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. Some of those engaging in the debate want to see the widest possible understanding of the phrase, others understand it to be restrictive in meaning, and some take a stance somewhere in between.
In its response to the December 2008 advice of the Human Rights Commission, the NIO, in 2009, argued that most of the rights proposed by the commission were already protected by existing legislation, policy or practice. I rhetorically ask, "Well, what's the problem? What do we have to fear?" I also ask the Committee to be cognisant of the very live debate happening on the right-wing fringes of the Conservative Party, seeking to repeal the Human Rights Act of 1998. That simple fact is a touchstone as to why we, in this jurisdiction, must have a bill of rights. It cannot be disregarded as a lunatic fringe, because that is the same constituency that has visited Brexit upon us; an event that nobody here voted for and which was overwhelmingly rejected by our electorate. We need to be vigilant against future threats, and one of those threats is the growing debate that the Human Rights Act itself be repealed.
In 'The Irish Times', Fintan O'Toole observed:
"Northern Ireland is not Lincolnshire or Somerset. It is a distinct and unique political entity, recognised as such by an international treaty registered with the United Nations".
We must recall that the Human Rights Commission's 2008 advice itself was a compromise document and did not include everything that civil society organisations wanted. The NIO's response, and I want to focus on this, supported the inclusion of only two of the Human Rights Commission's 78 recommendations: the right to vote or be elected; and the right to identify and be accepted as British or Irish or both.
What I would now like to do is examine how a bill of rights might have helped our jurisdiction in recent years. I was struck when preparing for this by the submission of the Equality Coalition to the Committee, which was helpful and illustrative. The coalition argued that a bill of rights could have prevented many of the issues that destabilised power-sharing and contributed to its collapse — legislation and policy that would not have been lawful had a bill of rights been in place. It would have stopped such actions dead in their tracks. That includes that the diversion of Executive business into repeated attempts to enact rights-based provisions would have already been in place, had a bill of rights been enacted.
3 I will examine this in three areas from my own personal and professional perspective: legacy, wherein I have a professional practice; citizenship, which is touched on through Ireland's Future; and, from a personal perspective, language protection. I raise my children through the medium of Irish, and they attend Irish-medium primary schools.
The legacy provisions of a bill of rights would have ensured the codified incorporation of article 2 requirements for independent investigations into unresolved deaths and would thus have prevented the antics of the Secretary of State last year, when he abandoned the Stormont House Agreement for some theoretical, non-investigative, information-gathering exercise. Unfortunately, I was in a coma when that happened, due to complications arising from COVID. When I came round, I could not believe that the Secretary of State would seek to unravel a locally agreed political agreement.
The High Court is already exercising safe custodianship of the principles of article 2. As an annex to my written submission, I have included a list of judgements by our local High Court upholding the principles. However, in this day and age, victims and survivors should not be required to assert their rights through acts of litigation. Sometimes it is lost on politicians just how emotionally devastating it is for victims and survivors to be engaged in entrenched litigation. Following consultations and long hard days in the High Court, I know that many families go home and cry themselves to sleep. Victims and survivors should not have to go through that recourse.
Compliance with article 2 of the European Convention is not merely an issue for Stormont. Stormont is not a sovereign entity, but Westminster is, and it is Westminster that signed the European Convention on Human Rights. Similarly, it is for Westminster to legislate on a bill of rights, as previously promised.
With regard to citizenship, had even one of the two recommendations that the NIO accepted from the Human Rights Commission's 78 recommendations been adopted into a bill of rights, in one subtle and decisive piece of legislative drafting, we could have totally nullified and neutered the most vexed constitutional question posed this century: Brexit. Had the citizenship provisions been in place, they would, most notably, have precluded the imposition of a hard border on our island.
