One way to analyse the 7^th draft from the recent Haass talks would be to look the proposals one by one. This post, however, is a look at some principles that should be viewed as essential to any future proposals, or talks, by anyone with a care for fundamental human rights, and which must be satisfactorily addressed as the basis of any future conversation on any aspect of ‘Parades, Select Commemorations, and Related Protests; Flags and Emblems; and contending with the Past’.

There are three principal points for consideration:

1. the Danger to Freedom of thought, conscience and religion;
2. the Danger to the Administration of Justice;
3. the Danger to the right to Freedom of peaceful assembly;

Danger to Freedom of Thought.

Paragraph 1, Article 9 of the European Convention on Human Rights gives absolute protection to the right to freedom of thought, conscience and religion. The manifestation of one’s religion or belief is is subject to the usual qualifying factors set out in para 2 of Article 9: the government may justify limitations on the ‘manifestation’ where such limitations are in accordance with law and necessary in a democratic society for public safety and the other specific factors set out in the paragraph including the rights and freedoms of others.

The Haass document is replete with ‘thought control’.

Page 5 (4^th Paragraph) it is stated that because of :

“Northern Ireland’s unique history and characteristics  . . . requires that the tradition of parading, assembling be conducted in a way that contributes to the goal of building a shared and open society.”

Should those who exercise their right to freedom of peaceful assembly and parading [ with the emphasis on ‘peaceful’ and all that such word properly entails ] be required through any such ‘thought control’ to subscribe to any such goals, however reasonable and desirable all and sundry might esteem such ‘shared and open society’. If you prescribe for an open society do you not by that act of prescription preclude the formation of such an open society?

If there is to be statutory regulation of culture it should be focused on conduct – with necessary prescriptions on conduct where passions may be enflamed – and no more.

On page 20 (final paragraph):

“A civic vision is needed. If we are to continue to open ourselves to the emotional, social, and political vulnerabilities of engaging with the past, we will need a sense of common purpose – an agreed rationale. It is clear that the vast majority of citizens and communities wish to live free of the division and enmity that has too often defined this society. At the same time, it is also clear that people have different senses of the past’s meaning and importance. This is the heart of the challenge of reconciliation – the transition from a divided society to one that is whole, from a wounded society to one that is healed.”

This seems all too uncomfortably North Korean – rather than North American – language; at least for language appearing in what was supposed to be an Agreement, rather than a Chairman’s personal reflections on a Report.

Danger to the Administration of Justice. 

Northern Ireland has not yet had that much experience of ‘hands on’ devolution of policing and justice, particularly in regard to legislative policy making. To frolic in these fields in the late hours of deadline dramas does the parties at the talks no credit.

Throughout Draft No. 7 there is considerable emphasis on victims: their needs and rights. We have moved from a position during the years of the troubles when victims’ needs and rights were all but ignored, apart from some monetary compensation – often derisory. That emphasis, and what is proposed (see pages 21-23) for trauma services and pension provision for victims is late, but very welcome.

The same praise cannot be sanctioned for the sections on ‘Justice’ and new institutions (see pages 25-35) which amount to the core of the document. The focus here is on meeting the needs of victims and families. Indeed, in those pages, there are 31 references to ‘families’.

One of the reasons for setting up the Historical Enquiries Team (HET) was to provide information to victims’ families (in the cases of deaths, only). That was a reasonable, legitimate aim.

In the Haass document, the suggestion is that (Page 25 final paragraph) HET should be merged into an Historical Investigations Unit (HIU):

• ‘a new body with additional powers above those currently held by HET’;
• [to] ‘provide a more effective service for those families’

This represents far more than a rearrangement of the furniture.

The HIU is not, as you might think from its title, an organisation to be staffed by Professors of History and their hard working research assistants. The Agreement makes it clear that the HIU is in effect an alternative police investigatory and enforcement body.

