Human Rights in NI – sleepwalking towards disaster
The NI Human Rights Commission (NIHRC) published its Annual Statement this week.
Its key message is that Northern Ireland is falling further behind the rest of the UK on key rights provisions.
This is a dispiriting sentiment, but what does it actually mean? Here Scope takes a look at the statement and focuses on key areas of concern (or success).
As usual, the statement offers a traffic light grading system to more easily measure how well we are doing, or not doing:
- Red identifies a subject that requires immediate action by the UK Government, NI Executive or relevant public authorities and the issue may be an ongoing violation or abuse of human rights within NI.
- Amber means initial steps towards a solution may have been taken but are not completed, and further work from Westminster, Stormont or relevant public bodies is required.
- Green means a firm commitment to address concerns will have been demonstrated and undertaken.
Last year, there were 74 different areas that received a grade – 64 amber and 10 were red, with none achieving green – and this year the results are similar.
A total of 86 areas were measured, with 73 designated amber, 12 in red and, in some better news, one managing to achieve green.
The statement is an enormous piece of work but, nevertheless, well worth a look for anyone interested in any and all areas of human rights.
This article will focus on the red and green designations only. Let’s start with the good news:
Under the right to a fair trial and administration of justice, there was some tangible success with the Department of Justice’s new Witness Charter. This was consulted upon in 2016 and a draft charter was published “setting out the entitlements, services and support that a witness to a crime should expect from the criminal justice system”.
Despite the collapse of Stormont meaning the charter has been unable to pass into law in NI, both criminal justice agencies and support providers have applied it on an administrative basis in 2018.
Unfortunately, under the same right there are some major issues, according to the NIHRC. The age of criminal responsibility remains at 10 in NI, as in England and Wales, whereas it is set at 12 in Scotland, which meets what the UN says is the minimum standard for human rights compliance (which itself mirrors a Department of Justice NI finding following a review at the start of the decade).
NIHRC is also concerned about the high threshold for compensation for a miscarriage of justice. It is not enough for someone to overturn a conviction, to be eligible for compensation they must also prove their own innocence.
However, while this applies to all offences in England and Wales, in NI it only refers to terror-related offences. Nevertheless, NIHRC would like this test for a miscarriage of justice to be reviewed.
Gallingly, apparently the poorest performing human right in NI over the past year has been the right to freedom from slavery – where three of its four identified areas were given a red rating.
The UN recommended in 2016 that the UK should raise the minimum age for marriage to 18, in order to help tackle child, early and forced unions. A bill was introduced into Westminster in September this year that could make this change but, as things stand, it awaits a second reading. In 2017, a total of 52 children in Northern Ireland got married – 40 girls and 12 boys and the NIHRC has called on the Department of Finance to remove all legal provisions permitting this here.
Under child sexual exploitation, the NIHRC is calling for the implementation of recommendations from a 2014 independent inquiry – including doing something about current provision in law that, for certain sexual offences against children as young as 13, prosecutors might have to prove that defendant did not reasonably believe the child was 16 or older. The Commission says it is “deeply concerned” about this and is calling for change.
The third area of concern under this right centre on children in care – and, in particular, the high frequency with which these children go missing. The Commission has asked that the key agencies develop a strategy to address the factors that cause this.
Under the right to freedom from torture, inhuman and degrading treatment there is a single area rated red – the physical punishment of children. Here in NI, parents are allowed to physically punish their children under the defence of “reasonable chastisement”, which NIHRC wants to be removed – instead calling on “a strategy to effectively promote positive and non-violent forms of discipline and respect for children’s equal right to human dignity and physical integrity, with a view to eliminating the use of physical punishment in child-rearing.”
Under the right to life, there are two red-lighted areas. Firstly, in terms of conflicted-related deaths, the Commission has called for human-rights-compliant changes to be made to the Stormont House Agreement and for this version to be implemented, adding that:
“The Commission continues to advise that a statute of limitation restricting the prosecution of State actors would amount to an amnesty, if such an amnesty were to be held to excuse acts constituting gross human rights violations and abuses (including the right to life and the prohibition on torture or other cruel, inhuman or degrading treatment or punishment), this would be incompatible with human rights law.”