The mere adoption of the right to identify and be accepted as British or Irish would have foreseen, with Solomon-like wisdom, the Home Office's hostile environment decision to treat almost all persons born here as British for statutory purposes. That decision, which is well known due to the challenge by Emma DeSouza, was taken expressly to prevent Irish citizens born in the North from exercising EU rights tied to Irish citizenship. That led to the extraordinary position of the UK Home Office suggesting that, if they wished to exercise the rights in question, people should renounce British citizenship, which many hundreds of thousands never considered that they held. Those problems could not have arisen if citizenship provisions in a bill of rights had been enforced.
With regard to language, it is remarkable that this jurisdiction is the only region in Britain or Ireland to make no statutory provision for the protection of a minority language in accordance with the European Charter for Regional or Minority Languages, which was signed and ratified over 15 years ago. Irish is an official language in the Republic of Ireland and is guaranteed constitutional status through Bunreacht na hÉireann. Welsh is afforded statutory protection under the Welsh Language Act 1993, which has had several statutory renewals since. Scots Gaelic is protected under the Achd na Gàidhlig (Alba) 2005, so why is it that citizens in Scotland, Wales and the South all benefit from statutory protection for indigenous languages but that right is denied to citizens here? I look forward to that legislation being progressed before the Assembly elections next year.
This issue, which contributed to concerns over the sustainability of the institutions, could have easily been neutralised by a bill of rights. It should not have taken this long. Although many language rights campaigners have commented that the Human Rights Commission's advice in 2008 could have gone further in terms of protections, it did recommend that the provisions of the European Charter for Regional or Minority Languages should be justiciable, which would have cauterised unlawful intentions at an early stage.
In recent years, I have been instructed by clients who have successfully challenged the unlawful cancellation of the Líofa bursary scheme in December 2016 and the unlawful language policy adopted by Antrim and Newtownabbey Borough Council in 2018, which sought to adopt a policy imposing a blanket ban on bilingual street signs containing displays in both Irish and English. Although I, of course, enjoy receiving instructions, taking and winning cases in court and being paid, citizens should not be compelled to seek recourse to the High Court to safeguard their rights when a bill of rights should set those rights in stone.
4 I want to discuss how a bill of rights might be considered an insurance policy for all citizens going forward. In deeply divided societies, it has been observed that law is not always viewed as politically neutral or objective. One commentator has noted that unionist ideas about what a bill of rights should encompass are deeply informed by perceptions of the legitimacy of the state and its institutions. The DUP, in its 2003 document 'A Bill of Rights for Northern Ireland?', asserts caution on the imposition by a bill of rights of constraints and limitations on the Executive giving judges a more expansive role, although I would argue that, surely, judicial supervision, with the benefit of 18 years, has been expansive anyway in the absence of a bill of rights.
Louise Mallinder, an academic at Queen's University, argues:
"Unionist self-identification with the State means that actions that are perceived as anti the British State are also perceived as anti-Unionist."
She has reported a quote by the current First Minister, Arlene Foster, who stated, when referring to unionists:
"human rights is like a foreign language to most".
That was in an article in 'Fortnight' magazine in February 2003. A former PUP representative was also reported as saying:
"rights are seen as a Catholic thing, it’s not a Protestant thing."
My citation for that is chapter 2 of 'Political Capacity Building: Advancing a Bill of Rights for Northern Ireland', which is a report that was published in 2014.
If that innate sensibility is accurate, I would respectfully submit that it is misplaced. Rights are not British or Irish. Rights are for everyone. They are blind to nationality. Everybody benefits from a strong framework for protection, and everyone loses when rights are deprived. The risk is that the value to be derived for all communities through active engagement with rights discourse is therefore lost.
I will return to the Human Rights Commission's advice from 2008, which was faithful to the explicit parity of esteem provision in the Good Friday Agreement. The advice provided for a right is:
"Public authorities must fully respect, on the basis of equality of treatment, the identity and ethos of both main communities in Northern Ireland."
It added the important qualification:
"No one relying on this provision may do so in a manner inconsistent with the rights and freedoms of others."
