Bill of Rights for NI: why have one?

I have previously written about the student working group on human rights I am a part of. Our main area of focus is on the Bill of Rights for Northern Ireland, as provided for in the Good Friday Agreement 1998.

Our work to date has involved examining the historical context to the proposal of a Bill of Rights for Northern Ireland, and considering the provision for a Bill of Rights within the Good Friday Agreement. I personally have examined and summarised the 2008 submission of the Northern Ireland Human Rights Commission to the Secretary of State for Northern Ireland, and the Joint Committee’s 2011 advice on a Charter of Rights for the island of Ireland. Another participate has summarised the response of the Northern Ireland Office to the Northern Ireland Human Rights Commission 2008 submission. We are currently working on incorporating our research into a report, and we will conclude by submitting our argument that a Bill of Rights for Northern Ireland is necessary, and now is the time to see it realised.

Northern Ireland faces great uncertainty in the wake of Brexit. We are currently experiencing a political vacuum – no agreement was after weeks of talks to form a new Executive after the snap March election, meaning we have no devolved government, and now talks are paused for the snap General Election – with the threat of direct rule looming on the horizon. Given political uncertainty and lack of government, the need to recognise and protect human rights in Northern Ireland is vital.

Many countries have a bill of rights in some form. It has been found that 82% of constitutions drafted between 1788 and 1948 contained some form of human rights protection. This figure increased to 93% between 1949 and 1975. This trend continued throughout the 1980s, and by 1990 onwards, as many countries underwent peace processes and transition towards new constitutional settlements, human rights frameworks became routine. This ‘routine’ was applied to Northern Ireland as it underwent a peace process and constitutional transition in 1998.

A bill of rights is a constitutional document, essentially a list, of the most important rights and freedoms belonging to the citizens of a state. The primary purpose of this document is the provision of rights, and the protection of those rights against infringement, with the bill of rights acting as a type of contract between citizens and the state.

States may opt to enshrine a bill of rights as they recognise there are certain values and principles which are so basic, and so fundamental, they wish to put them beyond the reach of government. Rights such as the right to fair trial are arguably matters to be protected against state interference, irrespective of shifts in the political landscape. Bills of rights therefore aim to separate these fundamental values from politics, and subjective political interpretation.

Adopting a bill of rights also provides for a clearer understanding of the democratic structure of the state, especially with regards to restrictions on political decision-making, and the state’s responsibilities for its citizens. This model emphasises participation, but also ensures a balance between necessary limitation of majority rule – thus preventing any abuses of power – and the encouragement of equal participation of all.

States therefore tend to adopt bills of rights when agreeing upon a new or revised constitution, as part of a peace settlement after a period of internal conflict, and/or as a solution to political, legal or moral pressure to address failures to protect rights.

Bills of rights provide legal recognition and protection of rights to all citizens, but it applies particularly to those within marginalised and vulnerable groups. This is of relevance to Northern Ireland, where human rights issues have been raised in relation to children and women in detention, women accessing reproductive healthcare, equality for the LGBT* community, and the Irish-speaking community. Adopting a Bill of rights would ensure a defense for these communities, and provide legal protection of their rights and redress for violations of same.

A Bill of Rights for Northern Ireland is not a new proposition. Since the 1960s, there have been calls from across the political divide for a Bill of Rights for Northern Ireland. The common argument is a Bill of Rights would provide for a stable, shared society built on equality and non-discrimination. As part of a constitutional foundation, it would ensure no matter who was in power, human rights would be respected.

Brexit and the Bar Council: the Great Paper Debate

I have written a few times about the ongoing uncertainty regarding the outcome of the UK’s referendum on continued membership of the EU, and the legal sector.

Between the issue of whether UK lawyers would be qualified to work in the EU, and UK lawyers thus seeking re-qualification in Ireland, to the issue of the CJEU and whether justice was a priority for the British government during negotiations (it is not, I believe), there constantly have been queries regarding UK law, and how it will operate post-Brexit.

It would seem that the legal sector is growing tired of the lack of official clarification, and wants some certainty restored and answers given.

