL observe that by proposing to shut down inquests, civil cases and criminal enforcement the Bill will deny the ability of a person to have their rights vindicated in a court which would be at odds with the provisions of Magna Carta.

Article 2, ECHR and broader Human Rights compliance

• Article 2 of the ECHR protects the right to life. There are a number of components within this right: the state must not take the life of a person, the state is under a positive duty to safeguard life, and the state is under a duty to investigate deaths, in particular where it is the use of force by the state which has resulted in the death.
• The proposed prohibition on inquests, the prohibition on criminal enforcement and the grant of immunity from prosecution could be argued to be incompatible with the requirements of Article 2.
• We have noted that this question has already been raised by the Council of Europe which, following its examination of the McKerr v. the United Kingdom group of cases, are seeking further information from the UK government in order to enable a full assessment of the Bill’s compliance with the European Convention on Human Rights.
• Sir Declan Morgan, in his evidence to the Northern Ireland Affairs Committee on 22 June 2022 also highlighted this matter, observing that if the Bill is enacted and causes a line to be drawn with the effect of prohibiting and bringing to a halt inquests that have been availed of by others “..The question from a human rights perspective is going to be, “How do you justify preventing those 18 cases being heard? What is the interest that justifies or compels that outcome?” . In raising this question Sir Declan also observed that, before the European Court, the Government will have to recognise the commitments that they have made to the implementation of the McKerr judgments, which are still ongoing before the Council of Europe.
• It is unclear whether the establishment of the ICRIR will, in the exercise of its functions, address these various concerns, in particular the vindication of rights in a court and the right to life under Article 2 of the European Convention on Human Rights. The ICRIR has the power to review all deaths and other serious crimes in relation to the Troubles. This is an important power but, as already identified by the BCRL is at risk of being significantly compromised by virtue of the fact that “ the function of the ICRIR is not to “investigate” only to “review”. A review is qualitatively weaker than an investigation. Unlike the standard model for policing in the case of a serious crime, there is a power to review, not a duty. Unlike a civil case, victims and survivors will not be running cases, but relying upon the ICRIR to make all decisions. Unlike inquests, there will be no public hearings, no well-established procedures for involving multiple parties, no rights for individuals to have legal representation, no formalised role for victims. There is no power to take evidence on oath. There is no facility for cross-examination or independent verification or questioning of those submitting evidence to the ICRIR. There is not the challenge function that court proceedings allow for. The process of reviews will not be transparent and open to the public”.

Conclusion

• In keeping with its steadfast commitment to upholding the Rule of Law and ensuring at the same time meaningful access to justice ,the Bar would share the view that it is crucial that the current draft  legislation address the concerns highlighted above to ensure that the legislation that is  ultimately adopted is in full compliance with the human rights convention and does not weaken or disapply any of the recognised principles and tests, such as those contained within the Venice Commission that characterise the rule of law .

34/06/2022