The danger with the establishment of the HIU arises from investigation and enforcement in this context being be focused on meeting the specific needs of a group in society, ‘families’, rather than on the overall public interest. In this respect the suggestions contained in Haass run contrary to this fundamental principle of the administration of justice.

That alone would be deeply worrying, but compounded by a seeming conflation between the investigative role of an ombudsman and policeman. An ombudsman is concerned with conduct of those in a position  of responsibility whose actions, while not unlawful, may have caused harm – ‘maladministration’ in short. A police officer is concerned with breach of the law, crime, and for that purpose is invested with powers of arrest, interview under caution etc subject to strict oversight for human rights, compliance and indeed the oversight of the Police Ombudsman in particular.

It is dangerous to fuse two different roles and sets of powers to be available to one officer (or body) – our common law system is wary of the potential for the abuse of power should a public official have access to a long and varied menu of powers to exercise at his or her discretion.

Were there to be a policy goal to ‘provide a more effective service for families’, the danger is a zealous investigating officer will, in pursuit of finding ‘satisfaction for families’, in effect harass a retired police officer, or other member of the security forces, or even any retired civil servant.

There can be no quibble with the proper exercise of police powers where there is any due evidence of breach of the law. These powers should not, however, be exercised merely because (Page 25, final paragraph):

 “…the families of many victims believe they have not received the justice they desired or deserved.”

To what extent will families believe they are entitled to have pursuit made of ordinary retired people in any such inquiry?

Elsewhere, there should also be concern around the proposed ‘Independent Commission for Information Retrieval (Pages 30-32). The document suggests this new Commission will be entitled to exercise its powers when ‘victims and immediate families of victims’ register a request for information about any violent incident relating to the conflict. That is a clear cue for an avalanche of such ‘information requests’ from victims/families claiming ‘collusion’ and a litany of other grievances against police officers, or others in the security services or in public service, such as civil servants.

To facilitate this new Commission (Page 30) it will be necessary for all ‘organisations and governments’ to have ‘designated intermediaries’ who will assist this Commission when an information request is received to:

“ … seek out individuals within their networks who may have information relevant to the request”

Though (Page 31, top paragraph) it is provided that:

“We underscore that interaction with this commission would be fully voluntary and respectful of the wishes of victims and families.”

Disturbingly, there is no provision for the Commission to be respectful of the wishes of police officers, or others in the security services or in public service, such as civil servants who may be identified by their former organisations as having information relevant to the request.

After the Commission (Page 30, bottom paragraph):

“…judges it has received all information it reasonably can, the staff of ICIR will prepare a private report for the victim or the victim’s family conveying the information that it has gleaned regarding that specific case.”

Consequently, if a retired police officer or other member of the security services or civil servant fails to agree to co-operate, no doubt the ICIR will report on that in their private report to the victim or the victim’s family. So there is full opportunity for ‘naming and shaming’ and ‘guilt by silence’.

There is much of similar concern to be said of the proposals for the ‘Assessment of Patterns’ section (Pages 31-35). Fundamentally, when the pattern to be assessed relates to state conduct there will be all the lever arch files of archives to consult. Of course too, room for extensive campaigning in the media and by way of judicial review, for instance, if the state resists full disclosure to the satisfaction of the investigators.

On the other hand, the paramilitary organisations will not have such archives to disclose, so the record will remain skewed.

There are other subsidiary, but important, points.

Firstly, the statement (Page 27, first paragraph) that:

“Finally, as a new institution with additional powers and capable of commanding the confidence of the entire community, it can command a measure of comfort to the families involved and contribute to the ongoing restoration of public faith in Northern Ireland’s justice system – an essential step for securing a shared future.”

Does this paragraph suggest, certainly imply, that there was a past where the justice system was unfair in an institutional sense to any section of the community on grounds of religion or political opinion. That is deliberate and intended slur on all those who did their best during the years of the troubles in the justice system – some to the extent of their lives. Of course, there may be some – and some within the legal profession – who are vehement with allegations of unfairness. An honest document would acknowledge that there are two irreconcilable points of view on this – Haass Draft 7 does not. There is no happy shared future on such assessment as appears on Page 27.