The Bar Council of England and Wales has said the British government should seek to clarify how it intends to pursue its future relationship with the Court of Justice of the European Union (CJEU), claiming a white paper on its break away from EU law merely ‘scratches the surface’ of the issue. A valid point, as the White Paper has a little section (‘little’ is an appropriate description; it is just four pages long) entitled ‘EU Law in the UK’. Only, it happens to be an annex at the end of the entire White Paper.

In response to the Department for Exiting the EU’s Great Repeal Bill White Paper, the Bar body said domestic courts’ future relationship with the EU will be ‘complex and nuanced’.

For example, the Bar Council said the White Paper does not deal with the possibility of UK courts making references to the CJEU post-Brexit ‘in proceedings concerning a factual situation governed by EU law arising pre-Brexit.’ Conceding this might be considered a ‘rather technical point’, the Bar Council argued whatever provision the Great Repeal Bill makes ‘might not prevent the CJEU from finding other routes to assuming jurisdiction over things taking place in the UK during the period when the treaties remain applicable’.

Moreover, it said there will ‘presumably be a need to provide for the domestic consequences of any dispute-resolution mechanism between the UK and EU appearing in the withdrawal agreement and likewise in any future agreement for the new relationship’.

The Bar Council said it is currently preparing a paper on the CJEU which it says it hopes will provide more opportunity to contribute to the British government’s thinking on matters.

The council added that it is concerned that specific safeguards recommended by the House of Lords Select Committee on the Constitution are not ‘watered down into vaguer ministerial assurances’ and should be clearly written into the text of the bill.

Safeguards proposed include that powers to enact delegated legislation will be used only ‘so far as is necessary to adapt the body of EU law to fit the UK’s domestic framework’ and ‘to implement the result of the UK’s negotiations with the EU’.

 

The Bar Council submitted: ‘…we consider that the white paper could have been clearer on what is or is not to be treated as “EU- derived law” as time progresses and what the approach will be to future changes to EU law which might affect that “EU-derived law” beyond the point of exit from the EU.’

It will be interesting to see what the Bar Council’s paper proposes. No doubt it will be detailed, and will aim to provide more clarity and certainty on the issue. This just goes to show how complex the negotiations will be, and indeed, how unprepared the British government appears to be.

Human rights working group – Bill of Rights for Northern Ireland.

For the past couple of months, a group of QUB students, including myself, have been part of a working group on human rights in Northern Ireland. We are focusing particularly on the need for a Bill of Rights in Northern Ireland, as provided for in the Good Friday Agreement 1998.

The Good Friday Agreement 1998 included the commitment that the upon the establishment of a Northern Ireland Human Rights Commission, it would be asked:

“…to consult and to advice on the scope for defining, in Westminster legislation, rights supplementary to those in the ECHR, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experiences. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland.”

This commitment was subsequently reflected in the Northern Ireland Act 1998.

As the 19th anniversary of the Agreement recently came and went  against a backdrop of continued political stalemate and inertia, we feel it is time for the Bill of Rights to be prioritised.

A Bill of Rights for Northern Ireland, which would take into account the particular circumstances of Northern Ireland, would ensure legal recognition and protection of the human rights of all our citizens. Human rights has become topical here since the very announcement of the March election, let alone after the smoke cleared and the parties sought to interpret the results delivered by the electorate. As the political situation rumbles on, with legacy cases and Irish key issues, and as the outcome of Brexit remains uncertain, it is time for a Bill of Rights to be realised for the benefit of all.

Bills of rights provide legal recognition and protection of rights to all citizens, but it applies particularly to those within marginalised and vulnerable groups. This is of relevance to Northern Ireland, where human rights issues have been raised in relation to children and women in detention, women accessing reproductive healthcare, equality for the LGBT* community, and the Irish-speaking community. Adopting a Bill of rights would ensure a defense for these communities, and provide legal protection of their rights and redress for violations of same.

A Bill of Rights for Northern Ireland is not a new proposition. Since the 1960s, there have been calls from across the political divide for a Bill of Rights for Northern Ireland. The common argument is a Bill of Rights would provide for a stable, shared society built on equality and non-discrimination. As part of a constitutional foundation, it would ensure no matter who was in power, human rights would be respected.

