OFFICIAL REPORT (Hansard)

Ad Hoc Committee on a Bill of Rights OFFICIAL REPORT (Hansard) Briefing from Mr Niall Murphy, KRW Law 25 March 2021 NORTHERN IRELAND ASSEMBLY Ad Hoc Committee on a Bill of Rights Briefing from Mr Niall Murphy, KRW Law 25 March 2021 Members present for all or part of the proceedings: Ms Emma Sheerin (Chairperson) Mr Mike Nesbitt (Deputy Chairperson) Ms Paula Bradshaw Mr Mark Durkan Miss Michelle McIlveen Ms Carál Ní Chuilín Mr Christopher Stalford Witnesses: Mr Niall Murphy KRW Law The Chairperson (Ms Sheerin): I welcome Niall Murphy. Niall, thank you very much for your patience and for joining us this afternoon. I will let you begin your presentation. Mr Niall Murphy (KRW Law): Thank you. I am much obliged for the opportunity to make a submission to your Committee. I thoroughly enjoyed listening to the evidence of the young people in the previous session; it is always important to consider their perspectives. While preparing for this evidence session, I was encouraged and impressed by the breadth and depth of the work and research being undertaken. I have to confess that I was not aware of the assiduous approach adopted by your Committee, so I commend you all for your earnest work on a crucial and unresolved area for the advancement of everyone in this society. I hope to provide a practitioner's perspective. You have heard from people in the NGO sector, the judiciary and the Human Rights Commission, but practitioners are also at the forefront of protecting, preserving and divining the rights-based society in which we live. I am a partner in KRW Law, which is a mixed legal practice, whose portfolio includes criminal defence work and public law, with an emphasis on human rights, specifically in relation to the legacy of our conflict through challenges to the decisions of public authorities and civil litigation, which, in itself, is a relatively recent development in legal practice. We consider our work in that regard — this is replicated by many practitioners — although motivated by private instruction, overwhelmingly in the public interest on behalf of a society that is emerging from entrenched and generational conflict. We are all mature enough to recognise and appreciate that. We also conduct extensive engagements on behalf of our clients with the mechanisms currently constituting the package of measures agreed by the British Government with the Committee of Ministers of the Council of Europe following the McKerr group of judgements of the European Court of Human Rights. Those include the Office of the Police Ombudsman, the legacy investigation branch of the PSNI, and our legacy inquest system, which is supervised by our judiciary. 1 There is a perception of our jurisdiction as a state of exception, which demands that access to justice be secured, whether through legal challenges to public authority decisions or expressed via powers or policies or civil litigation and private law claims. Those should not be in the absence of human rights- compliant mechanisms. Our office is regularly approached and instructed because litigation and the judgements on order of the judiciary serve to fill the void in the absence of human rights-compliant mechanisms to investigate the legacy of the conflict to deliver, through the courts and the judges, truth, justice and accountability, outwith any particular narrative, outwith endorsement from a political constituency, and outwith a hierarchy of victims or perpetrators. I should also say that I am the secretary of a civic organisation called Ireland's Future, which aspires to Irish reunification and aims at facilitating and promoting discussion towards that end in line with principles and processes set out in the Good Friday Agreement. Ireland's Future recognises and supports the need for widespread and inclusive debate involving all sections of civic, political and democratic opinion on the form of any future constitutional arrangements. It is in that context that I will make my remarks. The Good Friday Agreement is where your Committee derives its authority, although it was the result of a long process. Human rights are embedded in the agreement. One example, which is worth quoting, is the declaration of support at the start of the Good Friday Agreement: "The tragedies of the past have left a deep and profoundly regrettable legacy of suffering. We must never forget those who have died or been injured, and their families. But we can best honour them through a fresh start, in which we firmly dedicate ourselves to the achievement of reconciliation, tolerance, and mutual trust, and to the protection and vindication of the human rights of all." For me, it is a professional duty of the highest calling to be instructed by people who, but for the circumstances of the most tragic moment in their lives, might never have required the services of a solicitor and would never have embarked on courageous litigation that may define the law for everybody in our society. You will not be surprised to hear that, very often, when receiving instruction from a bereaved parent, child or sibling, the refined complexities of law relating to reliability or quantum are not issues that dominate the conversation. In the context of deaths that might have occurred over 40 years ago, the next of kin, in the vast majority of instances, will seek to pursue simple yet compelling concepts: a fact-based account of what happened to their loved one on the night that they were murdered and the truth being rectified for the public record. Human rights were at the heart of the Good Friday Agreement; I do not need to tell the Committee that. A cursory search of the Good Friday Agreement shows that the words "right" or "rights" appear 61 times. The then UN High Commissioner for Human Rights, Mary Robinson, observed that the centrality of human rights was one of the key parts of the Good Friday Agreement. [Interruption.] The Chairperson (Ms Sheerin): Sorry, Niall. Someone does not have their computer on mute. I think that it might be Michelle because she has just popped up on my screen. Will everybody put their computer audio on mute because there is a wee bit of disturbance? Thank you. Mr Murphy: No problem. Mary Robinson observed that equality and human rights had moved from the margins to the mainstream of Northern Irish life. The commitment in the Good Friday Agreement to enshrining in Westminster legislation a bill of rights should be seen in that context. It is not an incidental or optional extra. We should remind ourselves of Martin Luther King Junior's observation: "True peace is not merely the absence of tension; it is the presence of justice." Surely our system of government and the administration of justice here must aspire to a higher calling than the mere silence of guns, deafening and welcome though that silence is. The commitment to human rights is part of what brought us peace; the guarantee that everyone can feel that their rights will be respected and adhered to. So, whilst the formulation around a bill of rights in the Good Friday Agreement is complex, there is no doubt that that was the objective. That was confirmed in the St Andrews Agreement of 2006, which contained a commitment to progressing a bill of rights through a bill of rights forum, further demonstrating that rights are at the core of efforts to advance our peace process. 2 A bill of rights is the last part of the Good Friday Agreement jigsaw and ensures that rights that are currently enjoyed cannot be taken away at the whim of government. It is intended to ensure that, in a divided society, whoever governs this narrow ground cannot rule without respecting the rights of everyone who lives here. It also ensures that those who do not identify primarily as part of one of the two main communities, which is a growing constituency, will have their rights respected. I will touch on what a bill of rights can do and some fundamental issues. A bill of rights is a list of human rights that everyone is entitled to enjoy; it upholds rights and facilitates political accountability and good governance. Those are concepts that we all aspire to. A bill of rights exists in many countries as a constitutional safeguard to underpin legislation and policy to ensure that rights are protected. The depth and scope of the process and the debate that has taken place over many years is reflective of the importance of the constitutional nature of such a document. This should provide a timely reminder of the importance of giving permanent effect to the human rights and equalities promised in the Good Friday Agreement. I respectfully submit that that is a function best performed by a bill of rights. I was encouraged listening to the evidence of the statistician in the first session that there has been an overwhelmingly positive response — 82% of respondents support a bill of rights. It is safe to conclude that we will have a bill of rights that will be enacted, judicable and enforceable. That will support good governance by creating a rights-informed structure of accountability and allowing our legislature to be held to account. It can assist in ensuring that legislation, policy and practice do not deny fundamental rights and will strengthen democracy by underpinning it. It has been observed that a bill of rights that lives only in courtrooms is not a constitutional document worth having. The debate has been framed through six simple words: "The particular circumstances of Northern Ireland." It is clear that interpretations of that phrase vary and that there are many conflicting perspectives, all of which require to be balanced and respected.

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