It would be wholly wrong to suggest that there is no need of any reform of the justice system in Northern Ireland – no jurisdiction would make a claim of perfection (and we would not wish to be part of one that does). The issue here is; was the justice system institutionally unfair to any section of the community on the grounds of religion or political opinion?

Secondly, (page 24, third paragraph): 

‘The vast majority assiduously eschewed violence, yet some may have contributed to the environment in which it flourished’

This seems is nothing short of an impermissible degree of excuse to terrorism and those who supported or connived at terrorism.

Thirdly, the reference (Page 25, second paragraph) in the Justice section to ‘reform’ of the justice system – in this context – is also an unwarranted slur on those who administered the justice system during the worst years of terrorism: police, prosecutors, judges and other public servants. That should not go unchallenged – there is a darker insinuation here than the need of an ongoing reform process.

Fourthly, (Page 23, third paragraph) in the ‘Acknowledging Past Acts’ Section reference is made to ‘more than 3000 conflict related deaths’.

Apart from the euphemism of ‘conflict related’, and the evasion of truth involved in that phrase, there is a lack of balance here. Certainly, some deaths were attributable to ‘state actors’. The overwhelming majority were caused by paramilitary organisations.

But besides murder, terrorist paramilitary criminal gangs were responsible for, and gloried in, campaigns of bombing, intimidation, political control and racketeering across Northern Ireland throughout the entire period under review (and some still do). There should be due emphasis on the full horror of terrorism during that period; the rather anaemic ‘… many suffered the loss of their homes or businesses’ does less than justice to the full suffering inflicted by terrorism on the innocent of all communities across Northern Ireland in the course of their daily lives.

Danger to Freedom of Peaceful Assembly.

There are school-boy howlers on how devolution of powers in this area would apply and how notices etc might be served. That would be better considered on the basis of sheer impracticality – though this third part must also be considered in respect of the earlier first danger to Freedom of Thought.

In the part ‘Select commemorations’ as defined (Page 7, second paragraph) Notification Section:

“Select commemorations are events: 

• That are intended to commemorate or mark in any way any event of public significance that has occurred in Northern Ireland, or that occurred in another jurisdiction but holds a clear connection with events in Northern Ireland;
• That hold the potential to disrupt normal public services, including vehicle traffic, public safety services, or public access to any location; and
• In which the participants are moving or stationary.”

There are so many events which might fall within the definition of ‘Select Commemoration’.

A free public lecture by Alex Ferguson on the ‘Life and Contribution of Manchester United to Football’ in the Whitla Hall Queens University Belfast, for example, with obvious connections to Northern Ireland through players such as George Best, might cause car parking difficulties on surrounding roads. In which case the diligent organiser, as the ‘event organiser’ (for the purpose of the new legislation) would have to serve notification and would be expected to enter into dialogue with those members of the community affected by the event – presumably those not supporting Manchester United and who are quite likely to be ‘offended’.

In such circumstance all those participating would be obliged by law to inform themselves as to the terms of the notification, any agreement reached with any “opposition” and any determination by the Authority, and in the event that there was not due notification all attending the event would be liable to prosecution.

This is a contrived example, but it goes to demonstrate how something so seemingly innocuous might still fall under the shadow of such wide-ranging regulator power. More widely, the example flags serious potential dangers to academic freedom and the freedom of public debate generally.

In summary…

If there are to be future discussions on the issues that were to be the focus of the Haass talks, then much greater consideration must be paid to fundamental freedoms. Due diligence must be undertaken at all times not to breach the rights and liberties of the individual. Freedoms hard-earned, are easily lost. All those who believe that so many died to protect freedoms should not be party to any diminishment of that legacy.

Dr Haass asks whether it is better to have the Haass Draft 7 as the basis of Agreement or no agreement at all. On the basis of the dangers to fundamental freedoms and the Rule of Law, the answer has to be ‘better no agreement’.

 

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