It’s been an utter pleasure to work with fellow students on human rights in NI, and I am looking forward to our future work!

We have written a blog post for Rights NI, an online platform for the discussion of human-rights based issues, entitled ‘QUB student working group calls for renewed consideration of NI Bill of Rights‘.

We are currently working on a report which will merge together our individial research and research papers on the subject. It will ultimately conclude that it is time for a Bill of Rights to be realised and implemented.

I am tasked with overseeing the report, and have spent the a couple of evenings after work merging the documents together. It has been fascinating work, and I cannot wait to see where we end up.

US Supreme Court blocks Arkansas from multiple executions.

The US Supreme Court has concluded a dramatic day of legal debate over Arkansas’ unprecedented plan to execute eight prisoners in just 11 days.

The Supreme Court declined to permit the state to go ahead with Monday night’s scheduled executions, in what amounted to a major victory for the condemned inmates’ lawyers and anti-death penalty campaigners. The outcome is certain to give weight to the other pending cases, and confidence to the defense lawyers of the remaining five death-row inmates who still face execution, starting with Stacey Johnson and Ledell Lee on Thursday of this week.

The Supreme Court took several hours to reach its decision, finally announcing at 11.50pm that it had declined to lift a stay on the execution of Don Davis, 54, imposed earlier in the day by the Supreme Court of Arkansas. The judgment brought the number of condemned prisoners who have now been spared the audacious execution schedule set by Republican State Governor Asa Hutchinson to three. The State Governor has found himself in a rush to use a batch of the lethal injection drug midazolam before it expires at the end of the month. Had the Governor’s proposed schedule gone according to plan, it would have marked the most intense schedule of executions in the US in more than 50 years. Even double executions on the same day are rare; the last time it was attempted, by Oklahoma in 2014, it led to a “bloody mess”.

Scott Braden, an attorney for Davis, said the US Supreme Court Justices had heard that Davis had been denied proper independent counsel on the question of his mental health. According to his defence counsel, Davis has an intellectual disability, a history of head injuries, brain damage, fetal alcohol syndrome, and other mental health conditions.

In a statement, Hutchinson said:

“While this has been an exhausting day for all involved, tomorrow we will continue to fight back on last-minute appeals and efforts to block justice for the victims’ families.”

Hutchinson’s schedule had seemed certain to proceed, after a ruling from the Eighth Circuit Appeals Court in St Louis, Missouri, which overturned an earlier temporary injunction imposed by a federal judge. That had opened up the possibility that at least six executions might still go ahead between now, and the end of April.

The Eighth Circuit Appeal overturned the ruling by federal district judge Kristine Baker, in which she questioned the reliability of midazolam, the sedative that is used as the first chemical in Arkansas’ triple lethal injection protocol.

“If midazolam does not adequately anaesthetise plaintiffs, or if their executions are ‘botched’, they will suffer severe pain before they die,” Baker wrote in her opinion.

Until the decision came down from the US Supreme Court, officials with the Arkansas Department of Corrections had been undertaking preparations for the execution to go ahead. Davis had been given his final meal, witnesses had been put in place in the death chamber, and the execution team was being readied.

Of course, Hutchinson’s schedule has merely been limited, not curtailed in its entirety. Attention now swings to the next set of executions on Thursday and beyond. The governor’s spokesperson underlined the determination of the state to press on with its grim timescale. The spokesperson has said the state “will continue, on Thursday, on Monday and then Thursday”, referring to the schedule of death warrants that allows for two executions to take place on each of the next two set dates, and one on 27 April.

But lawyers for the next prisoners set to be executed are already gearing up for an intense legal battle. The influential Innocence Project has joined local defence lawyers in Arkansas to call for DNA testing in the case of Johnson, and the ACLU has also now filed on behalf of Lee on grounds of DNA testing and innocence, and intellectual disability.

As a new death warrant would have to be set for Davis and Ward, with the process of final review of their cases having to start from scratch, it is understood there is not time to reschedule their executions this month in time to avail of the midazolam before its expiration date.