In short, this equality of treatment provision protects both main communities. Indeed, in this week, the week of the census, unionism and loyalism may reflect on changing demographic tags and the fact that unionism has lost its majority — a majority held and inbuilt since the inception of the state — in the three Parliaments to which it has aspired in the last three elections. That majority is gone forever. Gregory Campbell spoke on RTÉ on Monday night of three minority communities in the North, and that could be right.
It might bear the interests of unionism well to consider a bill of rights as a necessary insurance policy in the face of future constitutional change. Of course, that is the genius of the Good Friday Agreement, which guarantees mutual equivalence. It requires:
"the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions and shall be founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities".
That phrase should be written on a stone tablet somewhere. It ensures that everybody will have equal protection under the law. The obligation of rigorous impartiality will transfer to the Irish Government in the event of reunification. The commitments to parity of esteem, equality of treatment and rights will
5 have implications for reunification proposals. The Irish Government are under an obligation to provide at least an equivalent level of rights protection and have already made changes to their constitution to reflect that aspect of the agreement.
It is notable that, for example, the agreement anticipated a bill of rights for Northern Ireland and led to further effect being given to the European Convention on Human Rights and the creation of the Human Rights Commission. Any bill of rights that is adopted now will have implications and guarantees that are required in the event of reunification. Work will be needed to ensure that there is minimum equivalence, and reunification would result in no diminution of protections. As noted, that will create an opportunity to discuss the adoption of, perhaps, an even more expansive range of rights and equality guarantees. Now is the time to do that.
Professor Monica McWilliams, the commissioner who proposed the 2008 advice, stated in the preamble to that advice:
"A democratic society must respect the human rights of all, if it is to be worthy of that name, and should provide assurances that people are to be treated fairly. By affording protections and safeguarding against abuses, a Bill of Rights should move us forward from our contentious past as well as being a point of reference for future generations. No one should feel defensive by the enactment of these rights. A Bill of Rights must be applicable to everyone and should, in this sense, belong to all of us."
I have made presentations on this general area before, and I often return to the theme that I will close on, but that is because it really bears relevance to our current considerations. This is it. It should be recalled that the European Convention on Human Rights was drafted by British lawyers, some of whom prosecuted at the Nuremberg trials and were determined to spare Europe from the horrors of communism and fascism. Indeed one of the draftsmen of the convention was David Maxwell Fyfe — his family were of Fyffes bananas, in fact. He was a very senior Conservative politician and, at one stage, was Home Secretary. When he worked on the European Convention on Human Rights in the late 1940s, he and other European Conservatives disposed of early drafts that mentioned the rights of workers. The European Convention on Human Rights makes no mention of shelter, housing, free education or healthcare. It is not a radical, left-wing, liberal document. Indeed, Maxwell Fyfe himself was a stern advocate for the criminalisation of homosexuality, and, whilst Home Secretary in 1952, he issued the Maxwell Fyfe directive, which became the de facto constitution of the security service until the Security Service Act 1989 set it on a statutory basis. Mr Maxwell Fyfe was a very safe, Conservative pair of hands, and he drafted the European Convention on Human Rights.
In a celebrated speech in 2009, the late Lord Bingham listed the liberties that the European convention protects. Those are basic principles: the right to life; the right not to be tortured or enslaved; the right to liberty and security of the person; the right to marry; the right to a fair trial; the freedom of thought, conscience and religion; the freedom of expression; and the freedom of assembly and association. Lord Bingham rhetorically enquired of his audience:
"Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any of them un-British?"
There must be no retreat from human rights and equality gains. Rather, they must be woven into the legal fabric of our society in a bill of rights that will benefit everyone, irrespective of the prevailing constitutional status.
The Chairperson (Ms Sheerin): Niall, thank you very much. That, with your written presentation, was indeed detailed.
You are involved with the Ireland's Future initiative. It will not be any surprise that my position on the constitutional situation aligns with your own. I asked other witnesses about a bill of rights being a mechanism to hold Governments to account, to prioritise rights and to ensure that decisions that they make are not going to impact on citizens negatively but are done with their best interests at heart.
