JN June 2006.Pmd

AprilJune 20062003 Balancing Parades January 2003 The Parades Commission has been much in Orders inviting applicants regardless of any conflict of the news lately, albeit for reasons not of its interest. This was an act of positive discrimination. In own doing. Specifically, appointments made order to redress this and establish balance, it would have been necessary to write to leaders of nationalist community to the body by the Secretary of State last year groups inviting applicants from those affected by have been the subject of much controversy, contentious parades.” and most recently legal proceedings. CAJ intends to pursue the issue of public appointments A member of the Garvaghy Road Residents Coalition in a with the Public Appointments Commissioner. We believe judicial review challenged the decision of the Secretary of that this recent controversy highlights a number of problems. State to appoint two members of the Loyal Orders to the CAJ’s stance has always been that the Commission Parades Commission. The review was argued on a should either include all the parties to the dispute (i.e. number of grounds, and had mixed success in the court of representatives of the Loyal Orders and residents’ groups), first instance. or none. Moreover, the issues raised about “representativeness”, “balance” and considerations of In the course of the judicial review application it emerged “conflict of interest” have a significance beyond the Parades that the Secretary of State had written to community Commission and these principles are clearly something leaders asking them to encourage anyone whom they that the Public Appointments Commissioner could usefully considered would be appropriate for appointment to apply study and advise on. to become Commissioners. Those contacted in this way were the leaders of the main political parties, church Of great concern to CAJ also was the final paragraph of the leaders and the heads of the three loyal institutions, the Lord Chief Justice’s ruling, which held that “the decision Apprentice Boys of Derry, the Grand Orange Lodge of considered in this case was par excellence a political one” Ireland and the Royal Black Institution. Morgan J, at first and there is a clear implication that therefore the issue is instance, held that the officials who were responsible for not appropriately addressed by the courts. CAJ considers the appointments process had an obligation to consider the issues of representativeness, balance and potential whether it was necessary to target those groups within the conflicts of interest to be fundamental issues of nationalist community which opposed the perspective of accountability and human rights, to which international the loyal orders. He concluded that because they did not human rights standards apply. While they may raise do so, the Secretary of State had “failed to take into issues of political controversy, they are not political in the account a material consideration as a result of which he sense that they fall out-with the realm of the courts. Any failed to secure as far as was practicable that membership human rights activist would indeed argue the exact reverse: of the Commission was representative of the community that the courts perform one of their most important functions in Northern Ireland.” when ensuring an independent, impartial and non-partisan check and balance against the abuse of political power. The Secretary of State then appealed this decision to the Court of Appeal, and in a judgment issued earlier this month, his appeal was upheld. In a decision from which Contents one member of the three-member bench dissented, the Lord Chief Justice ruled that the Secretary of State was not Balancing Parades 1 required to achieve a balance between individual members Eminent Jurists Panel on Terrorism, of the Commission (as this would be impractical and Counter-terrorism and Human Rights beyond the level of balance needed to fulfil the requirement visits United Kingdom 2 of representativeness envisaged by Parliament). As a 50, 000 volts for five seconds… 3 result, the failure to address the question of whether Irish Council for Civil Liberties: residents’ groups should be targeted did not render the the first Three Decades 4/5 Secretary of State’s decision unlawful. Enforcing the Human Rights Act abroad 6 However, in his dissenting judgment, Nicholson LJ stated Challenging the Inquiries Act 7 that he was “satisfied that the decision of the Secretary of State was flawed from the start of the selection process Civil Liberties Diary 8 because it was decided to write to leaders of the Loyal Website: http://www.caj.org.uk June 2006 Just News Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights visits United Kingdom As reported in last month’s edition of Just News, the International Commission of Jurists (ICJ) has appointed an independent panel of eight eminent jurists to conduct a global inquiry into the impact of terrorism laws and policies on human rights and to explore real or perceived policy challenges in confronting the threat of terrorism. The independent panel is chaired by Justice Arthur Chaskalson, former Chief Justice of South Africa and first President of its Constitutional Court. To date, it has held hearings in Colombia, Australia, East Africa and the United Kingdom. Subsequent to its hearing in Northern Ireland, which increasingly necessary to take preventative action, based examined the impact of long-standing emergency laws on intelligence information, to thwart terrorist attacks. He and measures, the Panel visited London to consider stated that this necessity requires new responses, such as counter-terrorism measures and policies in the United control orders, and structures such as the Special Immigration Kingdom, particularly those taken since 2001. The UK Appeals Commission (SIAC). Those at the hearing with has enacted numerous counter-terrorism laws in recent experience of proceedings before the SIAC discussed the years, some of which have considerable influence over fundamental lack of fairness caused by such structures, due laws and policies in other countries. Members of the UK to the inability of individuals to answer allegations made on Government have also questioned the application of the the basis of information that they cannot see. Geneva Conventions and the UK Human Rights Act in the context of combating terrorism. A number of other issues were highlighted in submissions, including concerns that, in order to allow deportation of Witnesses who attended the London public hearing individuals suspected of involvement in terrorism, the agreed that the UK faces a real risk of terrorist attacks, Government was weakening the prohibition. This occurred as evidenced by last year’s London bombings. The by deporting persons to countries where they face a real risk Home Secretary, Charles Clarke MP, argued at the of torture and by entering into unenforceable agreements hearing that the Government’s measures were necessary with countries which routinely use torture. A recurring theme and proportionate to current threats in the UK, an assertion was the perception by members of the Muslim community disputed by many of the witnesses. The introduction of that police counter-terrorism measures are directed, in a legal procedures which operate in parallel to the criminal discriminatory manner, toward them, increasing their sense justice system and which allow decision-making on the of insecurity and alienating their community. Some speakers basis of secret intelligence was criticised at the hearing referred to the past experience of policing in Northern Ireland for its potentially corrosive affect on the legal system of and suggested that recent reforms to the Police Service for the UK. The example of imposition of control orders, Northern Ireland (PSNI) were a positive model for policing without a trial or sufficient judicial safeguards, in throughout the UK. Keir Starmer QC referred to the positive circumstances where an individual cannot effectively effect within the PSNI of the introduction of a disciplinary challenge information forming the basis of decisions, Code of Ethics drawing on human rights standards and the was highlighted. Similar measures, modelled on UK appointment of an internal human rights adviser. legislation, have been introduced in Australia and were considered by the Panel at its Australian hearing. A final issue, discussed by attendees in London, was the positive influence of the Human Rights Act in providing In London, submissions to the Panel highlighted the clarity and guidance on human rights issues to the police (a scope of such orders and the severe implications such point which was also made by representatives of the PSNI conditions have for an individual’s rights to liberty, during the Panel’s Northern Ireland visit). The importance of freedom of movement and association. In a public a strong and independent judiciary and legal profession, an discussion with the Home Secretary, Justice Arthur active civil society, and other institutional safeguards, to Chaskalson talked about his experience of the use of provide a framework within which UK anti-terrorism laws and similar orders in apartheid South Africa. He described measures are implemented was emphasised. control orders as very severe impairments of liberty, personality and dignity and emphasised that they have a The next hearing of the Panel will be a sub-regional hearing devastating impact on the lives of the individuals for North Africa and will

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