It must be recalled that due to strict distribution controls imposed by more than 30 drug companies in the US and abroad, it is now very difficult for states which carry out the death penalty to acquire medicines for use in state executions.

It remains to be seen what unfolds for the other men currently scheduled for execution. It also remains to be seen whether the death penalty is slowly but surely scheduled for its own end in the USA.

 

LSE-DB merger meets Brexit politics.

You might remember how I once wrote a blog post or two about the proposed London Stock Exchange-Deutsche Börse mega-merger.

This merger was supposed to create a bridge between Frankfurt, the Eurozone’s financial capital, and post-Brexit London, Europe’s and -sometime – world’s financial centre. However, the mega-merger designed to create a European champion for investors and listed companies — the very embodiment of the Commission’s capital markets union — is in deep trouble. And Brexit is its name.

Uncertainty about the UK’s future in Europe is what might just end the Deutsche Börse-LSE merger.

A few weeks ago, the London Stock Exchange announced its long-planned tie-up with Frankfurt-based Deutsche Börse was in troubled waters. The given reason for the situation was the claim that the LSE held ownership of an obscure Italian bond trading platform. Whilst the €29 billion deal was always far from a sure thing, and technicalities, for all their trouble are still important waters to navigate, the reality is that Brexit has caused jitters.

The merger between the two leading European exchange groups was left hanging by a thread after the LSE announced it was not able to meet a key condition for approval by European Commission competition authorities.

“Based on the Commission’s current position, [London Stock Exchange Group] believes that the Commission is unlikely to provide clearance for the merger,” LSE said.

LSE said the issue is that in mid-February, the Commission ‘unexpectedly’ asked the company to sell its majority stake in MTS, an Italian platform for trading bonds. The Commission’s competition directorate wanted LSE to commit to the sale by Monday, 27th February. The day before this deadline, the LSE said it could not do that.

The exchange’s statement does not explain why, but it implies that the Italian authorities didn’t want it to sell:

“Following dialogue with Italian authorities about the Commission’s required remedy and given prior discussions between the principals and Italian authorities regarding LSEG’s Italian businesses in the context of the merger, the LSEG Board believes that it is highly unlikely that a sale of MTS could be satisfactorily achieved, even if LSEG were to give the commitment.”

The LSE statement also implied that the deal’s chances are now slim. In the last paragraph, it says the company’s board “is highly confident in the strength of the [LSE’s] business, strategy and prospects on a standalone basis, under its strong management team led by Chief Executive Xavier Rolet,” who was going to leave after the merger but would presumably stay if there is no deal.

The Commission has until the 3rd April to make a decision on the issue – a date notably set after the proposed deadline for the British Prime Minister to invoke Art 50, and commence the process of formally withdrawing the UK from the EU.

The fact of the matter is, this was always going to be a very political deal, and it became an even more political deal after Brexit.

After months of preparation, a merger of this scale is not going to wither away on a technicality. What could yet end it is uncertainty over the UK’s departure from the EU.

Given that Theresa May has yet to even invoke Art 50, it remains too early to predict what type of arrangement the UK will acquire from the EU for the City of London. The regulatory uncertainty that financial companies face in the interim makes a deal like the LSE-DB merger risky if not outright negligent. Add to that the suddenly toxic politics in London, and on the Continent, around anything that touches on future relations between the two.

Of course, something might happen which would keep the merger alive. Some type of three-way deal might be struck between the LSE, the Italian authorities, and the Commission to allow the LSE to sell its big stake in the Italian bond-trading platform MTS to a buyer approved by the Italians.

But would require the Commission to extend the deadline for a deal to be agreed. And that’s not looking too likely.

Now, should the merger ultimately fail, the LSE could become the subject of another bid. This would most likely be in the form of a US rival, perhaps ICE or Nasdaq. Alternatively, an Asian may step into the frame, such as the Hong Kong Stock Exchange. These non-European suitors could be emboldened by the lower pound and the likely fall in the value of the LSE’s shares if the DB deal fails.

Regardless of what unfolds, Brexit will be on everyone’s lips. 