Your written submission refers to a bill of rights being a:
"necessary insurance policy in the face of future constitutional change"
6 for the unionist population in the North, and, presumably, in the South. As the conversation is happening at the minute, and the likelihood of constitutional change increases all the time, we can see how negative Brexit was. You spoke of the toxic debate and the toxic impacts of Brexit, and how that was mishandled by the right-wing architects in the Tory Government in England. How could a rights- based approach mean something different for constitutional change on the island of Ireland? If we had a bill of rights or charter of rights, North and South, how would that impact on all our citizens as we move into reunification?
Mr Murphy: The opportunity being examined by the Committee is, perhaps, the most timeous this century to enshrine and place human rights on a constitutional footing and to shape the landscape for human rights for this century, irrespective of constitutional status.
We do not know what Westminster is going to do next but we do have the opportunity to shape the human rights landscape for this jurisdiction now. In doing so, because of the mutual equivalence provisions of the Good Friday Agreement, we get to shape and dictate the human rights landscape for any new constitutional arrangement that may come to pass. I do not doubt that there is a lot of water to go under the bridge before that may occur, but the opportunity to shape, refine and define the landscape for us now and for us all in the future really is a legislative gift and opportunity. Your Committee has a historic weight upon its shoulders. The key is timing, and now is the time. The Good Friday Agreement is 23 years old. I find it remarkable that, 23 years on, this key provision, which was overwhelmingly mandated by the people, has not been legislated for. So, if not now, when, and, if not by this Committee, by whom?
This is the opportunity to shape and define a rights matrix forever, because whatever is agreed will have to be, as an irreducible minimum, replicated in the event of constitutional change.
The Chairperson (Ms Sheerin): Thanks, Niall. I have one more question. You set this out very clearly in your oral and written presentations, and I do not want to rehash old ground too much, but I just want to draw some of it out. In your comments, you referred to the perception of unionist opposition to a bill of rights or to legislating for rights. We can see even in the survey that was carried out for the Committee — we had the results of that earlier this afternoon — that there is widespread support for a bill of rights and that a high proportion of the unionists or the people from a Protestant/unionist/loyalist (PUL) background who responded to the survey are in support of legislating for a bill of rights. I therefore think that that perception has sometimes been a misconception and has been perpetuated unnecessarily.
You commented on the Irish language and the fact that the North is the only jurisdiction without protection for minority languages or indigenous languages. I know that much has been made of the things that would have been prevented by a bill of rights, and those were raised during the briefings by the Committee on the Administration of Justice (CAJ) and the Equality Coalition. Even this week, there has been talk of blocking an Irish language Act and the lack of progress on the legislation. We did not have an Assembly for a number of years, and the denial of rights was the reason for that. Had those rights been in place, certain things would not have happened or certain blockages would not have arisen. Do you agree with that?
Mr Murphy: Yes. I do not envy you your role as elected representatives. You collectively carry a very significant weight on behalf of all of society, and I think that there is often too much criticism. It is easy to lament and criticise politicians, but I know that nobody enters public life other than to do their best by their constituents. Had a bill of rights been legislated for when it should have been legislated for, it perhaps would have made the role of elected representatives much easier, because the matter would have been neutralised and taken out of their hands.
I regret to observe that the failure to give legislative expression to that which was democratically mandated overwhelming by the electorate here lies squarely with the British Government. It is now incumbent upon the Executive to ensure that those legislative failings of the past are not allowed to perpetuate any further. It will make your lives easier, because a bill of rights will stand up for itself. As I say, they are not British rights or Irish rights; they are human rights. The key is in the title. We are all humans. Therefore, when rights are protected, everybody benefits. I find it a curiosity that anybody, in this day and age in the 21st century, would seek to limit the rights that any person in this society should enjoy. The time for talking is drawing to a close, and the time for legislating should be beginning.
7 The Chairperson (Ms Sheerin): Thanks, Niall. I am in total agreement. I will pass over to the Deputy Chair. Mike, do you have any questions or comments?