Secondly, under legacy inquests and inquiries, the Commission raises concerns about available resources for legacy cases and advises that the NI Office is “required to ensure independent, impartial, prompt and effective investigations into deaths during the conflict in NI.”
It said further: “These must be conducted with a view to identifying, prosecuting and punishing the perpetrators of human rights violations and abuses, and providing appropriate remedies for their victims. The Commission continues to monitor the impact of ‘comfort letters’ on any future prosecutions of recipients.”
Under the right to liberty and security of the person, there is a red light regarding the remand of children – the number of children in custody in NI, as well as the rest of the UK, is high and not enough has been done to address this.
When it comes to the right to a private and family life, there is a red light for access to financial support for unmarried couples, in particular access to certain social securities and pensions that only occurs in marriage/civil partnerships and recommends that criteria are widened to remove discriminations.
In particular, it cites a case it has been fighting itself: “In August 2018, the NIHRC issued proceedings on behalf of an individual who was denied access to her late partner’s pension by the Ministry of Defence, on the grounds that they were not married.”
Under the right to an adequate standard of living and to social security, the Commission has shone a red light on Stormont’s ongoing failure to introduce and implement an Anti-Poverty Strategy, and notes the disproportionate effects of post 201-austerity on disadvantaged and marginalised individuals and groups.
The final red light occurs under the right to health and, specifically, the termination of pregnancy. NIHRC itself continues to fight for wider rights for women seeking a termination of pregnancy, and its bid to ensure that “women and girls have access to termination of pregnancy in at least circumstances of a threat to physical or mental health, serious foetal abnormality, rape or incest” and appropriate aftercare, as well as other support services such as advice and guidance.
Commissioner Les Allamby’s message that accompanied the report is, in one way, a reaffirmation of last year’s publication.
Scope’s article on the 2017 statement focused on the absence of a government here in Northern Ireland and, one year, Mr Allamby is quite understandably still talking about that.
In his foreword, he states: “This is the second annual statement published against the backdrop of the absence of devolved government in Northern Ireland. The stark implications of the impassé are laid bare, with more issues marked red denoting potential and ongoing violations of human rights needing immediate remedy, than at any time since the annual statement was first published in 2012.
“The outstanding issues are profound, including the need to reform the law on access to termination of pregnancy, deal effectively with the past including outstanding investigations and legacy inquests, tackle child sexual exploitation, address the issues of children going missing from care, and the continued absence of a strategy to reduce poverty, despite this being declared unlawful in the High Court three years ago.
“Several months have passed since, it was suggested to me that in one Northern Ireland Government department there were over five thousand decisions waiting on sign-off from a new Minister. This in-tray is now presumably even more overflowing. The public mood at the stalemate has turned from anger to indifference; neither of which is healthy given the important job politicians are elected to do.
“The other subject dominating public life is the referendum decision to leave the European Union and its implications for Northern Ireland. Here also, the absence of a devolved government in Northern Ireland is felt keenly. The implications for the protection of human rights and equality are substantial. The United Kingdom Government is committed to leaving the Charter of Fundamental Rights of the European Union, which incorporates and supplements the protections contained in the European Convention on Human Rights when dealing with European Union Law.
“The Charter with its ‘Convention plus’ approach is the nearest thing we have to what was envisaged in the Belfast (Good Friday) Agreement for a Bill of Rights for Northern Ireland. There is a strong argument to either, retain the Charter within Northern Ireland, or to incorporate its essence as a Bill of Rights. Moreover, the notion of retaining an equivalency though not the same human rights protections across the island of Ireland in the Agreement is becoming increasingly hollow.”
Set alongside the detail of our sluggish progress on rights issues – and in the significant number of areas where there are ongoing problems and no significant progress at all – these words carry extra weight.
The one green light from this year’s statement happened very much in spite of the absence of a functioning government at Stormont.
Our local representatives have attracted plenty of derision over the years, especially in recent times. Nevertheless, a country without a government is sleepwalking towards disaster. The NI status quo is not good enough.
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