Brexit is already having a corrosive effect on the UK’s business ties with the Continent. There may be few signs the UK economy had taken a hit in the immediate aftermath of the EU referendum, but the possible decline of the LSE deal is just the sort of longer-term damage many economists warned about before the vote.

One of the key issues on the list for EU and British Brexit negotiators — in addition to citizen rights, and the ongoing debate over a so-called ‘divorce bill’ — will be how to uphold all the deals and investments negotiated on the assumption that the UK belongs to the EU. As the apparent LSE-DB breakup seemingly demonstrates, many investors just cannot afford to wait for the politicians to sort it all out.

Mutual recognition hope for lawyers

I have written recently about the legal issues caused by the uncertainty triggered by Brexit. I feel that it is becoming increasingly evident that the ramifications of the vote to Leave the EU last summer were never fully considered by the British government, especially within the legal sector.

Such legal issues include the practise of law in a post-Brexit UK. I noted last year that many practising solicitors in the UK were opting to register with the Irish Law Society in order to ensure they could continue to practise EU law.

However, there perhaps could be a solution to hand for those lawyers worrying about their qualifications in the event of the UK eventually withdrawing from the EU: mutual recognition.

For only recently, a former senior trade minister said that the ‘genuinely mutual benefits’ of professional recognition would mean that UK lawyers could expect a continuation of their right to practise in EU jurisdictions post-Brexit.

Lord Maude of Horsham, who was Minister of State for Trade and Investment in former Prime Minister David Cameron’s government, told a press briefing it would be ‘very surprising if mutual recognition arrangements’ could not be sorted out relatively easily.

Lord Maude, now a senior adviser at US firm Covington, was also a government minister from 1987-1992, and had a direct role in the design of Directive 89/48/EEC on which subsequent professional recognition regulations were based.

Such continuation of the mutual recognition regulations was likely, Lord Maude said, because the ‘benefits on both sides’ were now well-established.

The former Swedish Prime Minister Carl Bildt, who is also a senior adviser at the same firm, identified ‘justice’ as an area where early agreement between the EU and UK can be reached.

I wrote recently on the very topic of ‘justice’ with regards to the Brexit and the upcoming negotiations. I noted that justice does not seem to feature highly on the UK government’s list of priorities entering the negotiations. The UK government, as we are all too aware of, prefers instead to prioritise economic matters rather than legal matters. This is despite the fact that the UK co-operates closely with other EU Member States in relation to matters of justice, and law and order. Whilst I feel that justice is not recognised as an area of priority entering the Brexit negotiations the UK government, Mr Bildt’s comments regarding justice being a potential area for early agreement seems promising. (I will keep my fingers crossed.)

However, Mr Bildt did warn that while the UK government expected Art 50 and interim arrangements could happen ‘in parallel’, the EU negotiating team did not match that expectation. ‘Their mandate is just a divorce mandate,’ he noted.

Yet perhaps lawyers’ concerns are not entirely without foundation, nor do they look set to be reassured soon. Jonathan Goldsmith, the former secretary-general of the Council of Bars and Law Societies of Europe (CCBE), commented:

‘The lawyers’ directives are not standalone but depend on what will happen on mutual recognition and the single market overall. If we are out of the single market without exceptions, and have to return to WTO rules, then there are big problems.’

As we know from Prime Minister Theresa May’s recent Brexit speech, the UK goverment is now committed to a so-called ‘hard Brexit’ which would see the UK withdraw entirely from the EU, including the Single Market. Thus, Mr Goldsmith’s comments are indeed worrying.

Mickael Laurans, who is the Head of the Law Society’s Brussels office, said the qualified lawyers transfer scheme would mean continued recognition for EU lawyers in England and Wales. However, he did also note that reciprocal agreement for solicitors and barristers post-Brexit ‘would depend on the goodwill’ of the EU’s 27 member states. Perhaps it is just me, but that does not ring with optimism.

We can hope that the current model might be used as a foundation to build something constructive in the future and regardless of the deal that eventually is negotiated between the UK and EU. But it appears that until we are informed of the final agreed deal, a lot of uncertainty and question marks will persistently remain, particularly in the legal sector.