Mr Nesbitt: I have some of both, Chair. Niall, it is good to see you. Thank you for engaging.
Mr Murphy: Thank you, Mike.
Mr Nesbitt: Given your reference to the coma, I just want to say that I hope that you have now fully recovered from COVID-19. You are looking good.
By way of comment, I was pleased that you mentioned the declaration of support at the beginning of the Belfast/Good Friday Agreement. I understand that it is a complex, interwoven, interdependent document, but I quote that particular paragraph a lot, because I think that the relationships are as key today as they were 23 years ago. Every time that an issue here, at Stormont, has escalated into a crisis, part of the problem has been that the right relationships were not there to deal with it.
Niall, I know what you were saying when, at one point, you said that "nobody here voted for" Brexit. However, just to be clear, 44% did, and I was not one of them.
I have two questions. First, you talked about minority languages in the European Union but not the Framework Convention for the Protection of National Minorities. Do you agree that we need to look at that as we go into our deliberation phase?
Secondly, you referred to the fact, and this is in the agreement, that, if we do something on rights in this jurisdiction, that places an obligation on the Government of Ireland to do the same in their jurisdiction. Keep me right here, Chair, but I think that Judge Richard Humphreys got quite nervous when we discussed that during his evidence session. I got the impression that he was saying, "Well, that was 23 years ago, and you really can't have one jurisdiction imposing legislative statutory duties on another". What are your thoughts on those two areas, Niall?
Mr Murphy: Thanks, Mike. I will take the second one first. I am not likely to appear in front of Judge Humphreys, given that I have not been called in the South, so I can say this: regardless of whether or not he is nervous, I would respectfully argue that it is black and white; it is clear. Judge Humphreys has written an exceptional book on the Good Friday Agreement, which I implore everybody to read, so he is quite authoritative on the issue. I am therefore surprised to hear of his reticence about the mutual equivalence guarantees. My reading of it is that it is very clear and very succinct about the fact that if a rights guarantee is afforded in this jurisdiction, in the event of constitutional change, that must be replicated going forward. France is on its fifth republic, if my history A level serves me right. In the event of constitutional change — I know that this is not the forum for that debate today — I would expect that the new island nation would require a new constitution, and, in effect, there would be a second republic that must, in and of itself, understand and appreciate, in that document, the concerns of every single citizen and every single section of society. I am therefore quite bombastic about saying that, going forward, there would be a constitutional guarantee of mutual equivalence of rights. The opportunity to shape that lies in your hands. I return to the unenviable weight that falls on your collective shoulders, and I have full respect for all of you for that.
On your first enquiry, it is very simple: absolutely, the framework to which you refer should form part of your considerations. There are more than 20 rights that I could have sharpened focus on, but I appreciate that there is a short window of opportunity for this. Philosophically, I would adopt a an expansive approach rather than a restrictive approach.
Mr Nesbitt: OK. I appreciate that. On the second point, I am now nervous that I have either misquoted or misunderstood what Richard Humphreys said. Are you saying that that sort of equivalence would only come in the event of constitutional change? I thought that the agreement said that, as soon as we did it, the obligation would be on the Government of Ireland to react in a timely manner.
Mr Murphy: It would absolutely be required in the event of constitutional change. I am 100% certain of that. Would a bill of rights as adopted in this jurisdiction be immediately transposable to the Southern jurisdiction? I am not sure; I do not want to publicly profess that without researching it further — I undertake to do that — but I expect that it should. In the event of constitutional change, I would be certain that it must.
8 Mr Nesbitt: I would appreciate your view on the issue. There is certainly some confusion in here. Niall, it is good to see you. Thank you very much.
Mr Murphy: Thank you very much.
Ms Ní Chuilín: Hi, Niall. Is deas thú a fheiceáil. It is nice to see you. Emma, can you hear me? I am having problems with my computer. You can. Grand.
Niall, as I said to the other witnesses, I have had my camera off because I am having problems with my tablet, so it is not that I am not interested or am skiving off; I am listening very carefully. I, like Mike, am delighted to see you in really good health.
Mr Murphy: Thank you.
Ms Ní Chuilín: I think that the Richard Humphreys' book is called 'Beyond the Border', and I think that Mary McAleese wrote the foreword for it. It is a good read. I was not on the Committee when Judge Humphreys presented. While reading that book and thinking about some of the questions and some of the events, it struck me that, because Ireland is a co-guarantor of the Good Friday Agreement, there needs to be, in the event of any unity referendum or transfer, almost a second charter for a second republic and all those rights. The fact is that you have ECHR — you did not say this, but I will — almost as a floor, so you start to build in your stairs and ceiling on it. That is my expectation, but I am not legally trained. I am just an avid reader trying to think my way through all that.
Thank you for your lengthy presentation, including your written presentation. It was very concise and thought-provoking. I declare an interest as the person who was responsible for bringing in Líofa. I am not getting into the whole Líofa debacle, but, when things are fragile here politically, the first place that people go to is, "You're not getting an Irish language Act". In the absence of a bill of rights, that leaves many children, young people and families feeling very fragile and nervous, despite the fact that it was in 'New Decade, New Approach'. I just want to put that on the record.
You said that there is a review of the Human Rights Act in Westminster and that Westminster should bring forward a bill of rights. In the event that it does not, what options do people have? I appreciate that it is a small minority that wants to review the Human Rights Act, but small minorities are like wee acorns — they have an ability to grow at a very fast pace.
My other question is about the European Court of Human Rights, which has ruled on loads of article 2 cases and on the fact that article 2 has been breached. Families have had to use solicitors like you to try to find out what happened to their loved ones. Recently, the Council of Europe decided to step in and open an investigation into the murder of Pat Finucane. Indeed, it will probably do that for others. In your opinion, if those rights were properly incorporated into a bill of rights, could we be sure that they would be applied retrospectively? If we had a bill of rights, would people still need to go to court in the way that they have done in order to get access to a hearing?
Finally, you heard the presentation from the Assembly staff on a survey into a bill of rights, and, while Louise and Robert gave a lot of [Inaudible due to poor sound quality] Caroline and our staff here were heavily involved in that. However, it is not moving. Even surveys from 2003 and 2008 showed that 82% of citizens here want a bill of rights. In the event that there is a clear majority for a bill of rights and one is achieved, where, in your opinion, do people go next? Thanks, Niall. Go raibh maith agat.
Mr Murphy: Thank you. I will take the second question first, please, Carál, which was on the retrospective application of article 2 ex post its inception in a bill of rights. I could confidently proffer a guarantee that it would be retrospective, independent of Westminster's legislative position on a repeal of the Human Rights Act 1998, or, indeed, if Britain were to derogate from the Council of Europe and withdraw from the provisions of the convention, which David Maxwell Fyfe and others drafted. It would be remarkable if Britain were to derogate and withdraw, especially if you think of the macro international global political message that that would send to a Russia, a Saudi Arabia or a Turkey. It would send a message that Britain does not consider itself bound by the European Convention on Human Rights. It would be a catastrophic political message for Britain to send, and I think that the sensible people in that room would prevail. However, there are those who are not sensible and who are seeking to do that.
I do not think that Theresa May's political position has been adequately weighed up historically, and history might do that in future years. As Home Secretary, she was against Brexit but was pro the
9 repeal of the Human Rights Act. That was a much more dangerous position. Her view of the Human Rights Act and the convention was that they frustrated her role as Home Secretary. She understood the economic madness that Brexit was, but, where the selfish, arrogant British interests that it would not be told what to do by Europe are concerned, she understood that whether a banana was straight or bent was neither here nor there. However, if it was impeding the execution of her power as Home Secretary, that was the problem. That was an opinion that did not hold sway in the Cabinet at that time, but it seems to be one that is coming back.