UK justice is not a priority during Brexit negotiations.

I have recently written about the legal ramifications of Brexit, whether in relation to the jurisdiction of the ECJ to the registration of British lawyers with the Irish Law Society.

It is evident that the overall majority decision of the UK to vote to withdraw from the EU has wide-reaching consequences, particularly within the legal sector. A pity that this was never fully addressed or considered during the referendum campaign – by either side – but I suppose it does not suit to dwell on the past, and the lack of clarity provided during the campaign.

Yet, following the discourse surrounding Brexit since the referendum last summer, it becomes apparent that the economy and immigration seems to be high on the UK government’s priorities. Whether discussing trade agreements, creating a stronger economy, reducing EU red tape, or debating freedom of movement and the need for borders (see: Northern Ireland), it seems the UK government is only interested in the financial aspect of Brexit. It seems to have forgotten about other issues, let alone law and order.

Interestingly enough, the Justice Committee in the UK Parliament is currently undertaking an inquiry into the implications of Brexit for the UK justice system. With regards to the scope of this inquiry, the Committee is interested in views on the likely effects of Brexit on the processes of criminal and civil justice, as well as views on the financial effects on the legal sector and business and the economy more widely. It is also interested on steps which should be taken in the process of Brexit negotiations or by other means to minimise any adverse effects and enhance any positive effects.

It was whilst giving evidence to this Committee inquiry that criminal law practitioners recently highlighted the challenge that leaving the EU will pose to international criminal justice cooperation. Moreover, it was suggested that the topic of justice is not currently high on the UK government’s Brexit agenda.

Members of the Criminal Law Solicitors’ Association and Criminal Bar Association spoke in relation to the importance of the European arrest warrant (EAW). However, both representative bodies told Committee members the UK government had not consulted them on the mechanisms for the EAW to continue post-Brexit. It seems rather incredible that the UK government would fail to consult on such an important legal issue, but there we have it.

CLSA member and solicitor Michael Gray, founding partner of Gray & Co Solicitors, told MPs it was disappointing that the justice debate had not happened sooner:

‘because it would have been useful for the public generally to see what an intricate, complicated web of cross-border cooperation we have in place, and that people have worked hard to put in place’.

Mr Gray was responding to Committee member Keith Vaz MP, who had noted justice had not been a priority for the UK government. Indeed, Mr Vaz pointed out that discussions pertaining to Brexit has consistently focused only on trade, immigrations, and the economy to date.

Earlier in the session Mr Gray told the committee that the EAW was a ‘very powerful tool’ being used on a daily basis, adding that it was not just an important tool in the fight against crime, but also in bringing justice for all those concerned.

However, he predicted ‘huge problems’ in future negotiations, noting Norway and Iceland’s lengthy efforts to establish their own bilateral extradition agreements that mirror the EAW.

Meanwhile, CBA chair Francis FitzGibbon QC acknowledged there was no reason why access to the European Criminal Records Information System should not be negotiable. At present, no non-EU member states can access the system, which was set up in 2012.

However, Mr FitzGibbon warned that to get access to that kind of information, the UK would have to be compliant with EU data protection standards. Moreover, Mr FitzGibbon pointed out that difficulties would arise when the UK was outside of the EU with regards to the sharing of data. This would subsequently cause problems for co-operation across the board when it came to law and order matters.

In addition, Mr FitzGibbon predicted that the implications of the judgment on surveillance handed down in Secretary of State for the Home Department v Watson and Others in the ECJ, and forthcoming data protection reforms, could potentially cause ‘significant’ problems post-Brexit.

It is obvious that there are many issues to contend with and consider regarding Brexit, particularly in the legal sector. I will follow the Justice Committee’s inquiry, which evidently is much-needed. It is simply frustrating to read the comments given by representatives from the CLA, and CBA, and remember how little consideration was truly given to the potential consequences of the UK withdrawing from the EU when the decision to propose holding a referendum first came to pass.

The UK government only appears concerned with matters of law and order and justice when constantly repeating that with Brexit, the UK courts are now sovereign. It is a vague mention, and it is not enough. More thorough consideration is needed going forward.