It cannot unravel the Good Friday Agreement because the Good Friday Agreement legislates the convention into our domestic law, and, almost constitutionally, it is something that citizens here will always benefit from. As your analogy goes, it is a floor, not a ceiling, and it is really the basic premise that we should aspire to use. I renew my observations about the convention to say that it is not a liberal, left-wing document. I am sure that citizens in Dublin who cannot get a house at the minute lament the fact that the right to housing was not protected in the European Convention on Human Rights, because had it been, the debacle in housing in the South might not be where it is. Yes, there would be retrospective application of article 2 in a bill of rights as a matter of fact — absolutely.
Regarding the enquiry about whether citizens might still seek the recourse of the court, they might very well do. For example, the only reason that the Police Ombudsman has a historical directorate is that the British Government proposed it. That is often lost in the discourse about legacy investigations. Chris Patten did not envisage the Police Ombudsman having a historical directorate. Its retrospective mandate was 12 months. It was the British Government that proposed that the ombudsman have a historical remit to investigate article 2 offences for which the British Government were liable because they were a signatory of the European Convention on Human Rights for so long. They had been found guilty in Strasbourg in six cases from 2000 to 2004. Those are called the McKerr group of cases, of which Finucane was one and Shanaghan another. The cumulative effect of those six Strasbourg cases was that Britain was condemned as a human rights abuser under the most fundamental right: article 2, which is the right to life. Britain was obliged to execute those judgements. There is an office in Strasbourg called the supervision of the execution of judgements office, which ensures compliance. That office prepares a report for the committee and Ministers to ensure that Governments are complying with their duties under the convention and are in compliance with court orders. The only reason that there is a historical directorate in the Police Ombudsman is because Britain proposed it to Strasbourg. When they were found guilty by the court and asked, "What are you going to do about this?", they said, "Well, we are going to put a historical directorate onto this new fancy office that we have".
Legacy inquests are similar. Our coronial system did not have the capacity to deal with the many legacy inquests that it has. However, through the courageous pioneering work of our Lord Chief Justice, who retires this summer and who will leave big boots that will need to be filled, the court stood up and said, "We will discharge the state's obligation under article 2". He is a judge, so he understands the law.
However, where those mechanisms fall down is in resource. I had a Zoom meeting with the Justice Minister and the Ormeau Road families after the disgraceful events of 5 February. I reinforced to her that there is no point in having a Police Ombudsman's Office that does not conclude reports in a timely fashion. The ombudsman's budget for the historical directorate has been shrinking, really since Al Hutchinson's time. The budget this year is less than it was 10 years ago, but it has many more hundred cases that it must investigate. It is mostly very difficult to sit down, as a solicitor, with perhaps a widow in her 80s or a mother in her 80s and take her through a letter that she just received from the ombudsman that says, "We will not start your investigation until 2025 because we have no money", when that lady knows that she will not see 2025 or 2028, when she might receive a report.
Similarly with the inquest system, it has been observed that we could be doing inquests for the next 30 years unless resource is applied. The direction and application of resource is a political decision. If you, as the Executive and legislators, apply the appropriate resource to institutions that the Government have proposed to discharge its sovereign obligations to, all society will benefit. Policing, for example, will benefit when it does not have to deal with legacy. Our legal system will benefit when families do not have to challenge decisions in the High Court. The judiciary will benefit because, even with COVID, a long backlog is fast emerging. To cut a long story short — I apologise for the length that I have gone on — families may well find themselves back in court litigating to ensure that their rights are protected. That might be a resource issue, and that is a political responsibility.
Ms Ní Chuilín: Thank you, Niall.
10 Mr Durkan: Thank you, Niall, for the presentation. It is great to see you looking so well and to hear you sounding so well. You are obviously recovering well, which is great.
I was going to ask a question but then decided that it was a stupid question, so I was not going to ask one. However, Niall's last remarks made me think of another one. Niall, you referred to the bill of rights as an "insurance policy". I cannot remember exactly who, but, in the earlier evidence sessions, a member of the judiciary and someone else from the legal profession expressed a degree of nervousness about the number and nature of claims on that insurance policy. You referred to the backlog of cases in the court, which is exacerbated by the COVID situation in particular. Do you have a view on that? Do you think that, once we get a bill of rights, there will be a deluge or rush of cases at the outset that will taper off?
Mr Murphy: No, because, fundamentally, the core rights that a bill of rights will protect are already justiciable. In policy and law terms, it is called the floodgates argument. I do not see the advent of a bill of rights creating a floodgates concern for the courts. That dam already burst in 2000 with the Human Rights Act; it was legislated for in 1998 but was not given legislative effect until 2000. That allowed citizens to domestically litigate their expectations of the convention in local courts. There will not be an opening of the floodgates for future litigation.
I much prefer to consider the bill of rights to be a protection for our future generations. Whereas our generation will shape and defend it, as Maxwell Fyfe's did with the European Convention, it will be for future generations of young citizens to consider. We heard their evidence so cogently and eloquently just before 3.00 pm. It is our future generations that we are legislating to protect.
Mr Durkan: OK. Super, Niall. It was good to get your perspective on that. Thank you.
Ms Bradshaw: Thank you, Niall, for your presentation. It probably went a wee bit further than I was expecting, as in your opening lines you said that you had come here to present as somebody who works in the field and who will deal with the matter in the courts. Could you talk more to how you think a bill of rights will impact on your work as a solicitor?
Mr Murphy: A bill of rights will provide a very definitive local framework that will assist people in asserting their constitutional privileges. I foresee a bill of rights having a pre-emptive, medicinal effect insofar as it will cauterise wrongful intentions in local authorities, be they councils or statutory bodies, because they must benchmark anything that they seek to attempt against the bill of rights. For example, the council decision that I referred to could not have got off the ground had there been a bill of rights that the council's legal advisers had to consider. In effect, therefore, that makes for good governance. Really, that is one of the overarching principles of a bill of rights: it makes the role of the legislator less contentious because there is a sterile tablet with rights written on it that will assist in preventing wrongful intentions being taken forward either misguidedly or malevolently. In fact, going back to Mark's enquiry about whether a bill of rights might lead to a floodgate of litigation, it could lead to less because there would be a stronger base or framework to which all legislative or Executive intentions would have to comply.
Ms Bradshaw: Thank you. We on the Committee have been saying that it would be a sort of pre- legislative scrutiny tool. As you said, it would mean that policies and laws do not get so far that they breach human rights. I appreciate your answer on that.
My second question is on the changing demography in Northern Ireland, and I do not mean just the growth of the centre ground. People maybe do not identify as unionist or nationalist but as Irish and British at the same time. How could a bill of rights contribute to a more cohesive society here where more people feel a sense of place and that this is a place where they feel valued and belong?
Mr Murphy: Absolutely. In my opening remarks, I said that rights are not British or Irish; they are for everyone. They are human rights and everybody benefits when everybody benefits. That immediate concrete base, to use Carál's analogy, will create a stronger footing for all of us to enjoy our citizenship.
I agree with the remarks that Gregory Campbell made on RTÉ on Monday night wherein he said that, ex post census, there will likely be three minorities in our jurisdiction. Therefore, we have to do that. We are all co-dependent on each other; we all live here, and we are all each other's neighbours. We all work together, go to school together and socialise together. In my opinion, our co-dependence and
11 vigilance for each other and everybody's respective rights will make for a better society. Nobody should feel threatened when another person feels protected.
Ms Bradshaw: OK. Thank you, Niall. I echo what others said: it is good to see you in good health and at the Committee. Thank you.
Mr Murphy: Thank you.
The Chairperson (Ms Sheerin): OK. I do not think that any other member has indicated that they want to speak. Speak now or forever hold your peace. I think that we can leave it there, Niall.
I reiterate our thanks to you for joining us, for your presentation and for that lengthy question and answer session. Again, please accept the best wishes of everyone after your ill health last year. It is great to see you out and about and looking so well. Thank you very much. We will let you drop off the call now.
Mr Murphy: Thank you.
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